Philip Bertie Petrides.

Student's cases : illustrative of all branches of the law online

. (page 27 of 29)
Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 27 of 29)
Font size
QR-code for this ebook


it has a strong interest which would induce him to withhold
it, a very strict examination would be required.



There are no Degrees of Secondary Evidence ; consequently Parol
Evidence of the contents of a Deed may be given although
an attested copy appears to be in existence.

DOE v. EOSS. [1840]

(10 L. J. Ex. 201 ; 4 Jur. 321 ; 7 M. & W. 102 ; 8 D. P. C. 389.)

An attorney having been subpoenaed to produce a deed in his
possession which he had received from Mr. Weetman, a client,
declined to do so on the ground that he had a lien upon it for
professional business done for Mr. Weetman. A copy of the
deed was then offered in evidence by the plaintiff, but as it
appeared to have been made an attested copy and not to have
been stamped, it was rejected. The plaintiff then proposed to
read, as secondary evidence of the contents of the deed, the
notes taken by a shorthand writer of a former trial, in an action
brought by the present lessors of the plaintiff against Mr.



DOCUMENTARY EVIDENCE. 359

Weetman, who had then produced the original deed as part of
his case. It appeared from the shorthand notes that the deed
had not been read by the officer of the Court but that its
contents had been stated by the junior counsel for the defendant
and had been taken down by the shorthand writer. This
evidence was admitted although objected to by the counsel for
the defendant.

Held, by the Court of Exchequer, that secondary evidence
of the deed was admissible, and that the evidence had been
properly admitted.

There are no degrees of secondary evidence. If a party
has a copy of a deed in his possession, and, instead of pro-
ducing it, thinks fit to offer parol evidence of its contents,
that woidd be an argument to the jury that the copy if pro-
duced would be adverse to his case. But there is no special
ground for holding that parol evidence in such a case may
not be adduced.



Where a Contract is required to be in writing by the Statute of
Frauds all its terms must appear, and no Evidence may be
given of a precedent variation thereof ; but Evidence may
be given of a subsequent variation in writing or of a Waiver
or Abandonment of the written Contract whether by writing
or parol. Where a Contract not required to be in writing is
reduced into writing, generally Evidence of a precedent or
collateral variation thereof is inadmissible ; but Evidence
may be given of a subsequent Variation or Waiver if made
before Breach of the Contract.

GOSS v. NUGENT. [1833]

(2 L. J. K. B. 127 ; 5 B. & Ad. 58 ; 2 N. & M. 28.)

By agreement in writing the plaintiff contracted to sell the

defendant several lots of land and to make a good title to

them, and a deposit was paid. It was afterwards discovered

that a good title could not be made to one of the lots, and it



360 EVIDENCE.

was then verbally agreed between the parties that the vendee
should waive the title as to that lot. The vendor delivered
possession of the whole of the lots to the vendee, which he
accepted.

In an action brought by the vendor to recover the remainder
of the purchase-nioney, the declaration stated that the vendor
agreed to deduce a good title to all the lots except one, and that
the vendee discharged and exonerated him from making out a
good title to that lot and waived his right to require same.

Held, by the general rules of the common law, if there be
a contract which has been reduced into tori ting, verbal
evidence is not alloivcd to be given of what passed between
the parties, either before the written instrument ivas made
or during the time that it ivas in a state of preparation, so
as to add to or subtract from, or in any manner to vary or
qualify the toritten contract ; but after the agreement has
been reduced into writing, it is competent to the parties, at
any time before breach of it, by a new contract, not in
/^riling, either altogether to waive, dissolve, or annul the
former agreement, or in any manner to add to or subtract
from, or vary or qualify the terms of it, and thus to make
a new contract ; which is to be proved partly by the written
agreement and partly by the subsequent verbal terms
engrafted upon what will be thus left of the written agree-
ment.

If the present contract did not come under the Statute of
Frauds it would hare hem competent to the parties to it to
dispense with requiring a good title to be made to the lot in
question, and the action might have been maintained, but as
it came within the Statute of Frauds, 29 Car. 2, c. 3,
6'. 4, oral testimony was not admissible to show the waiver
of the vendee's right to a good title as to that lot, inasmuch



DOCUMENTARY EVIDENCE. 361

as the effect of that waiver was to substitute a different
contract for the one in ivriting, and by this statute in every
action brought to charge a person on a contract for the sale
of lands, the whole agreement must be in writing.

