EVIDENCE OF COLLATERAL FACTS EXCLUDED. 233 doubt exists as to whether the defendant, in regard to the particular act complained of, is entitled to plead not guilty by statute, the Court will sometimes relax the rule, and allow him to plead specially in addition to that plea, on the ground that rules should not be made for very nice cases, and that the acts, which confer this right on defendants, should be liberally and benignantly expounded (i). § 236. The statutes enabling persons, who act in pursuance thereof, to plead the general issue, and to give special matter in evidence under such plea, are extremely numerous, and, although laborious attempts have been made to enumerate them, no list approaching to accuracy has yet been published (j). The pleader, therefore, is left to his own resources to discover in what cases the defendant may or may not avail himself of such plea; but he should remember that, by the act of 5 & 6 Vict., c. 97, §. 3, so much of any clause or provision in any act commonly called Public local and personal, or Local and personal, or in any act of a local and personal nature (k), whereby any party was entitled, before the 10th of August, 1842, to give special matter in evidence under the general issue, is repealed. § 237. The rule confining evidence to the points in issue, not only precludes the litigant parties from proving any facts not distinctly controverted by the pleadings; but limits the mode of proving even the issues themselves. Thus, it excludes all evidence of collateral facts, which are incapable of affording any reasonable presumption as to the principal matters in dispute; and the reason is, that such evidence tends needlessly to consume the public time, to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead; moreover, the adverse party, having had no notice of such evidence, is not prepared to rebut 1 C. M. & R. 61; 4 Tyrwh. 670; 2 Dowl. 702, S. C.; Fisher v. Thames Junct. Rail. Co., 5 Dowl. 773; Ross v. Clifton, 11 A. & E. 631; 1 G. & D. 72; 9 Dowl. 1033, S. C. (1) Langford v. Woods, 8 Scott, N. R. 369; 7 M. & Gr. 625, S. C. (j) An extremely inaccurate list is given in Lutwyche on Plead. Gen. Issue, p. 4-15. (4) As to the meaning of this phrase, see Richards v. Easto, 15 M. & W. 244 ; Cock v. Gent, 12 M. & W. 234. 234 RES INTER ALIOS ACTE EXCLUDED. it. The most important class of facts, which are thus excluded, are the acts and declarations, either of strangers, or of one of the parties to the suit in his dealings with strangers. These, which in the technical language of the law are denominated res inter alios acte, it would be manifestly unjust to admit, since the conduct of one man under certain circumstances, or towards certain individuals, varying as it will necessarily do, according to the motives which influence him, the qualities he possesses, and his knowledge of the character of those with whom he is dealing, can never afford a safe criterion by which to judge of the behaviour of another man similarly situated, or of the same man towards other persons. § 238. The application and extent of this rule will be best understood by referring to a few of the leading decisions on the subject. In an action of trover brought against the creditor of a bankrupt by the assignees, the goods in dispute were sought to be recovered on the ground that, before they came into the hands of the defendant, acts of bankruptcy had been committed; and the plaintiffs endeavoured to prove these acts, by showing the prior delivery of other goods to various creditors, who, after the fiat had issued, had returned them to the assignees; but the Court were of opinion that the conduct of these creditors in returning the goods could not affect the title of the defendant. The only way in which their conduct bore upon the case, was by showing their conviction that they had received the goods under circumstances, which did not entitle them to keep possession; and as their opinions, expressed after the fiat, could not have been received, evidence of their acts, adduced for the purpose of raising an inference respecting the previous intentions, either of themselves or of the bankrupt, were equally inadmissible (7). So, where the question between landlord and tenant was, whether the rent was payable quarterly or halfyearly, evidence of the mode in which other tenants of the same landlord paid their rent was rejected (m); and where it was necessary for a brewer to prove that he had supplied a publican with good beer, other publicans were not allowed to show that, during the same period as the dealing in question, he had furnished them (1) Backhouse v. Jones, 6 Bing. N. C. 65; 8 Scott, 148, S.C. CUSTOMS OF MANORS WHEN ADMISSIBLE. 235 with beer of an excellent quality, for a man may deal well with some of his customers, though not with others (n). In another case, where the point in issue was whether the plaintiff's scholars were ill-fed, a witness was not allowed to be asked as to the comparative quality of the provisions supplied by the plaintiff, with those consumed in a particular school, where the witness was educated, though evidence would be admissible to show the general treatment of boys at schools (0). Again, in an action of assumpsit against a married woman, where the issue was, in part, whether the defendant had represented herself to the plaintiff as a feme sole, and whether he had dealt with her believing her to be such, it was held that evidence of the defendant's dealings with other tradesmen could only be admissible, if at all, on the ground that she had held herself out to them as a single woman, in such a manner as to reach the plaintiff's ears (p). So, also, in an action brought by the indorsee against the acceptor of a bill, where the defence was that the acceptance was a forgery, evidence that a collection of bills, on which the defendant's acceptance was forged, had been in the plaintiff's possession, and that some of them had been circulated by him, was rejected, there being no distinct proof that the bill in question had ever formed part of that collection (q). § 239. These last words it is important