In criminal eases. 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 hè may have no immediate interest at stake." In 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. deed, 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 him. On an indictment for lar ceny, 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. North, 11 East, 372. dence dence 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 goods 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 (1). On the other hand, the in ference 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 sicze 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 (1) See other cases of presumptive evidence, in the next section; and see Index, tit. Presumption. (2) Fost. 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. Non assumpsit. 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 admitted to any other point. Thus in an action of assumpsit, the 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. (2) Bull. N. P. ib. 2 Campb. 558. (3) Paramore v. Johnson, 1 Loid 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 be acquitted, to find, in case it shall so 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 or otherwise endeavour to conceal the birth thereof, and thereupon it shall be lawful for the Court to adjudge, that such prisoner shall be committed to the common gaol or house of correction for any time not exceeding two years." 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 abateinent. 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. (10) Non est factum. The rule, which has been just laid down with respect to joint contracts, either written or by parol, applies also to the case of joint bonds. If an action is brought against one obligor alone, who pleads non est factum, the plaintiff may maintain his action, notwithstanding that on the production of the bond there appears to be a joint obligor (1). The plea of non est factum puts in issue, whether it be the defendants' deed at the time of pleading. Evidence is therefore admissible under this plea, to shew that, at the time of pleading, the deed was by the rules of common law absolutely void (2); as, that the defendant was at the time of the execution a lunatic (3), or a married woman (4), or that he was made to sign it when so drunk as not to know what he did (5), or that the deed was delivered as an escrow on a condition not performed (6). For the same reason the defendant may shew, that, after the delivery of the deed and before the time of bringing the action, the deed has been altered in a material point by some addition, or rasure, or interlineation, &c.; for then, at the time of pleading, it was not the defendant's deed, but absolutely void (7). And the rule is the same, whether such a material alteration was made by the obligee, or by a stranger without his privity; the deed is void in either case. It was resolved in Pigot's case (8), that if the obligee alters the deed, though in words not material, the deed is void; but if a stranger, without his privity, alters the deed in any point not material, it will not avoid the deed. The defendant, under the general plea of non est factum, cannot prove payment, or give in evidence a release, or accord and satisfaction; and if the deed is merely voidable, (as, by reason of his infancy, or for duress of his person,) he may plead such matter, and so avoid the deed; but cannot give it in evidence under the (1) Whelpdale's case, Rep. 119. (5) Bull. N. P. 172. (6) 5 Rep. 119. b. Bull. N. P. 172. Stoytes v. Pearson, 4 Esp. N.P.C.255. (7) 5 Rep. 119. b. Pigot's case, 11 Rep. 27. (8) 11 Rep. 27. plea |