Our opinion is not formed upon the stipulation about the
title being an essential part of the agreement, but upon the
general effect and meaning of the Statute of Frauds, that
the contract now being brought forward bg the plaintiff is
not ivholly a contract in writing. We do not sag that
verbal evidence may not be given of customs and usages
applicable to the subject-matter of the written contract
where the contract is silent ; that has been done in a great
variety of instances.

It is to be observed that the statute docs not say in dis-
tinct terms that all contracts of agreements concerning the
sale of lands shall be in writing. All that it enacts is that
no action shall be brought unless they are in writing, and as
there is no clause in the Act which requires the dissolution
of such contracts to be in writing, it should rather seem that
a written contract concerning the sale of lands may still be
waived and abandoned by a new agreement not in ivriting,
so as to prevent either party from recovering on the contract
ivhich vjas in writing.

Note. — To the general rule contained in the head-note there are
several exceptions, for parol evidence may be given to prove fraud,
duress, illegality, want or failure of consideration, mistake of fact,
or that the bargain was harsh and unconscionable under the
Moneylenders Act, l l J00 (63 & 64 Vict. c. 51). Parol evidence is
also admissible in the four cases which follow.



362 EVIDENCE.

Parol Evidence may be given to incorporate into a Contract a
Custom which is not inconsistent with the Terms of the
Written Agreement.

SMITH v. WILSON. [1832]
(1 L. J. K. B. 194 ; 3 B. & Ad. 728 ; 37 R. E. 536.)
In a lease it was provided that at the end of the term the tenant
should have not less than 10,000 rabbits on the premises, to be
taken and paid for by the landlord, the defendant, at the rate of
60/. " per thousand." Evidence was offered on behalf of the
defendant to show that the term " thousand," when applied to
rabbits, in that part of the country meant 100 dozen. The
admissibility of the evidence was objected to on the ground that
the term had a legal fixed acceptation known to the law. The
evidence was, however, admitted, and its effect in the result
was that the defendant obtained a verdict.

A rule having been obtained for setting aside the verdict and
for a new trial on the ground that this evidence was improperly
admitted —

Held, that the evidence was 'properly admitted and the
rule must be discharged.

It must be supposed that the parties to the deed used the
word " thousand" tvith reference to the subject-matter accord-
ing to the meaning which it received in that part of the
country.

Parol Evidence may be given to explain a Latent but not a
Patent Ambiguity in a Document.

DOE v. NEEDS. [1836]
(6 L. J. Ex. 59 ; 2 M. & W. 129 ; 46 E. E. 52.)

The testator devised a house to George Gord, the son of John
Gord ; another to George Gord, the son of George Gord ; and a
third to George Gord, the x<>» of Gord. The question arose as to
which of the two George Gords was intended to have the third
house.



DOCUMENTARY EVIDENCE. 363

Held, that evidence of the testators declarations was
admissible to show that he intended the house devised to
11 George the son of Gord^ should go to George, the son of
George Gord.

If upon the face of the devise it had been uncertain
whether the devisor had selected a particular object of his
bounty, no evidence would have been admissible to prove that
he intended a gift to a certain individual, for that woidd
be a case of patent ambiguity. But here, on the face of the
devise, no such doubt arises, for the devisor has clearly
selected a particular individual as the devisee. As the will
does describe the object intended, the evidence of the declara-
tion of the testator has not the effect of varying the
instrument in any way whatever ; it only enables the Court
to reject one of the objects to which the description applies,
and to determine which of the two the devisor understood to
be signified by the description which he used in the will.



Evidence may be given of a collateral Parol Agreement which is
not inconsistent with the Written Agreement.

DE LASSALLE v. GUILDFORD. [1901]
(70 L. J. K. B. 533 ; (1901) 2 K. B. 215 ; 84 L. T. 549 ;

49 W. R. 467— C. A.)

Upon the execution of a lease of a dwelling-house, the land-
lord verbally warranted that the drains were in good condition.
The lease contained covenants by the lessee to do the inside,
and by the lessor to do the outside repairs, but was silent as to
the then condition of the drains.

Held, that the lease did not contain the tvhole of the con-
tract between the parties, as it was entirely silent about the
drains. The warranty as to the drains was what induced



364 EVIDENCE.

the tenancy^ and it in no way affected the terms of the
tenancy during the three //curs, which was all the lease dealt
with. The 'warranty in no way contradicted the lease, and
without it the lease tvoidd never have been executed.

