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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.

character.

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 before 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.]

(2) Goodright dem. Farr v. Hicks, Bull. N. P. 296.

(3) Attorney-General v. Bowman, 2 Bos. & Pull. 532, (a).

(4) Bull N. P 27.296. Roberts v. Multston, MS. case in Selw. N. P. 25.

con

conversation with other women (1); or that the plaintiff's 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)

(1) Bull. N. P. 27. Duberley v. Gunning, 4 T. R. 658. Bromley v. Wallace, 4 Esp. N. P. C. 237. Lord Kenyon, in two cases, (Wyndham v. Ld. Wycomb, 4 Esp. N. P. C. 16., and another case there cited,) held such proof to be a bar to the plaintiff's action. But now this is not so considered.

(2) Elsam v. Fawcett, 2 Esp. N. P. C. 562. Gardiner v. Jadis, MS. case in Selw. N. P. 25.

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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 (1). Thus in an action for cutting down trees, if the plaintiff replies 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 (2). 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.

by defauk.

First, as to judgments by default. A judgment by Judgment default is an admission of the cause of action. Thus in an 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. [298.]

(2) Com. Dig. tit. Pleader, (S. 17.)
(3) 2 Roll. Ab. 692. 1. 25.

7

(4) Green v. Hearne, 3 T. R. 301.
Bevis v. Lindfell, 2 Str. 1149.

(5) 3T. R. 302. Billers v. Bowles,
Barnes Rep.
Ellia v. Wall, ib.

tiff

Payment of money into

court.

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 defen-
dant cannot controvert any thing but the amount of the
sum in demand; as, in an action for goods sold and deli-
vered, to which the defendant pleaded coverture, and the
plaintiff replied, that the defendant's husband had resided
abroad and 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, evi-
dence 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 had 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)

Secondly, as to payment of money into court. Such 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 Ind. Comp v. Glover, 1 Str. 612.

(2) De Gailion v. L'Aigle, I Bos. Pull. 368.

(3) 5 Burr. 2640. I T. R. 465.. 2 East, 134.

(4) Vaughan v. Barnes, 2 Bos. Pull. 392. 2T.R.645.

(5) Cox v. Parry, 1 T. R. 464.

an

an admission of the contract on every count, to which the contract is in its nature applicable (1); and after such an admission the defendant will be precluded from disputing the existence of the contract as stated. Thus in an action on a bill-of exchange, the defendant, by paying money into court generally, dispenses with the regular proof of the party's handwriting (2), and cannot object to the sufficiency of the stamp on which the bill is drawn (3). So, in an action of covenant, he admits the execution of the deed (4). So where the plaintiff brought an action for work and labour as a surgeon, the defendant by paying money into court admitted his right to recover in that character, and was not allowed to dispute it at the trial (5). And payment. of money into court has been held to be a conclusive admission of the plaintiff's right to sue in that court (6). So where the defendant paid money into court generally upou a declaration containing a count on a policy of insurance together with money counts, he was not afterwards permitted to shew, that the policy was originally different, and had been altered by the broker without his knowledge (7). But if the plaintiff previous to the trial has induced the defendant. to believe, that the only point to be tried would be a question of fraud, and has suffered him to prepare his evidence for that purpose, the Court will not allow the plaintiff to object to the receipt of that evidence at the trial, on the ground of the contract having been admitted by the payment of money into court. This was determined by the Court of Common Pleas in the case of Muller v. Hartshorne (8). Lord Alvanley C. J. on the trial of that case, allowed the defendant to prove fraud on the part of the plaintiff, in order to avoid the instrument (9). But the Court afterwards declined giving any opinion on that point,

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