port and maintenance, according to his condition in life, was not liable to seizure for his debts. But any accumulation above the sum needed for the beneficiary's support is liable for his debts. Leigh v. Harrison, 11 So. Rep. 604 (Miss.).

This is an extraordinary decision. Even admitting the soundness of the doctrine of so-called spendthrift trusts, the decision in this case goes further in three respects. 1. The direction in the will to pay over the whole income was absolute, and not discretionary, as in Nichols v. Eaton, 91 U. S. 716, the case cited as the chief authority for the decision; nor was it a direction to provide for the maintenance of the son, as in Re Bullock, 54 L T. N. S. 736. The will contained no direction that the income should not be liable for debts, as in Fisher v. Taylor, 2 Rawle, 33. 3. The decision was reached, notwithstanding a provision in the code that estates of any kind held for another "shall be subject to like debts and charges of the person to whose use they are held, as they would have been if the person had owned a like interest therein "as he may own in the uses or trusts thereof."

REVIEWS.

THE HISTORY OF THE DOCTRINE OF CONSIDERATION IN ENGLISH LAW (Yorke Prize Essay for 1891). By Edward Jenks, M. A. London: C. J. Clay & Sons. 1892.

This little book is very suggestive, and well worth the attention of any one who cares for the history of the law. The first chapter (by means of twelve canons) gives a statement of the condition of the law at the present day. A desire to be methodical leads to the mistake here of introducing as canons what should be treated as exceptions rather than independent and co-ordinate principles. It is rather surprising to read at the outset a defence of the theory that consideration may be regarded as a benefit conferred on the promisor, and that consideration to-day is a matter of procedure rather than of substantive law. Indeed, the latter statement is subsequently contradicted.

The next two chapters treat of the law during the time of the Abridgments and earlier; while the last chapter is a chronological recapitulation down to the present day.

In brief, Mr. Jenks states that the action of assumpsit developed from actions of tort through the action on the case; and that the breach was the prominent feature, not the undertaking, which was treated merely as an incident. The necessity of consideration was carried over from the action of debt, and grew from a mere point in procedure to an essential element of the contract. "On the whole," he says, "the great interest of the subject lies in the fact that it affords perhaps the best instance in the domain of legal biology of an unconscious adoption of a rudimentary and apparently casual organ to important and complex purposes."

G. R. P.

UNITED STATES CIRCUIT COURT OF APPEALS, Vol. I. St. Paul: West Publishing Co., 1892.

This series of reports covers the same ground as the official series published by Banks & Brothers. The reports and headnotes are made by the "Editorial Staff of the National Reporter System." How they compare in accuracy and completeness with the authorized reports only a detailed examination would show. The volume is rather cheaply got up, with narrow margins and small type.

N. H.

HARVARD

LAW REVIEW.

VOL. VI.

FEBRUARY 15, 1893.

No. 7.

FEW

THE "PAROL EVIDENCE" RULE.

I.

EW things in our law are darker than this, or fuller of subtle difficulties. It appears to me that the chief reason for it is that most of the questions brought under this rule are out of place; it is true, in a very great degree, that a mass of incongruous matter is here grouped together, and then looked at in a wrong focus. Because the rule deals with evidences, with writings, things the nature of which it is to be evidence of what they record, it is assumed that it belongs to the law of evidence. But in truth most of the matters with which it is concerned have nothing to do with the law of evidence. It heightens the confusion, however, to find that some of them do belong there.

How, then, shall one find his way out of these perplexities? By coming to some clear conception of what the law of evidence is; by eliminating those parts of the subject which do not belong under that head, and allotting them to their proper place; and by tracing the development and true proportions of what remains. Let me try, although very imperfectly, to help a little towards accomplishing this result.1

I. Be

I. It is necessary to keep in mind a few discriminations. tween rules of substantive law and rules of evidence. When the

1 For an attempt to indicate the nature of the law of evidence, the reader is referred to 3 Harvard Law Review, 142-7, and Thayer's Cases on Evidence, 1-4.

law requires a thing to be recorded, or to be in writing or under seal, or attested by witnesses, these are provisions of the substantive law; they are not requirements of the law of evidence. These are matters of form required in some cases as necessary to the constitution of a thing, in some required in order that it may be available as the ground of an action, and in some that it may be provable. In either case they belong to the substantive law of the particular subject. When, therefore, testimony or facts offered in evidence are rejected as not conforming to any one of these or the like requirements, it is the substantive law of the case that excludes them.1

