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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.
In the case of Hunter v. Gibson and Johnson (i), which was Proof of an action by an indorsee against thedefendants as acceptorsof "*'r ,as 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
the judges; but the majority of them being <rf opinion, that the evidence ought to have been received and left to the jury, the judgment below was affirmed. (i)
In trespass for taking goods, the plaintiff can only prove the taking of such goods, as are mentioned in the declaration. And in trespass for assault and battery, or qtiare clausumJregit, where the declaration charges, that the defendant on a certain day and on divers other days between that day and the commencement of the suit assaulted, &c. the plaintiff may prove any number of trespasses within those limits; or he may prove a trespass beyond the remotest day, waiving all the rest (2). And even after proving several assaults within the days mentioned in the declaration, perhaps he would be allowed to give evidence of assaults committed before that time, as proof of the defendant's malice. So in an action for criminal conversation, the plaintiff may prove several nets of adultery within the times specified; and in addition to this, he may shew indecent familiarities antecedent to the first-mentioned day, though he cannot shew a previous criminal connection.
In an action for slander, the plaintiff, after proving the words as laid in the declaration, may shew also, that the defendant spoke other actionable words either before or afterwards (3), or that he published other libels (4). This evidence is admissible for the purpose of proving the defendant's malice in publishing or speaking the words, which are the subject of the action. And the distinction, which was at one time made between words actionable and such as are not actionable, (that, in the latter case they might be given in evidence, but not in the former,) (5) has
(il See ir,fra,p. 137, as tothe^w/«f (4) R. v. 1'earcc, Pe.kc.N. P. C. 74.
k«owledge in issuing counterfeit money. Lee v. Husi.n, Ptrike. N. P. C. 166.
(2) bull. N. V. 86. riunkett v. Cubbctt, M.S. case in 2 Scl.
(3) Chaxlter v. Barrett, Peake, N. N. V. 938.
P. C. 22. Rustell v. Macqui.-ter, (5) Mead v. Daubigny, Pejkc. N.
1 Ompb. 49. Tate v. Humphrey, P. C .I25.
2 Campb. 73, (b).
been since over-ruled (1). In the last case on this subject, Finnerty v. Tipper (2), which was an action for a libel published in a periodical work, Mansfield C. J. refused to admit in evidence subsequent numbers of the same work, unless they expressly referred to the libel, for which the action was brought; for the subsequent publication, he said, might contain the most scandalous imputations, while the former libel may have been almost nothing; and the necessary consequence must be, that the jury would give damages for the second libel in an action for the first, although the defendant would not have the same opportunity of proving the truth of its contents, as if it were made the subject of a distinct action. The Chief Justice was of opinion that the same restriction was proper, and had been observed, in actions for words spoken, namely, that the subsequent words ought to refer to the same subject; and he drew a distinction between the case then before him and that of Carr v. Hood, which had been cited for the admissibility of the evidence; the defence there was, that the publication in question was fair criticism on the writings of the plaintiff, and therefore any other papers published by the defendant, to shew that he was actuated by malice in publishing the libel complained of, were certainly admissible evidence. On a review of the cases, which have been above cited, it will be found that in all of them except two, namely, Lee v. Huson and Rustell v. Macquister, the subsequent words or libels, offered in evidence, did expressly refer to those which were the subject of the action; and in those two cases, it docs not appear from the reports, whether they had, or had not, such a reference.
The same rule applies, if possible, more strongly to criminal prosecutions; in which all manner of evidence ought to be rejected, that is foreign to the point in issue. This
(1) Rustell v. Micqnister, t Campb. (i) 2 Campb. 72. 49. And ice cases cited above.
K 4 rule rule is founded in common justice; for no person can be expected to answer, unprepared and at once, for every action of his life. In treason, therefore, no evidence is to be admitted of any overt act, that is not expressly laid in the indictment. This was the rule at common law; and it is again prescribed and enforced by the statute (1) of Win, 3. which contains an express provision to that eftect, in consequence of some encroachments that had been made in several state prosecutions (2). The meaning of the rule is, not that the whole detail of facts should be set forth, but that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment; but still, if it amount to a direct proof of any of the overt acts which are laid, it may be brought as evidence of such overt acts. (3)
On the trial of an indictment for burglary and larceny (4), it appeared upon the evidence, that the prisoners might have entered the house before it was dark, and that they had not taken any part of the goods at the time when they were discovered in the house; upon which, the counsel for the prosecution proposed to give evidence of a larceny in the house committed by the prisoners on a preceding day; but the Court rejected the evidence, on the ground that it tended to prove a felony of a totally distinct kind; the prisoners were, therefore, acquitted on this charge, but afterwards indicted again for the other offence and convicted.
For the same reason, it would not be allowable to shew, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence, as that charged against him. Thus, in a prosecution for an infamous crime, an admission by the prisoner that he had
committed such an oftencc at another time and with another person, anil that he had a tendency to such practices, ought not to be admitted (i). But on an indictment for uttering a bank note, knowing it to be forged, proof that the prisoner had passed other forged notes of the same kind, is evidence that lie knew the note in question to be forged (2); and on a prosecution for uttering counterfeit money, the fact of the prisoner having other counterfeit money upon him, or of his having uttered other pieces of moiiej' of the same kind, is evidence of his having known that the money which he uttered was counterfeit (3). Such evidence, far from being foreign to the point in issue, is extremely material; for the head of the offence charged upon the prisoner is, that he did the act with knowledge; and it would seldom be possible to ascertain, under what circumstances the uttering took place, whether from ignorance or with an intention to commit a fraud, without inquiring into the demeanour of the prisoner in the course of other transactions. The more detached in point of time the previous utterings are, the less relation they will bear to that stated in the indictment: and the question then would be, whether the evidence is sufficient to warrant the inference of knowledge at one time, from such particular transactions at another time (4). That is a question entirely for the jury. But whatever weight the evidence may have, (which is quite another consideration,) it is clearly admissible; not as evidence of another offence, but simply of another transaction, in which the prisoner was engaged (;). The same kind of proof is constantly admitted in trials for murder; in which, former grudges and antecedent menaces are evidence of the prisoner's malice against the deceased.
(1) R. v.Cole, Mi:h. term, 1810, (4) Id. 94. See supra, as to pretumpby all the Judges, MS. iive evidence; and Hunter v. Gibson
(2) R. v. Wylie, I New. Rep. O1. and Johnson ,supra, p. 133.
R. v. Ball, 1 Campb. 31 |. (f) Sve alsu Rtckman's case, 2 East.
r3) I New Rep. 95. P. C. 1035.