The parol warranty being collateral to the lease and not
contradicting the lease was admissible in evidence, and the
tenant ivas entitled to main/ ''tin an action for the breach
of it.

Note. — III Greswolde- Williams v. Barneby, 83 L. T. 708, the
plaintiff sued for breach of warranty contained in an agreement
for a lease which was not incorporated in the conveyance. It was
held that no action la}' on the warranty, on the ground that where
a preliminary contract is superseded by one of a superior character
then the superior contract prevails. It is submitted that this
decision, being in conflict with the Court of Appeal decision in
De Lassulle v. Guildford, is not good law.



Evidence is admissible to show that a Document which on the face
of it appears to be a Written Agreement was subject to a
condition which was not fulfilled and that no Agreement was
really come to.

PYM v. CAMPBELL AND OTHEES. [1856 J

(25 L. J. Q. B. 277 ; 27 L. T. 122 ; 4 W. E. 528 ; 20 Jur. (N. S.) 641 ;

6 E. & B. 370.)

The plaintiff brought this action for breach by the defendants
of an agreement in writing to purchase from him three eighth
shares of a certain invention for grinding ores and separating
the metal therefrom. The agreement in qiiestion had been duly
signed by the plaintiff and the defendants.

For the defendants, evidence was given that the defendants
at the time of the negotiation declined to purchase the shares
in the invention unless one Abernethy, an engineer, approved



PRESUMPTIONS AS TO DOCUMENTS. 365

of the machine, and that, as Abernethy was absent and one of
the defendants could not conveniently return to sign the docu-
ment, it was agreed between the parties that the defendants
should sign the memorandum conditionally upon Abernethy's
approval being obtained ; and that Abernethy had disapproved
of the machine.

Believing this evidence, the jury gave a verdict for the
defendants, for whom judgment was entered.

Held, by the Exchequer Chamber, on appeal, that the
judgment must be upheld.

That the evidence tvhich had been given as to why the
agreement ivas signed was admissible, as it was not evidence
to vary or alter an actual written agreement but to shoiv
that the paper tvas not an agreement. The parties never
had an agreeing mind, but signed the paper for convenience,
leaving it to take effect or not, according as Abernethy did
or did not approve ; and there tvas nothing to prevent their
doing so.



PRESUMPTIONS AS TO DOCUMENTS.



Documents thirty years old coming from proper Custody prove

themselves.

DOE v. PHILLIPS. [1845]
(15 L J. Q. B. 47 ; 8 Q. B. 158 ; 10 Jur. 34.)

A deed more than thirty years old was produced from the
custody of the plaintiff's attorne}^. There was evidence that
the attorney had acted for the family of the defendant, who
were beneficially interested in the premises to which the deed



366 EVIDENCE.

related, and it was not shown for whom the attorney held the
deed.

Held, it certainly is not necessary to show that such a
document as this comes from what, in strictness, would be
its legal custody. It is sufficient if its actual custody be
reasonable and natural.

In this case there ivas sufficient prima facie evidence of
the deed coming from the proper custody, and it was, there-
fore, properly admissible without proof of execution.



It is a Presumption of Law that Alterations in a Deed were made
before Execution. There is no such presumption in the case
of a Will.

DOE v. CATOMOEE. [1851]

(16 Q. B. 745 ; 20 L. J. Q. B. 364 ; 83 E. E. 714.)

On the trial, before Parke, B., in a lease and assignment,
when produced in evidence, there appeared certain erasures and
interlineations in parts of the deeds which were not material ; not
being either in the covenant to insure or in the proviso for
re-entry. It was objected that the deeds were void, unless
evidence were given to explain when and by whom the erasures
and interlineations had been made. The learned judge left it
to the jury to say upon the deeds themselves whether such
erasures and interlineations had been made before or after the
execution of the deeds. The jury found that they had been
made before, and returned their verdict in favour of the
plaintiff.

Held, In) the Exchequer Chamber, that the defendant had
no rigid to complain of the course pursued by the learned
judge at the trial. The doctrine laid down in a note
(1) [136J in Hargrave and Butler's edition of Coke upon



PRESUMPTIONS. 367

Littleton that " y Tis to be presumed that an interlining, if
the contrary is not proved, was made at the time of making
the deed" seems to rest upon principle. A deed cannot be
altered, after it is executed, without fraud or wrong ; and
the presumption is against fraud or wrong. A testator
may alter his will without fraud or wrong after it has been
executed, and there is no ground for any presumption that
the alteration was made bejore the will was executed.



