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chases land adjoining to B., he cannot use the way with carriages to the adjoining land, though he comes first to B. and so to the adjoining land; for this way may be prejudicial to the other person's close (i). The continued use and enjoyment of a private way for carriages does not necessarily imply a right to use it as a drift-way, though the one has been often understood as including the other (2). However, it has been held that the use of a carriage-way is evidence of a right of way for all kinds of cattle, more especially, if some species of cattle have been usually driven along the way; and that it will be a question for the jury to determine, from the' nature and situation of the premises and other circumstances, whether it is more probable that the grant included both rights ofway,or that one of them was excludcd.(3)

The principle above stated must always be understood with this qualification, that the possession, from which the party would presume a grant of the easement, was with the knowledge of the person seised of an estate of inheritance. If a tenant for years or for life gives a licence to another to enjoy an easement on his lands for above 20 years without interruption, this will not affect the person in reversion or remainder; but, on the determination of the particular estate, hemay dispute the right to the easement, and the length of possession will not be evidence against him to presume a grant, unless it can be shewn that he acquiesced (4% So, where a person made windows in his house, and had them for above 20 years, without any interruption from the occupier of the opposite premises, who occupied them under a lease, the Court of King's Bench held, that the possession of such an casement would not affect the landlord on the determination of the lease, and that he would not be liable to an action for raising the height of his own premises, and thereby obstructing the

(1) Roll.Ah. 391. tit.Chimin, Art.3. bre, L in Ballard v. Dyson, 1 Taunt. Laughton v. Ward, t Lutw. III. 179.

(1) 1 Taunt. 184, 5. (4) I3r.idbury v. Grinsel, a Saund.

13) By MantKeld, C. ). and Cham- i. in note.

light through the new windows (1). "It is true, " said Mr. Justice Le Blanc in this case, "that presumptions are sometimes made against the owners of land during the possession and by the acquiescence of their tenants, as in the instances of rights of way and of common; but that happens, because the tenant suffers an immediate and palpable injury to his own possession, and therefore is presumed to be upon the alert to guard the rights of the landlord as well as his own, and to make common cause with him; but the same cannot be said of lights put out by the neighbours of the tenant, in which he may probably take no concern, as he may have no immediate interest at stake."

Presumptive or circumstantial evidence, if admissible in civil cases, must obviously be equally admissible in criminal prosecutions; for, whether the remedy be of a civil or criminal nature, the modes of reasoning and of drawing conclusions from facts must necessarily be the same. Indeed, it must very commonly happen in some of the worst species of crimes, that this is the only kind of evidence which can be resorted to; and it will often be the most satisfactory and convincing, that can be produced.

Where an act is in itself unlawful, it is presumed to be criminal, until the contrary appear. Thus, on a charge of murder, malice is presumed from the fact of killing: and if there are any circumstances of accident, necessity, or infirmity, of which the prisoner would avail himself in excuse or extenuation, they ought to be proved by the prisoner in his defence, unless they arise out of the evidence produced against hiro» On an indictment for larceny, proof that the stolen goods were found upon the prisoner is presumptive evidence against him of his having stolen them, so as to call upon him for his defence; and may be sufficient to convict him, if no facts appear in evi

(1) Daniel v.Norih, 1 1 Eaa,372.

dence deuce to repel that presumption. This kind of evidence is frequently strengthened materially by other circumstances, as by proof that about the time of the offence the prisoner was near the spot from which the good9 were taken, or that he gave some false account respecting the goods on being charged with the crime, or endeavoured to conceal them, or perhaps tried to prevent an inspection, or by some other proof of suspicious circumstances in his behaviour (i). On the other hand, the in.» fcrencc arising from the mere fact of possession will often be much weakened, if any considerable time has elapsed between the loss of the property and the finding it again, or if the property was from its nature likely to pass in the interval through many hands; especially, where the prisoner betrayed no appearance of guilt at the time of his apprehension.

