220

CHAPTER XXI.

ON THE RELEVANCY OF EVIDENCE.

As it is the object of pleading to reduce the case of each litigating party to one or more substantial issues which involve the merits of the question; and as for this purpose none but material allegations which tend to the raising of such issues are admissible; so it is the object of evidence to provide that, when such allegations have been made, and such issues selected, they shall be supported by strictly relevant proof. It is impossible to define the distinction between relevant and irrelevant evidence, and even the cases illustrate the difference unsatisfactorily. In the case of direct evidence, there is little difficulty in drawing the practical line; but, since a large proportion of evidence is of a presumptive or circumstantial character, it requires the keenest perspicacity to distinguish between legitimate presumption and irrelevant hypothesis; and it is in observing this appreciable, but indescribable distinction, that the sense and wariness of an able judge especially appear. The rule is that

The evidence must correspond with the allegations, and be confined to the points in issue.1

It is a fundamental principle that no credible presumption as to the conduct, intention, or course of

1 Greenl. 58; Tayl. 194.

dealing between two parties can be derived from proof of the conduct, intention, or course of dealing between one of them and a third party. Such evidence is said to be res inter alios acta, and will be rejected as irrelevant to the issue. The fact that A. contracted, or dealt in a particular manner with B., is no evidence that he meant to contract, or deal in the same manner, with C. Thus in an action for goods sold and delivered, in which the defence is that the plaintiff sold them to the defendant on certain terms, the defendant cannot show that the plaintiff has sold the same quality of goods to other persons on the same terms;1 for "the fact that a man has once or more acted in a particular way does not make it probable that he so acted on a given occasion. The admission of such evidence would be fraught with the greatest inconvenience. Where, indeed, the question is one of guilty knowledge or intent, as in cases of uttering forged documents or base coin, such evidence is admissible as tending to establish a necessary ingredient of the crime."2

Thus, in an action by a brewer against a publican, where the issue was as to the quality of beer supplied by the former to the latter, Lord Ellenborough refused to let the plaintiff call witnesses to show that he supplied them, at the time in question, with good beer, His Lordship said: "This is res inter alios acta. We cannot here inquire into the quality of different beer furnished to different persons. The plaintiff might deal well with one, and not with the others. Let him call some of those who frequented the defendant's house, and there drank the beer which he sent in; let him give any other evidence of the quality of the beer; but I cannot admit witnesses to his general character and habits as a brewer."3 Hence, where the

2

issue was whether the plaintiff, a tradesman, had given credit to A.'s father, evidence that other tradesmen had given credit to the father was rejected.1 So, evidence of the treatment of scholars at one school is no evidence of the quality of their treatment at another school; and where the action was for withdrawing scholars without a quarter's notice, according to a prospectus of terms, which the defendant was proved to have received, it was held, that a witness might state that she had never received any prospectus while her children had been at the school; because this evidence bore on the usual course of the plaintiff's dealing: but that she could not prove that she had taken her children away without notice, and without being called on to pay a quarter's salary; apparently because this might have been merely a matter of peculiar arrangement.3 So, the terms on which one tenant holds are no evidence of the terms on which another tenant holds under the same landlord; and an award in favour of a party to a former action is not evidence for a party to a subsequent action, claiming by paramount title, as against a party claiming through the person against whom the award was made.5 So, on the trial of an indictment for carrying on a noxious trade, a previous summary conviction for a similar offence is inadmissible.6

But where the extraneous transaction contains the principle of a reasonable and credible inference as to the motive or conduct of the party, the judge, in his discretion, will admit evidence of it. Thus, in false imprisonment on a charge of felony, where the defence is a bonâ fide belief that the defendant had committed felony, the defendant may show that he had previously

1 Smith v. Wilkins, 6 C & P. 180.

2 Boldron v. Widdows, 1 C. & P. 59. Delamotte v. Lane, 9 C. & P. 261.

Carter v. Pryke, Peake, 95.

5 Lady Wenman v. Mackenzie, 25 L. J. 44, Q. B. 6 R. v. Fairrie, 30 L. T. 131.

done acts which go to establish the presumption of bonâ fides. So, on a charge of uttering counterfeit coin, a guilty knowledge may be proved by evidence either of a previous or subsequent uttering of another description of counterfeit coin.2

The customs of one manor are not evidence of the customs of another manor,3 unless a connection between them be first established, as by showing that they belong to the same lord, that the same description of tenants has existed in each, and that their leases have been granted in the same terms. In such a case, the usage which has prevailed in one part, and which is therefore evidence to explain the meaning of a grant there, is evidence to explain a grant expressed in similar terms as to any other part of the district.4 But the unity or original identity of the manors must be clearly shown; and the mere fact of their being in the same leet, or parish, is not sufficient.5

A custom of trade may be proved by showing what is the custom of the same trade in a different place. Thus, evidence of the custom of fisheries off Newfoundland, is evidence of the custom of similar fisheries off the coast of Labrador.6

When the issue involves a question of manorial right as between a lord and an adverse claimant, evidence of the exercise of such right over part of a waste has been held to be evidence of title to other parts which, from their local situation, may be deemed to belong to it. Thus, in the Exchequer Chamber, on a question whether a piece of waste land, between a highway and the plaintiff's inclosure, belonged to the plaintiff, or to the lord of the manor, it was held that the latter might support his claim by evidence of

1 Thomas v. Russell, 23 L. J. 233, Exch.

2 Reg. v. Foster, 25 L. T. 119.

3 Marquis of Anglesea v. Lord Hatherton, 10 M. & W. 233.

Bayley, J.: Rowe v. Brenton, 8 B. & C. 764.

5 Lord Abinger, 10 M. & W. 236.

6 Noble v. Kennaway, 2 Doug. 510.

grants of similar pieces between the same road and the inclosure of other persons. Lord Denman said:— "If the lord has a right to one piece of waste, it affords no inference, even the most remote, that he has a right to another in the same manor, although both may be similarly situated with respect to the highway. Assuming that all were originally the property of the same person, as lord of the manor, which is all that the fact of their being in the same manor proves, no presumption arises, from his retaining one part in his hands, that he retained another; nor, if in one part of the manor the lord has dedicated a portion of the waste to the use of the public, and granted out the adjoining land to individuals, does it by any means follow, nor does it raise any probability, that in another part he may not have granted the whole out to private individuals, and they afterwards have dedicated part as a public road. But the case is very different with regard to those parcels which, from their local situation, may be deemed part of one waste or common; acts of ownership, in one part of the same field, are evidence of title to the whole; and the like may be said of similar acts on part of one large waste or common."1

In all these cases it will be observed, that the act between third parties, which has, nevertheless, been received, has been either connected presumptively with the party who is to be affected by it, or has been invested with a primâ facie credibility by evidence of an original unity of nature or title. In short, it seems to be a safe general rule in these cases, that transactions with third parties are inadmissible, unless their privity or connection with the party against whom they are tendered be first proved extrinsically, so as to make such intermediate transactions operate in the nature of an admission or estoppel.2 Unless

Doe d. Barrett v. Kemp, 2 Bing. N. C. 102; cf. Dendy v. Simpson, 27 L. T. 288.

2 See Maule and Bosanquet, JJ., 1 M. & G. 614; Petrie v. Nuttall, 25 L. J. 200, Ex.