PRESUMPTIONS.



Seven Years' Absence without good cause creates presumption
of Death sometime during that time.

NEPEAN v. DOE. [1837]
(2 M. & W. 894 ; 46 B. E. 789.)

In this action it was very material to ascertain the exact date
of the death of Matthew Knight, who went to America at the
end of 1807, and of whom, with the exception of one letter
announcing his arrival, nothing had been heard for twenty years.

Held, where a person goes abroad and is not heard of
for seven years the laiv presumes the fact that such person
is dead, but not that he died at the beginning or the end of
any particular period during those seven years ; that if it
is important to anyone to establish the precise time of such
persons death, he must do so by evidence of some sort, to be
In id before the jury for that purpose, beyond the mere lapse
of seven years since such person was last heard of

Note. — The presumption is now created by absence for seven
years without proof that the person went abroad.

Note also that the presumption of death is negatived where the
person who is not beard of for seven years has reason to conceal
bis whereabouts.



368 EVIDENCE.

There is no presumption from Age or Sex, &c., as to which of two
persons destroyed by the same calamity died first.

WING v. ANGRAVK [1860]

(30 L. J. Ch. 65; 8 H. L. 183.)

John Underwood, his wife and two children were swept off
the deck of a vessel by one wave, and there was no distinct
evidence that any one was seen later than another, although
evidence was given that the husband was a strong man and a
good swimmer, and the wife was a weak and delicate woman
and could not swim at all.

The wife made a will by which, under a power of appointment
reserved to her in her father's will, she bequeathed her property
to her husband, " and in case my said husband shall die in my
lifetime," to William Wing. The husband made a will in the
same terms. No evidence was given to prove that one survived
the other.

Held, by the House of Lords, that they would not assume
that one survived the other. That William Wing could not
claim under cither will, and that the property ivent over to
those who by the father's will tvere to take in default of
appointment by Mrs. Underwood.

The union of the two titles in William Wing did not affect
the case, for he could not succeed in one because lie did not
succeed under the other, but was bound to establish his
claim clearly under one or the other.

There is not in the English law {unlike the Code
Napoleon, which had been relied on) any presumption from
age, sex, or other circumstance as to the survivorship of
one out of several persons who arc destroyed by (he same
calamity.



ESTOPPEL. 369



ESTOPPEL.



A Person is estopped from denying the Truth of Recitals or
Contents of a Deed he has made.

BOWMAN v. TAYLOE. [1834]
(4 L. J. K. B. 58 ; 2 Ad. & E. 278 ; 4 N. & M. 264 ; 41 E. E. 437.)

The declaration in covenant alleged a deed by which the
plaintiff granted to the defendant a licence to use certain looms,
by which deed it was recited that the plaintiff had invented
certain improvements, &c. in power-looms, and had obtained
letters patent and caused a specification to be enrolled.

Held, that the defendant was estopped from pleading that
the plaintiff iv as not the inventor, that it was not a new
invention, and that no specification had been enrolled.

An estoppel operates because it concludeth a man to allege
the truth by reason of the assertion of the party that the
fact is true. If a party has by his deed directly asserted
a specific fact, it is impossible to say that he shall not be
precluded from disputing that fact thus solemnly admitted
by him on the face of his deed.



A Tenant is estopped from denying his Landlord's Title.

COOKE v. LOXLEY. [1792]
(5 T. E. 4; 2 E. E, 521.)

In an action for use and occupation by an incumbent against
a tenant of the glebe lands who had paid him rent, the defendant

J. B B



370 EVIDENCE.

sought to give evidence of a simoniacal presentation by the
plaintiff in order to avoid his title.

Held, the general rule was that in such an action as this
the tenant could not dispute the landlord's title, for it ought
not to be permitted to a tenant who occupies land by the
licence of another to call upon that other to show the title
under which he let the land.



A Judgment in an Action operates as an Estoppel.

EX PARTE BANK OF ENGLAND, IN RE SOUTH
AMERICAN AND MEXICAN COMPANY. [1895]

(1 Ch. 37 ; 12 R. 1 ; 71 L. T. 594 ; 43 W. R. 131.)

