Meaning of the evidence is in plained by this act, if the signature shall be so placed at or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will, and that no such will shall be affected by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said act or this act shall be operative to give effect to any disposition or direction which is underneath or which follows it, nor shall it give effect to any disposition or direction inserted after the signature shall be made." § 217. Although documents are necessarily brought rule that parol before the tribunal by means of parol or verbal eviferior to written. dence, that evidence must be limited to giving such a general description of the document as shall be sufficient to identify it, and deposing to the real evidence afforded by its visible condition. Thus a keeper of re cords may speak as to the condition in which they are, but not as to their contents (r). It is commonly said that "parol evidence is inferior or secondary to written evidence;" that "written evidence is superior to verbal," &c. (s); but these axioms must be understood with much allowance and qualification. That evidence in writing, using the phrase latiori sensu, is superior to or even more satisfactory than verbal evidence cannot, as a general proposition, be supported. Suppose a man witnesses a certain transaction, and after he goes home commits a narrative of it to paper, or even puts his seal to it, and fifty men attest it as witnesses; whether his memory or that paper would be found the best and more trustworthy proof of what took place would depend very much on circumstances; such as the natural strength of his memory, whether the transaction were of a nature likely to make an impression on his mind, the time that has elapsed, &c. It is true that the writing has the advantage of permanance: it will not decay so soon as the memory of the witness-" Vox emissa volat; litera scripta manet" (t) :—but on the other hand the witness may be cross-examined, and compelled to give a circumstantial account of all he heard and saw, while the writing only preserves what was committed to it in the first instance, without power of addition or explanation— "Testibus non testimoniis credendum" (u). Add to this, that the evidence of the witness would be given under the sanction of an oath. So, considered merely with reference to probative force, the notes of the judge at a trial would probably be deemed very satisfactory evidence of what took place at it. They are not however receivable as such. A judge only takes notes for his (r) Leighton v. Leighton, 1 Str. 240. (s) Contra scriptum testimonium non scriptum testimonium non fertur. Cod. lib. 4, tit. 20, 1. 1. (t) Broom's Max. 517, 2nd Ed.; 1 Johns. (N. S) Rep. 571. (u) Burnett's Crim. Law of Scotland, 495. own private convenience; there is no law requiring him to do so (x). In former times, the judges either made no notes, or notes much more scanty than at present; and of Pratt, C. J., in particular, it is said that he never made any (y). The truth is, that the maxims in question have three applications. 1. In the case of records, instruments, &c. which the policy of law requires to be in writing and executed with prescribed formalities, no derivative, and consequently no parol (z), evidence of their contents is receivable, until the absence of the original writing is accounted for; neither is parol or other extrinsic evidence receivable to explain, add to, or vary it. 2. A like rule holds where writing or formalities are not required by law, but the parties have had recourse to them for the sake of greater solemnity and security; as where a man executes a bond to secure the payment of money when an unattested writing would have been sufficient, or where a contract for the sale of goods under £10 (and consequently not within the Statute of Frauds) is reduced to writing, &c. (a). 3. Where the &c.(a). contents of any document are in question, either as a fact in issue in a cause or a subalternate principal fact, the document is the proper evidence of its own contents, and all derivative proof is rejected until its absence is accounted for (b). But where a written instrument or document of any description is not the fact in issue, and (x) Per Lord Abinger, C. B, in Leach v. Simpson, 5 M. & W. 311. (y) See the note to 17 Ho. St. Tr. 1420. (x) This is not the only instance in our law where the word "parol" is used in a different sense from "verbal" or "oral." Thus written contracts not under seal are said to be parol "contracts," &c. Rann v. Hughes, 7 T. R. 350, note. (a) See the distinction taken in Bellamy's case, 6 Co. 38, between deeds required "ex institutione legis" and "ex provisione hominis." See also, per Cutler, 21 H. VII. 5, B. pl. 2; Burton v. Cornish, 12 M. & W.426; Knight v. Barber, 16 Id. 66; and Dig. lib. 22, tit. 4, ll. 4 and 5. (b) Infra, Part 3, bk. 2, ch. 2. is merely used as evidence to prove some act, independent proof aliundè is receivable. Thus, although a receipt has been given for the payment of money, proof of the fact of payment may be made by any person who witnessed it (c). Suppose a man had declared by deed, or even put on record-if such a thing can be supposedhis intention to rob or murder another, this would not exclude parol proof that he had made similar declarations of intention by word of mouth. So, although where ' the contents of a marriage register are in issue, verbal evidence of those contents is not receivable, yet the fact of the marriage may be proved by the independent evidence of a person who was present at it. This distinction is well illustrated by the case of Horn v. Noel (d), in which it was proposed to support the defence of coverture of the defendant by two witnesses, who deposed that they were present in a Jewish synagogue when the defendant was married to H. N. The plaintiff's counsel contended that this evidence was insufficient; that it was necessary for the defendant to shew that a marriage had been celebrated according to the rites of the Jews; but with them, what took place in the synagogue was merely a ratification of a previously written contract; and as that contract was essential to the validity of the marriage, it ought to be produced and proved (e). The contract, in the Hebrew tongue, was accordingly put in, and translated by means of an interpreter, and the plaintiff was nonsuited. It must also be added that the rule excluding parol evidence as inferior to written does not exclude circumstantial (f), nor, according to the better opinion, self-disserving evidence (g). § 218. But when documentary evidence is not receiv- Written narra (c) Rambert v. Cohen, 4 Esp. 213. (d) 1 Camp. 61. (e) See on this subject Rogers's Eccl. Law, 659, 2nd Ed. (f) Part 3, bk. 2, ch. 1. tives or memo. randa, though not admissible in evidence, may be used to refresh memory. Extrinsic evidence when receivable to able for want of being verified on oath, or its equivalent, or traceable to the party against whom it is offered, the benefit of its permanence is not always lost to justice. Thus a witness, who has drawn up a written narrative, or made a written memorandum, of a matter or transaction, may use it while under examination as a script to refresh his memory (h). § 219. It is an obvious branch of the principle in question that "parol," or to speak more correctly, "exexplain written trinsic" evidence, is not in general receivable to contradict, vary, or explain written instruments. instruments. Difference between latent" ambiguities. "It would be inconvenient," say our old books, "that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by averment of the parties, to be proved by the uncertain testimony of slippery memory (i)." But there are many cases where the rejection of such proof would be the height of injustice, and even be absurd. With respect to the varying or and " patent" explaining instruments, the rule is "Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur." The following commentary by Lord Bacon on this maxim is the recognized basis of the law governing the subject (k). "There be two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. Patens is that which appears to be ambiguous upon the deed or instrument; latens is that which seemeth certain and without ambiguity, for anything that appeareth upon the deed or instrument; but there is some collateral matter out of the deed that breedeth the ambiguity. Ambiguitas (h) Sandwell v. Sandwell, Comb. 445; Holt, 295; Doe d. Church v. Perkins, 3 T. R. 749; Burton v. Plummer, 2 A. & E. 341; Beech v. Jones, 5 C. B. 696; Smith v. Morgan, 2 Moo. & R. 257; 2 Phill. Ev. 480, et seq., 10th Ed. (i) 5 Co. 26 a. (k) Bac. Maxims of the Law, Reg. 23. |