to notice, since they point out an exception to the rule under discussion, in favour of the admissibility of facts which, though collateral, are proved to be connected by some general link with the matter in issue. This exception has been recognised in numerous cases. Thus, there is no rule better established, or more frequently acted upon than this, that the customs of one manor cannot be given in evidence (n) Holcombe v. Hewson, 2 Camp. 391, per Lord Ellenborough. (0) Boldron v. Widdows, 1 C. & P. 65, per Abbott, C. J. (p) Barden v. Keverberg, 2 M. & W. 61. See Smith v. Wilkins, 6 C. & P. 180, where, the question being whether credit was given to defendant's wife or to her father, evidence that other tradesmen had given credit to the father was properly rejected by Tindal, C. J. Also Delamotte v. Lane, 9 C. & P. 261. (9) Griffits v. Payne, 11 A. & E. 131; 3 P. & D. 107, S.C.; Thompson v. Mosely, 5 C. & P. 502, per Lord Lyndhurst; Viney v. Barss, 1 Esp. 293, per Lord Kenyon; Balcetti v. Serani, Pea. R. 142, per Buller, J. Such evidence would be clearly inadmissible in an indictment for forgery, per Lord Denman, 11 A. & E. 133. 236 CUSTOMS OF MANORS WHEN ADMISSIBLE. to prove the customs of another; because, as each manor may have customs peculiar to itself, to admit the peculiar customs of another manor in order to show the customs of the manor in question, would be a very false guide for the purpose of leading to any sound conclusion, and would, in fact, put an end to all question as to the peculiar customs in particular manors, by throwing them open to the customs of all surrounding manors (r). Still, such customs become evidence the moment that a foundation has been laid for their admission, by clear proof of a sufficient connexion between the two manors. The mere fact, indeed, that the two lie within the same parish and leet, will not be sufficient; nor even that the one was a subinfeudation of the other; at least, 'unless it be clearly shown that they were separated after the time of legal memory, since otherwise they may have had different immemorial customs (s). If, however, it can be satisfactorily proved that the customs in the two manors are identical, or that the one was derived from the other after the time of Richard the First, then the customs of each will respectively become evidence (t); and so, also, if the customs in question be a particular incident of the general tenure which is proved to be common to the two manors, evidence may be given of what the custom of the one is as to that tenure, for the purpose of showing what is the custom of the other as to the same (u). For instance, prove in a particular manor that borough English or gavelkind prevails, and then you may see from other manors what are the peculiarities of these tenures (v). § 240. The manors on the border between England and Scotland (w), and those in the mining districts of Derbyshire and Cornwall, will furnish other examples of the application of this rule; since, throughout the former, a particular species of tenure, called (r) Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 235, per Lord Abinger; Furneaux v. Hutchins, 2 Cowp. 807; Doe v. Sisson, 12 East, 62. (s) Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 218. (t) Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 242, 243, per Alderson, B. (u) Id.; Stanley v. White, 14 East, 338, 341, 342, per Lord Ellenborough ; R. v. Ellis, 1 M. & Sel. 662, per id.; Duke of Somerset v. France, 1 Str. 662; Champian v. Atkinson, 3 Keb. 90, explained by Rolfe, B., in 10 M. & W. 246, 247. () Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 246, per Rolfe, B. (w) Rowe v. Parker, 5 T. R. 31, per Lord Kenyon. COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. 237 tenant-right, and in the latter particular customs, as to the rights of the miners and the rights to the minerals, prevail; and consequently, if in one of these manors no example can be adduced of what is the custom in any particular case, it is only reasonable that, in order to explain the nature of the tenure or right in question, which is not confined to a single manor, but prevails equally in a great number, evidence should be admissible to show what is the general usage with respect to that tenure or right (x). Thus, where in each of several manors belonging to the same lord, and part of the same district, it appeared that there was a class of tenants called assessional tenants, to whom their tenements were granted by similar words, evidence of the rights enjoyed by those tenants in one manor was held admissible, to show the extent of their rights in another (y). This last case, indeed, raised no question as to manorial title; for had there been no manor at all, precisely the same evidence would have been admissible, provided the land had been all held under the assessional tenure (z). § 241. So, again, upon a question whether the Crown, in right of the Duchy of Lancaster, had the exclusive privilege, under the original charter granted to Henry Duke of Lancaster in the year 1349, of appointing a coroner within the honour of Pontefract, evidence of appointments of coroners, and of their acting, in other parts of the duchy, out of the honour of Pontefract, was held admissible (a). On the same principle, the mode of conducting a particular branch of trade in one place, has been proved by showing the manner in which the same trade is carried on in another place (b); and where the dispute at the trial was as to the exact line of boundary between the manors of Wakefield and Rochdale, which the plaintiff contended was the ridge of a mountain, whence the waters descended in opposite directions, he was allowed to prove, in support of this view, that the ridge of the same range of hills separated the manor of Rochdale from another manor which (x) Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 237, per Lord Abinger. (y) Rowe v. Brenton, 8 B. & C. 758; 3 M. & Ry. 361, S.C. (2) Per Lord Abinger, in Marq. of Anglesey v. Lord Hatherton, 10 M. & W. 237, 238. (a) Jewison v. Dyson, 9 M. & W. 540. (b) Noble v. Kennaway, 2 Doug. 510. |