A presumption of fact is in some cases made a presumption of law. Thus in the law of treason, an intention to kill the king may be reasonably inferred from a conspiracy to sieze his person and imprison him. "Experience has shewn," says Mr. Justice Foster (2), "that the distance is very small between the prisons and the graves of princes." This is a presumption of fact. But it is fully settled by the best authorities, that such a conspiracy is in. law an overt act of compassing the king's death, and in itself a substantive act of high treason within the statute of Edward the third. The same observation applies to other acts, which have a less immediate and direct tendency to endanger the king's life, as, entering into measures in concert with foreigners in order to effect an invasion of the kingdom; this also is an overt act of compassing the king's death (2). "It is a presumption of fact so obvious and so undeniable, that the law has adopted it, and made it a pre

(t) See other cases of presumptive evidence, in the next section; and see Indti, tit. Presumption.

(2) Fosr. 196.

sumption sumption of law." So, on an indictment for the murder of a bastard child, the concealment of the death by the mother is a strong circumstance of suspicion against her, if the child is proved to have been born alive. But, unless that is proved, the mere fact of concealment is in its nature equivocal. However, by the statute of 21 J. 1. c. 27. the burthen of proof was cast upon the mother; and unless she proved the negative, namely, that the child was not born alive, that statute did in effect make the concealment conclusive evidence of the murder. This act has been since repealed by the statute 43 G. 3. c. 58. s. 3.; by which the endeavour to conceal the birth is subject to a lighter punishment. * stated (as, that it was made with the plaintiff and other persons not named in the action (1), or with one of the plaintiffs alone) (2); or may disaffirm the contract by shewing, that the plaintiff, who sues as a feme sole, was married at the time of the contract; or, that the defendant, who is sued as a feme sole, was then married; or, that the plaintiff was a bankrupt at the time (3); or may avoid the contract by shewing that it was usurious (4), or founded on a gaming transaction (5 \ or that the defendant was an infant at the time of making the promise (6). But the defendant cannot under the plea of non assumpsit shew any matter, that would not go to the gist of the action, but merely to discharge it, as the statute of limitations (7). And though it should appear on the face of the declaration, that the cause of action did not arise within six years before the commencement of the action, yet the defendant can only take advantage of this, by pleading the statute. Nor will the defendant be allowed to prove under the general issue, that the contract was not with himself alone, as stated in the declaration, but jointly with other persons still living (8); for proof that another contracted is not evidence, that the defendant himself did not contract. Such an objection can only avail, when the fact is pleaded in abatement. And although it should appear on the evidence produced on the part of the plaintiff, that other persons are liable as joint contractors with the defendant, this is no variance, and the plaintiff will be entitled to recover (9}. But the plaintiff, in an action for money had and received by the defendants, cannot give evidence of money received by the defendants and another partner since deceased,. for, in such a case there cannot be a plea in abatement, as if the other partner were still alive. (1 o)

Sect. III.

Evidence is to be confined to the Points in Issue.

As the sole object and end of evidence is to ascertain the truth of the several disputed facts or points in issue on the one side or on the other, no evidence ought to be adKon a«. mitted to any other point. Thus in an action of assumpsit, sumpsit. tlie defendant under the general issue of non assumpsit may give in evidence any thing which shews, that the plaintiff has not a good cause of action, or that nothing is due (1), as, performance, or payment; or may shew a release (2), or accord and satisfaction (3), as a legal excuse for the nonperformance; or that the contract was different from that

(1) Bull. N. P. 152. (3) Paramore v. Johnson, i Loid

(2) Bull. N. 1Mb. 2Campb.55g. Ray. 566. 12 Mod. 376. S. C.

* The 4th section enacts, " that it may be lawful for the jury, by whose verdict any prisoner charged with such murder shall he acquitted, to find, in case it shall to appear in evidence, that the prisoner was delivered of issue of her body, which if born alive would have been bastard, and that she did by secret burying ot otherwise endeavour to conceal the birth thereof, and thereupon it shall be Lwful for the Court to adjudge, that such piisoner shall he committed to the common gaol or house of correction for any time not exceeding two years."

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