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The plea of not guilty puts in issue all the material parts of the indictment; and under this plea the prisoner may give in evidence any matter of justification, excuse, or extenuation. And if some other acts of the prisoner, besides those which arc the subject of the indictment, arc proved against him for the purpose of shewing his design in the affair in question, he will be allowed to explain those parts of his conduct, and with this view may give in evidence other contemporaneous particulars of his conduct, which shew that he had a different design from that imputed to him. This limitation (namely, that the particulars offered in evidence by the prisoner ought to be contemporaneous with those proved on the other side, or at least confined within the same limits, to which the evidence on the part of the prosecution is subject,) appears to be not unreasonable; for otherwise the prisoner would be at liberty to take the whole range of his life, in the course of w hich his character and his designs may have undergone a complete change. This observation, however, is made with great deference; as the rule certainly appears to have been carried much further in one of the modern state trials, in the case of Home Tooke (1). In that case, several publications were given in evidence, on the part of the crown, containing republican opinions, which had been distributed by the prisoner during the period assigned in the indictment for the existence of the conspiracy,- and this evidence was much relied on, as shewing that the notion of a reform, which was expected to be set up by the prisoner in his defence, was a mere pretext to cover his treasonable designs: to repel this conclusion, the counsel for the prisoner offered in evidence a book, which had been written by the prisoner 12 years before, on the subject of parliamentary reform; the evidence was objected to, as having no relation with the particular transaction in question, and because the prisoner's opinion?!, whatever they were formerly, might have afterwards changed. But Lord Ch. J. Eyre said, that the
(1) I East. P. C. 61.
question was not whether this book had a reference to the conspiracy charged, but whether it had not reference to the proof given in support of the charge; and he thought it evidence to rebut the supposition, that the reform of parliament was a pretence made by the prisoner. The book was accordingly received in evidence.
As evidence is to be confined to the points in issue, the Evidence of 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 ejectment 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 is 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 admissible 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."
But in an action for criminal conversation with the plaintiff's wife, evidence may be given of the wife's general bad character for want of chastity, or of particular acts of adultery committed by her btforc she became acquainted with the defendant (4). This evidence is allowed in mitigation of damages. So it may be proved, in mitigation of damages, that the plaintiff himself has carried on a criminal
(1) Bull. N. P. [298.] (3) Attorney-Gener.il v. Bowman,
(i) Goodright d m. Farr v. Hicks, a Bos. fc Hull. 531, («;. Bull. N. P. 196. (4) Bull N. 1' 17.296. Roberts 1.
MuUstou, MS. case in Selu\ N. P. a5.
conversation with other women (1); or that the plaintiff''* wife made the first advances to the defendant (2). Also, in an action for a libel, imputing a crime to the plaintiff^ in consequence of which he complained of having lost the society of his acquaintance, the defendant on the general issue has been allowed to shew, in mitigation of damages, that, before and at the time of the publication of the supposed libel, the plaintiff was generally suspected of the crime imputed to him, and that on account of this suspicion his acquaintance had ceased to associate with him (3). Such evidence however is not admissible, where the defendant by his plea puts in issue the truth of the charge imputed (4}. And in an action for a malicious prosecution, the defendant after proving circumstances of suspicion against the plaintiff, may give evidence of his general bad character, in order to shew that he had probable cause for instituting the prosecution. (5)
In trials for felony the prisoner is always permitted to call witnesses to his general character; and when the evidence against him is doubtful, such testimony may be sufficient to warrant an acquittal. The same rule seems to apply with equal force to trials for misdemeanors, where the direct object of the prosecution is to punish the offence. So, 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 previously been criminally connected with the prisoner. In such a prosecution, however, it cannot be shewn that she had a criminal connection with other persons. (6)
As the jury are bound to try only the matter in issue between the parties, no evidence need be given to prove any points which are admitted on record, and none can be received to contradict the record (i). Thus in an action for cutting down trees, if the plaintiffreplies to the defendant's plea of soil .and freehold, that the trees were his trees and freehold, &c., he thereby admits the plea of the defendant, and cannot dispute that he had the freehold of the soil. So if a tenant justifies for common, and the issue on the right of common is found for the demandant, the jury cannot find, that the tenant did not put in his cattle: for that is admitted (a). So in an action of debt on award, where the defendant pleads no such award, the jury cannot find matters which make the award void, if they are not contained in the award itself. (3)
'The same rule will apply to judgments by default, to the payment of money into court, and to particulars of demand under a Judge's order. The effect of these is here shortly considered.
First, as to judgments by default. — A judgment by Judgment default is an admission of the cause of action. Thus in an by itf,n' action on a bill of exchange against the defendant as acceptor, it admits that he accepted it, and that the bill is as stated in the declaration; and he cannot afterwards shew on the execution of a writ of inquiry, that he had not accepted it (4); the bill must, indeed, be produced, for the purpose of seeing whether there is any indorsement of money having been paid upon it (5). So in an action for goods sold and delivered, or for money had and received, the defendant by suffering judgment to go by default admits that something is due; and he cannot afterwards dispute the contract of sale, or shew fraud on the part of the plain
(1) Bull. N. P.O98.] (4) Green v. Hearne, 3T. R. 301.
(1) Com. Dig. tit. Pleadc.r, (S. 17.) Bevis v. Lindfcll, 2 Str. 1149.
Barnes Rep. . EUis v. Wall, ib.
tiff in making the contract (1); but the plaintiff will only have to prove the amount due to him. So on the execution of a writ of inquiry after judgment on demurrer, the defendant cannot controvert any thing but the amount of the sum in demand; as, in an action for goods sold and delivered, to which the defendant pleaded coverture, and the plaintiff replied, that the defendant's lmsband had resided abroad^md that the defendant during all the time, &c. had carried on trade as a feme sole, the Court were of opinion, that, after judgment on demurrer to this replication, evidence of the wife having acted as agent to the husband ought not to have been admitted on the execution of the writ of inquiry; that the only question to be decided by the jury was on the amount of the debt, and that the question whether the debt hail been contracted by the defendant as agent for her husband, or in her separate capacity, ought to have been considered as determined by the record. (2)
Payment of Secondly, as to payment of money into court. — Such court? mo payment is in general an acknowledgment of the right of action to the amount of the particular sum (3). And as it is an acknowledgment on record, the party cannot recover it back, although he has paid it wrongfully or by mistake (4). It is an admission by the defendant that the plaintiff has a legal demand to a certain extent; but it is not an acknowledgment beyond that amount, and will not preclude the defendant from taking any objection to the action with respect to any other part of the demand, to which the payment of the money does not apply, although, if no money had been brought into court, the objection might have been a bar to the whole demand (5). Where there is a count on a special contract together with money counts, payment of money generally upon the whole declaration is
(1) East Iml. Comp v. Glover, I Str. (3) 5 Burr. 2640. I T. R. 465. 612. 1 East, 134.
'2) De Gaillon v. L'Aigle, 1 Bos. (4) Vjughan v.Barnes, 2 Bos. Pull. Pull.368. 391. 1T.R.645.
(i) Cox v. Parrv, 1 T. R. 464.