Proof of other customs.

Or custom of the country.

Acts of ownership in other portions of property.

On the authority of this case of Champian v. Atkinson, the Duke of Somerset's case (1) (d) was principally decided. On a trial at bar in that case, where the issue was, whether a general fine was due from the tenants of certain manors in Cumberland to the Duke as next admitting lord, the court, after much argument, received evidence, that the same fines had been paid in similar cases to the lords of other manors. Lord Ch. J. Raymond and Reynolds, J. laid down the general rule as above stated, and were strongly against admitting the evidence; but afterwards agreed to receive it, on the authority of the precedent in Keble, and of cases said to have been so ruled on the northern circuit. Fortescue, J., the only other judge present, thought the evidence admissible, and made a distinction between the custom and the tenure of a manor; and as the question, there to be tried, merely concerned the tenure of the plaintiff's manors, he was of opinion that it would be proper to inquire, what were the qualities that attended other estates holden by the same tenure.

In the case of Furneaux v. Hutchins, on a question relative to the custom of tithing, (2) Lord Mansfield, after laying down the general rule, that "proof of the custom in one parish is not evidence to affect another parish," adds this qualification, "unless the custom is laid as a general custom of the country." Thus, where half of a river belongs, by the constant custom of the country, to the lords of the manors on each side of the water, proof of the custom in one manor is evidence of the same customary right in another. (3) It is evidence of a custom pervading one common district of manors. (e)

The case of Sir Thomas Stanley v. White (4) may here be mentioned. This was an action of trespass for cutting down the plaintiff's trees; the defendant pleaded his soil and freehold in the close, upon which the trees were growing, &c.: the plain

(1) Duke of Somerset v. France, 1 Str. 659. See also Lowther v. Raw and others, Fortesc. 44, 55, S. P., on appeal to the House of Lords from the judgment of Lord Talbot, Ch.; Dean and Chapter of Ely v. Warren, 2 Atk. 189, S. P. See also Cowp. 807, 809; 5 T. R. 31; and 1 Maule & Selw. 662.

(2) Cowp. 808.

(3) 1 Maule & Selw. 662.

(4) 14 East, 332. Bryan v. Winwood, 1 Taunt. 208. Tyrwhitt v. Wynne, 2 Barn. & Ald. 554. See Hollis v. Goldfinch, 1 Barn. & Cress. 218, 219.

customs.

tiff replied that the trees were his trees and freehold. It appeared Proof of other on the trial, that the trees in question grew in a woody belt, of considerable extent, entire and undivided, which encircled the plaintiff's manor, and lay contiguous to a number of closes belonging to several owners, one of which closes was that of the defendant. Evidence was admitted of several acts of ownership, in different parts of the belt, by those under whom the plaintiff claimed which had been acquiesced in by the owners of the adjoining land. And the Court of King's Bench afterwards, on a motion for a new trial, adjudged the evidence to have been properly admitted, as evidence of the general right through the whole extent of such entire undivided inclosure, which might be presumed to have belonged formerly to one owner. This appears to be the true principle, on which the proposed evidence, in that case, was admissible. For, gene rally speaking, acts of ownership, submitted to by the holder. of one portion of land, cannot be proof that the person exercising them has any right to the adjoining land. (1) (ƒ)

tithing.

The general rule, then, is, that a custom of tithing, &c. in one Custon of parish is not evidence of a custom in another. So, in an action by a rector for tithes, where the point in issue is, whether there exists a modus of a certain sum of money for a particular farm in a township within the parish, the defendant will not, in general, be allowed to inquire, whether other farms in the same township are not subject to the same payment. Such an inquiry, however, may be very proper on the other side, in cross-examination, for the purpose of showing that such payments cannot be a modus, consistently with the evidence which has been previously adduced. This was lately adjudged to be admissible in the case of Blundell v. Howard. (2) The question there was not put by the defendant with a view of supporting the modus set up by him, but was put by the plaintiff, in order to show that this and similar payments by the occupiers of different tenements were merely portions of a sum in gross paid throughout the township by way of composition, and could not be a modus, since the ecclesiastical surveys, which had been produced on the part of the rector, were entirely silent as to any modus co-extensive with the township. (g)

(1) See 1 Barn. & Cress. 218, 222. (2) 1 Maule & Selw. 292.

(f) See note 337, p. 455. (g) See Note 438, p. 456.

Character of

party.

On trial for rape.

Assault with intent.

As evidence is to be confined to the points in issue, the character of either party cannot be inquired into, in a civil suit, unless it is put in issue by the nature of the proceeding itself. (1) Thus, in an action of ejectinent by an heir at law, to set aside a will for fraud and imposition committed by the defendant, witnesses cannot be examined to the defendant's good character. (2) So, on the trial of an information against the defendant for keeping false weights, where it was proposed to call witnesses on behalf of his character, Eyre, C. B. ruled, that such evidence was not admissible in a civil suit. (3) "The offence imputed is not," he said, " in the shape of a crime. To admit such evidence would be contrary to the true line of distinction, which is this, that in a direct prosecution for a crime it is admissible, but, where the prosecution is not directly for the crime but for the penalty, it is not. If evidence to character were adinissible in such a case as this, it would be necessary to try character in every charge of fraud upon the excise and custom-house laws." (h)