In an action brought by the Bank of England against the
American and Mexican Company, judgment was given for the
Bank of England by consent of the parties for 100,000/. and
costs after the case had been partly tried. The company was
subsequently ordered to be wound up, and the bank claimed to
prove for the amount still unpaid on the judgment. The
official receiver and liquidator rejected the proof on practically
the grounds set out by the company in their defence to the
action

Held, that a judgment by consent is intended to put a
stop to litigation between the parties just as much as a
judgment which results from the decision of the Court after
the mutter has been fought out to the end, and that in either
case the judgment acts as an estoppel.



COMPETENCY OF WITNESSES. 371



COMPETENCY OF WITNESSES.



A Lunatic may give Evidence where he is of competent under-
standing to give rational Evidence and is aware of the
Nature and Obligation of the Oath.

E. v. HILL. [1851]
(20 L. J. M. C. 222 ; 2 Den. C. C. 254.)

Hill was charged with the offence of manslaughter. The
deceased and Donelly were both lunatic patients at an asylum
at the time of the supposed injury to the deceased. Donelly
suffered from the delusion that he was constantly surrounded by
spirits who continually talked to him. But for this delusion he
was perfectly rational. In spite of his evidence being objected
to he was called, and the prisoner convicted.

Held , by the Court for Crown Cases Reserved, his
evidence was admissible.

If a lunatic be tendered as a witness, it is for the judge
to examine whether the lunatic be of competent understand-
ing to give rational evidence, and is aware of the nature and
obligation of an oath. If the judge is satisfied on these
points he should admit the lunatic as a witness.

Before being sworn, the lunatic mag be examined and
witnesses mag be called as to his competency .

If he be admitted, it is for the jury to judge whether his
evidence be tainted by his insanity, and to decide upon the
degree of credit to be attached to it.



b b 2



372 EVIDENCE.

The Privilege attaching to Communications made by a person to
his Solicitor in his professional capacity does not extend to
Communications made in furtherance of any Criminal or
Fraudulent Purpose.

E, v. COX AND EAILTON. [1884]

(54 L. J. M. C. 41 ; L. E. 14 Q. B. D. 153 ; 52 L. T. 25 ;
33 W. E. 396 ; 49 J. P. 314 ; 15 Cox, 611.)

The two prisoners were indicted for a conspiracy with intent
to defraud Henry Munster. Railton had been the defendant
in a libel action brought against him by Munster, in which the
latter obtained 40s. damages and costs. Execution being levied
to obtain these costs, the sheriff was met by a bill of sale from
Eailton to Cox. Railton and Cox had been previously partners,
but a deed was produced by Railton to show that the dissolution
had taken place before the judgment, whereas as a matter of
fact it had taken place after.

Railton and Cox had consulted their solicitor as to the
possibility of defeating the execution by a bill of sale. At the
trial the solicitor was called to give evidence of what had taken
place at the consultation. In spite of an objection to this
evidence it was admitted and the prisoners convicted.

Held, by the Court for Grown Cases Reserved, that the
evidence was properly ((dm it ted.

The privilege attaching to communications made by a
person to a solicitor in his professional capacity does not
extend to communications made in furtherance of any crimi-
nal or fraudulent purpose.

When upon the trial of such person the solicitor is called
upon to disclose what passed betiveen him and the accused
at the professional consultation, the Court must, upon the
special facts of each particular case, judge of the admissi-
bility of the proposed evidence. Although the consultation
being held before or after the commission of the offence is



COMPETENCY OP WITNESSES. 873

not decisive, the Court must in each case determine, upon
the facts given in evidence, whether it seems probable that
the accused consulted the solicitor not after the commission
of the crime for the legitimate purpose of being defended,
but before the commission of the crime for the purpose of
being guided and helped in committing it.



A Witness is not bound to incriminate himself. The Court must
judge whether there is any reasonable ground to apprehend
danger to the Witness from his being compelled to answer.

R. v. BOYES. [1861]
(30 L. J. Q. B. 301 ; 5 L. T. 147; 7 Jur. 1158; 1 B. & S. 311.)

On the trial of an information laid by the Attorney- General
by order of the House of Commons against the defendant for
bribery at a parliamentary election, a person to whom it was
charged that the defendant had given a bribe was called as a
witness and refused to answer any question connected with the
defendant, on the ground that the answer would tend to
criminate him ; a pardon under the Great Seal was then handed
to the witness, but he still refused to answer, on which the
presiding judge compelled him to answer, and on his evidence
the defendant was convicted.



Online LibraryPhilip Bertie PetridesStudent's cases : illustrative of all branches of the law → online text (page 27 of 29)