A Preliminary Treatise on Evidence at the Common Law

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1898 edition. Excerpt: ... CHAPTER X. THE "PAROL EVIDENCE" RULE1 Few things are darker than this, or fuller of subtle difficulties. "The admissibility," says a well-known writer, "of extrinsic parol testimony to affect written instruments is, perhaps, the most difficult branch of the law of evidence."2 The chief reason is that most of the questions brought under this head are out of place; there is a grouping together of a mass of incongruous matter, and then it is looked at in a wrong focus. Because the rules intimated by this title deal with writings, i. e., with things which in their nature are evidence of what they record, it is assumed that they belong to the law of evidence. But in truth most of the matters with which they are concerned have no special place in the law of evidence; and the way out of these perplexities will be found in clearly recognizing what the law of evidence is, and in eliminating the various parts of the present title which do not belong under that head and allotting them to their proper place. I. It is necessary to keep in mind a few discriminations, some of which have been repeatedly emphasized already. Let us remind ourselves of them again. 1. Between rules of substantive law and rules of evidence. When the law requires a thing to be recorded, or in writing, or under seal, or attested, these, often, are not requirements of the law of evidence. They are 1 For common ways of stating what this phrase is thought to coyer, see infra, 396, 397. S Taylor Ev. (9th ed.) s. 1128. matters of form, required, in some cases, as necessary to the constitution of a thing, as in the case of wills and deeds; in some, that the matter may be available as the ground of an action, as in the case of things included in ss. 4 and 17 of the Statute of...