On the trial of an indictment for a rape, evidence is admissible on the part of the prisoner, that the woman bore a notoriously bad character for want of chastity and common decency, or that she had before been criminally connected with the prisoner; but it cannot be shown, that she had a criminal connection with other persons. (4) And, on an indictment for an assault with intent to commit a rape, general evidence of the woman's bad character, previous to the supposed offence, is clearly admissible; but evidence of particular facts, to impeach her chastity, cannot be received in this case more than in the last, not even for the purpose of contradicting her answers in cross-examination. (5) Her answers to questions, respecting particular facts, not involved in the issue, are conclusive. And if on cross-examination she admit her own misconduct in some earlier transactions, it would be proper, on reexamination, to inquire into her conduct subsequent to such transactions, for the purpose of restoring her credit. Other witnesses may also be called, to show that she has since retrieved her character. (6) (i)

(1) Bull. N. P. [298.]

(2) Goodright dem. Farr v. Hicks, Bull. N. P. 296.

(3) Attorney General v. Bowman, 2 Bos. & Pull. 532, (a).

(4) Hodgson's case, 1812, MS. Russ. & Ry. Cr. C. 211. S. C.

(5) R. v. Clarke, 2 Stark. N. P. C. 243, by Mr. Justice Holroyd. (6) Ibid. 242.

acter.

In trials for felony and high treason, and in trials also for misdemeanors, (where the direct object of the prosecution is to punish the offence,) the prisoner is always permitted to call witnesses to his general character, (j) and in every case of doubt, proof of good character will be entitled to great weight. (k) The inquiry as to Proof of good the prisoner's general character ought manifestly to bear some anal- character. ogy and reference to the nature of the charge against him. On a charge of stealing, it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of Upon what moral conduct, which, however they might operate on other occa- points. sions, would not be likely to operate on that which alone is the subject of inquiry; it would not afford the least presumption, that the prisoner might not have been tempted to commit the crime for which he is tried, and is therefore totally inapplicable to the point in question. The inquiry must also be as to the general General charcharacter: for it is general character alone which can afford any test of general conduct, or raise a presumption that the person, who had maintained a fair reputation down to a certain period, would not then begin to act a dishonest unworthy part. Proof of particular transactions, in which the defendant may have been concerned, is not admissible, as evidence of his general good character. (1) What, then, is evidence of general character? The best medium of proof is, by shewing how the person stands in general estimation; proof that he is reputed to be honest is evidence of his character for honesty, and the species of evidence most properly resorted to in such inquiries. It frequently occurs, indeed, that witnesses, Particular acts after speaking to the general opinion of the prisoner's character, state their personal experience and opinion of his honesty ; but when this statement is admitted, it is rather from favor to the prisoner, than strictly as evidence of general character. (1) (m) In cases where the intention forms a principal ingredient in the of fence, a wider scope is allowed. On a charge of murder, for instance, expressions of good will and acts of kindness on the part of the prisoner towards the deceased, are always considered important evidence, as shewing what was his general disposition

(1) See 31 Howell, 190, 310.

(j) See Note 341, p. 459. (k) See Note 342, p. 459. (l) See Note 343, p. 460. (m) See Note 344, p. 460. VOL. I.

23

Rule in crimi

nal cases.

Treason.

towards the deceased, from which the jury may be led to conclude, that his intention cou'd not have been what the charge imputes. (n)

The rule, that all manner of evidence ought to be rejected which is foreign to the points in issue, applies more strongly, if possible, to criminal prosecutions than to civil cases. This rule is founded in common justice; for no person can be expected to answer, unprepared and at once, for every action of his life. In treason, therefore, no evidence is to be admitted of any overt act that is not expressly laid in the indictment. This was the rule at common law: and it is again prescribed and enforced by the statute of W. 3, which contains an express provision to that effect, (1) in consequence of some encroachments that had been made in several state Proof of overt prosecutions. (2) The meaning of the rule is, not that the whole detail of facts should be set forth, but that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment; but still, if it conduce to the proof of any of the overt acts which are laid, it may be admitted as evidence of such overt acts. (3) With this view, the declarations of the prisoner, and seditious language used by him, are clearly admissible in evidence, as explaining his conduct, and shewing the nature and object of the conspiracy. (4) And acts of treason, tending to prove the overt acts charged, though committed in a foreign country, may be given in evidence. (5) (0)

acts.

Burglary.

On the trial of an indictment for burglary and larceny, (6) it appeared upon the evidence, that the prisoners might have entered the house before it was dark, and that they had not taken any part of the goods at the time when they were discovered in the house; upon which the counsel for the prosecution proposed

(1) W. 3, c. 3, s. S.

(2) Foster, Cr. L. 245, 246.

(3) Id. 9, 246. Vaughan's case, 5 St. Tr. 2, fol. ed. S. C. 13 Howell's St. Tr. 453. Deacon's case, 9 St. Tr. 8, fol. ed. S. C 15 Howell's St. Tr. 747.

(4) R. v. Watson, 2 Starkie, N. P. C. 134. So on an indictment for sending a threatening letter, a subsequent

letter from the prisoner, explanatory of that stated on the record, is ad missible. Robinson's case, 2 East, P. C. 1112.

(5) Fost. Cr. L. 10.

Deacon's case, 9 St. Tr S, fol. ed. S. C. 15 How ell's St. Tr. 747.

(6) R. v. Vandercomb and Abbott, 2 Leach, Cr. C. 816.