« PreviousContinue »
Non est The rule, which has been just laid down with respect to
factum. j0int 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 (i). 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, 5 Rep. 119. (5) Bull. N P. 171.
Cabell v. V.nyhan, I Saund. 191. (6) 5 Rep. 119. t. Bull.N.P.172.
(1) Whclpdale's case, .5 Rip. 119. Stoylei v. I'earbon, 4 F.sp. N.P.C.25
(3) Yates v. Been, 2 Sir. 1IC4. .(7) 5 Rep. 119. I. Pigot's case,
(4) Anon. C. 12 Mod. 609. Lam- II Rep. 27.
bert v. Atkins, aCamyb. 272. Bull. (8) uRep. 27.
plea pica of lion est factum, for, at the time of pleading, it had not been avoided, and was his deed(i). Even incases, where it is enacted by the legislature that the deed shall be void, (as, by stat. 9 Ann. C. 14. s. 1. for gaming, by stat. 5, 6 Ed. 6. c. 16. s. 2, 3. for sale of office, by 12 Ann. st. 2. c. 12. s. 2. for simony, and by stat. 13 Eliz. c. 8. for usury,) the defendant cannot take advantage of this under the plea of non est factum, but ought to plead the special matter. (2)
In an action of trespass for assault and battery, the de- Not guilty, fendant cannot give in evidence, under the general issue, ln tresPlss. that he was first assaulted by the plaintiff, except in mitigation of damages: but with that view the evidence is admissible. In trespass quare clausumjregit, evidence of title and of right of possession is admissible under the general issue; as, a demise from the owner of the land (3); or, that the plaintiff's interest in the premises, whichJie had occupied under the defendant, had expired (4): or the defendant may prove, that at the time of the supposed trespass the freehold and right of possession were in a third person, and that he entered by his command (5). Such evidence falsifies the declaration, by shewing that the defendant did not break the close, as is stilted in the declaration (6). But the defendant under this plea cannot prove a licence from the plaintiff(7), or defect of the plaintiff's fences (8), or right of common (9), or right of way (10), or other easement (1i). Formerly, he could not have proved that he entered to take a distress for a rent-charge (12); but this evidence is now admissible under the general issue, by stat. 11 G. 2. c. 19. s. 21. In trespass for taking goods, the defendant may prove under the general issue, that the
(0 5Rep."9. (7) Gilb. F.v. zt6. iT. R. 16(1,8.
(2) 5 Rep 119. (8) Co. Lit. 283. «. Gilb. Ev. 110.
(3) Dodd v. Kyffin, 7 T. R. 354. (9) Id.
(4, Argent v. Dumnt, 8 T.R. 403. (10) Gilb. Ev. 217.120.
tS) Diersley'i case, I Leon. 301. (11) Hiwk'ms v. Wallis, 1 WHs. 173.
8T. R. 403. (12) Co. Lit. 283. a. (6) Gilb. Kt. M1.
goods were put into his custody as pound-keeper, and that as such he detained them. (1)
When a right is claimed by custom in a particular manor or parish, proof of a similar custom in an adjoining parish or manor is not admissible evidence. In the Duke of Somerset's case (2N, Lord Ch. J. Raymond said, he had always looked upon it as a settled principle in the law, that the customs of one manor should not be given in evidence to explain the custom of another manor; for, if tins kind of evidence were to be allowed, the consequence seems to be, that it would let in the custom of one manor into another, and in time bring the customs of all manors to be the same. And, in addition to this argument of inconvenience, the objection taken to the evidence in that case, namely, that it was inapplicable to the point in dispute, appears to be very strong; customs being different in different manors, and in their nature distinct. Unless therefore some connection or relation is proved to have existed between them, as, by shewing that they were all formerly holden under thesame lord, or that the one manor was anciently parcel of the other manor (3), such evidence is not admissible.
But several cases appear to have determined this point, that, where all the manors within a certain district are held by the same peculiar tenure, and a question arises in any one of them upon an incident to the tenure, evidence may be given of the usage, which prevails in any of the other manors within the district. The first reported case of this kind is Chatnpian v. Atkinson (4), where tl'e question was, whether a general fine was due to an infant preceding lord during his minority: and the defendants were allowed to give in evidence upon the trial of this issue, that other ad
(0 Padkin v. Chancellor and others, 2 Doug, ja S. P.; hy Wood, B. in
Co»|,. 476. Doe deni. Foster v. Sissun, 11 Iwst, 6j.
(2) D. of Somerset v. France, I Str. S, R 3 GwilL 965. 661. Ruding v. Newel, 2 Str. 957. (5) Moulin v. Dalilon, Cro. Car.
Furneau* v. Hutchins, Cowp. 807. By 48.).
Buller, J. in Noble v. Keuncway, (4) 3 Keb. 90., on Tr. at har.
joining manors had the same custom, not to pay to the lord before he attained his full age: and similar evidence was there said to have been received, on a question of copyhold tenure, between certain manors in Middlesex. On the authority of this case of Champian v. Atkinson, the Duko of Somerset's case (1) 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 admitted 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. So 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.
f 1) D. i,f Somerset v. France, I Str. tcr cf Ely v. Wirren, 2 Aik. 189. S P.
658. See aiio l.inrther v. Raw and See ulio Cowp. 807,8.; and I M»..!e
oihers, FortekC. 4.4,55, S. I\, on appeil & Sel. 662.
In the cases which have been cited, proof of a general right over one entire district was admitted to explain and affect the rights of different persons in different parts. Upon the same principle, the late case of Sir Thomas Stanley v. White (i) was determined. 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 plaintiff replied, that the trees were his trees and freehold. It appeared 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 the inclosure.
The general rule, then, is, that a custom of tithing, &c. in one 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 forms in the same township arc 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 shewing 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