EVIDENCE. 



119 



deeds, even the admission of the party, that it is his 

 aeeil, or that lie executed it, is not, at least where 

 there is a subscribing witness, proof of the due exe- 

 cution of it. If the instrument is lost, upon proof of 

 the loss (and the party to whom it belongs may be 

 sworn to prove the loss), the contents of it may be 

 established by a copy or other proper proof. After 

 an instrument has been executed thirty years, and 

 any possession has followed, t>r right been exercised 

 in conformity to it, it is admissible without any proof 

 by witnesses. In respect to written evidence, a 

 question often occurs, how far parole (oral) evidence 

 is admissible, to control or affect it. There are two 

 sorts of ambiguities affecting written instruments. 

 One is called latent ambiguity, and the other patent 

 ambiguity. The latter is such as appears upon the 

 f.ice of the instrument itself, from the doubtful nature 

 of the terms used. The former is where the terms 

 of the instrument are of themselves certain and free 

 from doubt ; but the ambiguity arises from some ex- 

 trinsic matter or fact, collateral to the instrument. 

 As, for instance, if A grant his manor in B to C; 

 and he has two manors in B, the whole difficulty 

 arises, not from the instrument itself, but from the 

 extrinsic fact that he has two manors ; for if he had 

 but one, that would surely pass. If A devise an 

 estate to his nephew B, and he has no such nephew, 

 but he has a nephew C, there is the same latent am- 

 biguity. In each of these cases, and indeed in all 

 cases of latent ambiguity, parole evidence is admissi- 

 ble to show what or who was intended ; for as the 

 difficulty arises from parole evidence, that may also 

 be resorted to in order to remove it. But in cases 

 of patent ambiguity, it is otherwise. Parole evidence 

 cannot be admitted to supply a meaning which the 

 words do not, of themselves, import, or to give cer- 

 tainty, where the words are uncertain. Indeed, the 

 general rule in our law is, that no parole evidence is 

 admissible to vary, explain, or control written instru- 

 ments, to add new terms to them, or to limit or re- 

 strain the import of the words used in them. The 

 ground of this rule is the general insecurity, which 

 would arise from allowing the deliberate acts of 

 parlies in writing to be controlled by evidence so 

 variable, and subject to so much doubt, as that is, 

 which depends upon the recollection of witnesses. 

 Written instruments are presumed to be prepared 

 with caution and deliberation, and to contain the 

 best evidence of what the parties intend, and of all 

 which they intend. There are, however, some ex- 

 ceptions to the rule, founded on general convenience, 

 which illustrate rather than weaken its original pro- 

 priety. Parole evidence may be admitted to show 

 fraud or illegality in an instrument. So, to show 

 that a deed, though dated on one day, was actually 

 delivered on another; for this does not vary its legal 

 effect, but only shows when it began to operate. 

 So, a custom may be shown, bearing upon the subject 

 matter of a contract and creating an obligation, 

 though not provided for in it, because contracts are 

 presumed to be made with a tacit reference to the 

 known customs of the place, and to include the cus- 

 tomary obligations and rights, if there is nothing in 

 the contract, which controls the operation of the cus- 

 tom. So, the usages of trade are, for a like rea- 

 son, admissible, not to supersede, but, in effect, 

 to expound the real intention of the parties. So, in 

 certain cases, courts of equity will allow parole evi- 

 dence to establish a mistake in a written instrument; 

 but this they do only upon the clearest proofs in an 

 adverse case, when the mi-take operates in fact as a 

 fraud upon the party. So, in relation to ancient in- 

 struments, such as charters, where there is some am- 

 ''iguity in the words, a long course of practice under 

 U;em is considered as good proof of the true original 



exposition of them; and parole evidence for this pur- 

 pose is admissible; for though the words are now un- 

 certain, they may have been certain in the age when 

 they were used; and the parties, by their King ac- 

 quiescence, are presumed to have put the proper 

 construction on them. In all such cases it is the ob- 

 ject of judicial tribunals, as far as they may, to 

 uphold rather than defeat instruments. There are, 

 also, certain cases, in which express statute pro- 

 visions exist, prohibiting any but written proofs of 

 certain contracts. In our law, the principal statute 

 on this subject is commonly called the statute of 

 frauds, from its object being to suppress frauds. 

 Among the contracts embraced in this statute are 

 contracts for the sale of lands or interests in bands; 

 contracts for the sale of goods above a certain value, 

 as in England above .10; contracts to become an- 

 swerable for the debt, default, or miscarriage of 

 another person ; contracts to bind executors and ad- 

 ministrators to answer damages out of their own 

 estates; and contracts, which are not to be performed 

 within the space of a year after they are made. 

 Probably, in most countries, the civil policy has 

 pointed out some express provisions of a like nature, 

 by which a written contract is made indispensable to 

 create a legal obligation. 



We will close this outline of some of the leading 

 principles of our law on this subject with an enume- 

 ration of a few rules, which did not properly fall 

 under any former head. 1. On whom the burden of 

 proof (onus probandi) lies. Generally it rests on the 

 party, who alleges the affirmative of any proposition, 

 to establish it by suitable proof. But sometimes 

 even he, who alleges a negative, must prove it ; as, 

 in all cases where the party sets up a criminal neglect 

 or omission, he must establish such neglect or 

 omission by suitable proof; und it is not the duty 

 of the party charged to establish his innocence, for 

 the law will presume it in his favour, until there is 

 some proof to the contrary. 2. The best evidence 

 that the nature of the case admits, is to be produced. 

 The meaning of this rule is not, that, in all cases, 

 the highest possible evidence is to be adduced ; but 

 such evidence as presupposes that no better is behind, 

 and in the power of the party. The evidence, for 

 instance, of a written contract is the original instru- 

 ment ; and, therefore, a copy is not generally admis- 

 sible. But if the original is proved to be lost, then 

 a copy is evidence ; for that is the next best proof. 

 In such case, the copy must be proved to be such. 

 Again, oral evidence will not be admitted if there is 

 a copy in existence ; but if there is no copy, then it 

 is admissible. But where the best evidence is given, 

 it is not necessary to fortify it by producing afl that 

 exists of the same kind. As if there be two wit- 

 nesses to a deed, it is sufficient to prove it by one. 

 There are certain exceptions to this rule, founded on 

 public considerations. As, for instance, the original 

 of a public record need not be produced ; but a copy 

 is sufficient ; for the public records ought, for general 

 convenience and preservation, to remain always in 

 one place. So public officers, acting under written 

 commissions, need not show them ; but their acting 

 as officers publicly is evidence, primd facie, of their 

 authority ; for it would be criminal so to act without, 

 authority. So, where the fact lies more immediately 

 in the power of the other party, or his acts conclude 

 him as if a person act as collector of taxes, or as a 

 clergyman in orders that is sufficient evidence for 

 third persons to establish his official character. 3. 

 Generally, facts only are evidence, and not the mere 

 opinions of witnesses. But there are certain excep- 

 tions; as, in questions of science or trade, persons of 

 skill may be asked their opinions. A physician may 

 j be asked if a particular wound or injury would, in 