2. We must, therefore, discriminate between different senses in which the word "evidence" is used. In the sense which gives name to the great and quite peculiar department of law which is known among English-speaking people as their "law of evidence," this word means testimony, or some matter of fact regarded as a thing to be offered to a legal tribunal as a basis of inference in ascertaining some other matter of fact. It does not include all that relates to the general topic of proof or legal reasoning, or all that is popularly meant by the word "evidence," - all evidential matter, but only such as it is necessary to offer for use in court when a tribunal has to ascertain a matter of fact unknown or disputed. The rules of evidence regulate this particular judicial function. They do not determine questions of mere logic or general experience, or furnish rules for conducting processes of reasoning. To talk of evidence, then, and to settle questions about it, in the mere sense of a logically probative quality, is not to touch upon the region belonging to the law of evidence; indeed, to talk of it at all, unless with reference to its use for the purposes of litigation, is not to talk of what belongs to this specific department of our law. When we speak of certain writings as "evidences of debt," or of ownership, or of writings generally as "written evidence," and what is not in writing as "extrinsic evidence" or 'parol evidence," we are, for the most part, not using the word "evidence" in any sense apposite to the law of evidence. Is it this head of the law that makes a bond or negotiable paper or other writing to be an evidence of debt, or a bill of lading evidence of ownership? Is it the law of evidence which requires a

1 I found my judgment on one of the most useful rules in the law, viz., that when parties have put their contract into writing, that writing determines what the bargain is. Martin, B., in Langton v. Higgins, 4 H. & N. 402.

will, or a deed, or a contract about land, to be in writing? And is it the law of evidence which is appealed to in determining all the various implications and corollaries of these requirements?— as, e. g., in deciding when the parol or extrinsic matter submitted is or is not consistent with the rule that you must have a specialty, or that what you rely upon shall be intrinsic in the writing?

3. Furthermore, it is necessary to remember in a thousand cases, when it is said that "evidence is admissible," or the reverse, that this "admissibility" has no necessary relation to the law of evidence. For in such cases the admission or rejection of what is offered rests, far oftener than not, on different grounds. It may turn on a doubt as to the mere logical quality of what is offered, or as to the true limits of the governing propositions of substantive law, pleading, or procedure, which in every case must fix the character of what is put forward as being relevant or the reverse. Neither of these situations presents a question in the law of evidence. If the inquiry be merely whether a matter admitted to be logically probative is excluded by any general rule from being used in court as a basis of inference, then you have a question in the law of evidence. But our books are full of statements and decisions that certain evidence is or is not admissible, which, if justly analyzed, are merely enunciations of a conclusion of logic or general experience, or of the substantive law in its various branches, or of the law of pleading or procedure.

Where a declaration as to the admissibility of evidence is clearly not an assertion as to a point in substantive law, pleading, or procedure, it is very often merely a single specimen, out of myriads that might be offered, of probative matter not excluded by the law of evidence. Such propositions are often put as if they declared a rule or doctrine in the law of evidence. When Wigram, in his well-known treatise on the "Admission of Extrinsic Evidence in Aid of the Interpretation of Wills," says, in his fourth proposition, that in order to aid in deciphering a will, etc., "the evidence of persons skilled in deciphering writing is admissible to declare what the characters are," and in the fifth proposition that "for the purpose of determining the object of a testator's bounty the court may inquire into every material fact," etc., he is not laying down any rule in the law of evidence, he is merely illustrating the subject by showing that the law of evidence has no precept about it. And generally, as regards this valuable little book, which is widely supposed to contain a considerable number of rules of evi

dence, the real truth is that while it lays down some rules of construction, it points out that there is but one single rule of evidence involved in the whole discussion; namely, that which is stated in its proposition vi., with the exceptions in proposition vii.1 Little reflection is needed to see that such things, mere instances of what is provable, are but so many illustrations and applications of the fundamental conceptions in any rational system of proof; namely, that what is logically probative and at the same time practically useful may be resorted to, unless forbidden by some rule or principle of the law. These instances may be multiplied and heaped up in countless numbers. They are, in fact. And yet he who does this is merely illustrating, often with a benumbing superfluity, the practical working of the principles of reasoning or the law of evidence; he is not stating these principles or rules.

4. Again, it is important to notice that rules which declare the effect of probative matter do not belong to the law of evidence. For example, when it is declared that certain facts create an estoppel, or that, as evidence, they are conclusive, or that they make a prima facie case, or create a presumption, such propositions amount to saying that, as regards this or that specific question, such and such facts are legally equivalent to certain others, either absolutely or prima facie. This may be so either for the purposes of the substantive law or of the law of procedure. Of course if such is their legal effect, then the proof of them is, for the given purpose, tantamount to the proof of the facts that they stand for.2 One may get an exact notion of the use of rules of presumption in their relation to evidence by observing Lord Blackburn's handling of the case of Anderson v. Morice. Compare Lord Coleridge's opinion in Ogg v. Shuter, where the case is discussed merely upon a balancing of the evidence.

1 "Where the words of a will, aided by evidence of the material facts of the case, are insufficient to determine the testator's meaning, no evidence will be admissible to prove what the testator intended. . . . Courts of law, in certain special cases, admit extrinsic evidence of intention to make certain the person or thing intended, where the description in the will is insufficient for the purpose. These cases may be thus defined: where the object of a testator's bounty, or the subject of disposition (i.e., the person or thing intended), is described in terms which are applicable indifferently to more than one person or thing, evidence is admissible to prove which of the persons or things so described was intended by the testator." As to Wigram's meaning when he speaks of proving intention, see sections 9 and 10 of his book.

2 See 3 Harvard Law Review, 141.

3 L. R. 10 C. P. 614.

4 L. R. 10 C. P. 159.