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plea of non est factum, for, at the time of pleading, it had not been avoided, and was his deed (1). Even in cases, 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, in trespass. that he was first assaulted by the plaintiff, except in mitigation of damages: but with that view the evidence is admissible. In trespass quare clausum fregit, 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, which he 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 stated 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 (11). 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

(1) 5 Rep. 119.

(2) 5 Rep. 119.

(3) Dodd v. Kyffin, 7 T. R. 354. (4) Argent v. Durrant, 8 T. R. 403. (5) Diersley's case, Leon. 501. ST. R. 493.

(6) Gilb. Ev. 221.

K

(7) Gilb. Ev. 216. 2 T. R. 166,8.
(8) Co. Lit. 283. a. Gilb. Ev. 216.
(9) Id.

(10) Gilb. Ev. 217.220.

(11) Hawkins v. Wallis, 2 Wils. 173.
(12) Co. Lit. 283. a.

goods

Isstie on custom.

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 (2), 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 this 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 the, same 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 Champian v. Atkinson (4), where the 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

(1) Radkin v. Chancellor and others, Cowp. 476.

(2) D. of Somerset v. France, I Str. 661. Ruding v. Newel, 2 Str. 957. Furneaux v. Hutchins, Cowp. 807. By Buller, J. in Noble v. Keunoway,

2 Doug. 512. S. P.; by Wood, B. in Doe dem. Foster v. Sisson, 12 East, 63. S. P. 3 Gwill. 965.

(3) Moulin v. Dalison, Cro. Car.

484.

(4) 3 Keb. 90., on Tr. at bar.

joining

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 Duke 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.

(1) D. of Somerset v. France, 1 Str. 658. See also Lowther v. Raw and others, Fortesc. 44, 55, S. P., on appeal to the H. of Lords from the judgment of Lord Talbot, Ch.; Dean and Chap

ter of Ely v. Warren, 2 Atk. 189. S. P. See also Cowp. 807, 8.; and I Maule & Sel. 662.

(2) Cowp. 808.

(3) 1 Maule & 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 (1) 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 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 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

(1) 14 East, 332.

(2) 1 Maul. & Sel. 292.

modus

modus set up by him; but was put by the plaintiffs, in order to shew, 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.

&c.

In the case of Hunter v. Gibson and Johnson (1), which was Proof of an action by an indorsee against the defendants as acceptors of other acts, an instrument purporting to be a bill of exchange, a question arose on the third count, which stated the bill to be payable to bearer, under the following circumstances: It appeared in evidence, that the name of the person mentioned as payee was merely fictitious, but this fact was not known to the plaintiff; and for the purpose of shewing, that the defendants, at the time of their acceptance, either knew the name in the bill to be fictitious, or that the defendants had given authority to the drawer to draw the bill produced payable to a fictitious person, the plaintiff proposed to prove, that the defendants had given a general authority to the drawer to draw bills of exchange upon them, to be made payable to fictitious persons, and evidence to this effect was produced; the counsel for the defendants objected to this evidence, on the ground, that it had no relation to the particular bill in question, and that the facts of any particular transaction could not legally be inferred from circumstances which applied wholly to other transactions. Lord Kenyon, who tried the cause, admitted the evidence; upon which, the counsel for the defendants tendered a bill of exceptions. The Court of King's Bench gave judgment for the defendant in error. A writ of error was then brought in the House of Lords; and the question on the admissibility of the evidence was referred to the judges. On this question there was a division among

(1) 2 H. Bl 187.288. 290. 295. See 7 East, 40.

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