this be done, it will be the duty of the judge to reject the evidence, or to strike it from his notes.1

Evidence of good or bad character is generally irrelevant and inadmissible in civil cases, unless character be of the substance of the issue.2 In actions for seduction, evidence of the real plaintiff's bad character is admitted in reduction of damages; but the evidence must refer to a time prior to that when the seduction took place.3

In actions for defamation, evidence of the plaintiff's general good character is held irrelevant, even on a plea of justification. But in such cases, the plaintiff may give in evidence any words, as well as any act, of the defendant, to show the malice or animus of the words which are the subject of the action.5 But the mere abandonment of a plea of justification ought not to weigh with a jury, where the actual defence sets up only a privileged communication. And where the libel charged the plaintiff with incompetency as a surveyor, he was not allowed to travel out of the record by showing that he had, at other times, acted competently in that capacity.7

In criminal cases the rule is observed with the utmost strictness, that no evidence shall be admitted which does not tend directly to the proof, or disproof, of the matter in issue. Thus, evidence that a prisoner has committed a similar crime before, or that he has a disposition to commit such crimes, is inadmissible." On a charge of burglary and larceny on a particular day, evidence of a larceny in the same house on a previous day was rejected.10 But, as stated already,"1

1 Ibid.

21 Phill. 502.

3 Elsam v. Faucett, 2 Esp. 563.

4 Cornwall v. Richardson, R. & M. 305. 5 Pearson v. Lemaitre, 5 M. & G. 700.

• Wilson v. Robinson, 7 Q. B. 68.

7 Brine v. Razalgetti, 3 Exch. 692. 8 Wels. Cr. Pr. 183.

R. v. Cole, 1 Phill. Ev. 508.

10 R. v. Vandercomb, 2 Lea. C. C. 816.

11. Sup. p. 223.

when the animus of an act has to be shown, previous and subsequent conduct will be evidence of it. Thus, the animus in uttering counterfeit coin may be proved by evidence of previous utterings; and the possession alone of several pieces of counterfeit coin is evidence of guilty knowledge. So, when several felonies are so connected as to form one transaction, evidence of all may be given in order to convict of one. Thus, where the indictment charged stealing from the prosecutor's till; and the evidence showed different takings, by which the whole deficit was caused; it was held that the fact might be shown by proof of the results of different inspections of the till.2 So in conspiracies, since the act of one is in law the act of all, when complicity has been proved, the act of one conspirator is evidence on an indictment against

another.3

In larceny, to prove the identity of the prisoner, it may be shown that other goods not included in the indictment, which were stolen at the same time, were found in his possession.4

On the trial of Hunt,5 for riot and conspiracy, resolutions passed at a meeting, prior and avowedly preliminary to that named in the indictment, were held to be relevant evidence to show the objects of the second meeting. So, the general conduct of the members on their way to it, their military order and threatening language to people on the road, were held strictly relevant to show the character of the meeting. On the other hand, it was held that the defendant could not go into evidence of the conduct of the military who dispersed the meeting, because that could have no bearing upon the intention and object of the assembly, as these must have existed before the dispersion, and were in their nature perfectly distinct from the conduct

1 R. v. Jarvis, 7 Cox Cr. Cas. 53.

2 R. v. Ellis, 6 B. & C. 145.

3 Supra, p. 92.

42 Wels. Cr. Pr. 184.

5 3 B. & A. 566.

of those who dispersed the assembly. On the substantial facts of the case, Abbott, C. J., said:

"The case submitted to the jury by the present indictment presented two questions. First, the general character of the assembly, as in all cases of conspiracy or other unlawful acts in which many persons are concerned. And, secondly, the particular case of each individual charged, as connected with the general character, supposing the general character to be such as that its criminality might, in the result, be a fit matter for the consideration of the jury. Now it was shown that a very considerable part of the persons assembled, or, at least, a very considerable part of those who came from a distance, went to the place of meeting in bodies, to a certain extent arranged and organized; and with a regularity of step and movement resembling those of a military march, though less perfect. The effect of such an appearance, and the conclusion to be drawn from it, were points for the consideration of the jury. And if this appearance was in itself proper for the consideration of the jury, it must have been proper to show to them that, at the very place from which one of these bodies came, a number of persons had assembled before daybreak, and had been formed and instructed to march as soon as there was light enough for such an operation; and that some of the persons thus assembled had grossly illtreated two others whom they called spies, and had extorted from one of them, at the peril of his life, an oath never to be a king's man again, or to name the name of a king; and that another of the bodies that went to the place of meeting expressed their hatred towards this person, by hissing as they passed his door. These matters were in my opinion unquestionably competent evidence upon the general character and intention of the meeting. Their effect as to each particular defendant was, as I have already observed, a distinct matter for the consideration of the jury."

The principles according to which the relevancy and irrelevancy of evidence are distinguished have

been now explained. They are co-extensive and identical with the principles of presumptive evidence; and, in fact, embrace the whole subject of legal evidence. It is equally a condition of direct as of presumptive evidence, that it should be relevant to the issue; and it is pre-eminently the duty of a judge to admit no evidence which he does not consider to be relevant, either as direct proof, or as the ground of legitimate inference. In many cases, as in the principal issues in civil cases, the relevancy of evidence has been defined by the amount of proof which is usually given and required to support them. criminal cases, where practically there is no issue but the general issue, the line of demarcation has been drawn less distinctly; and the discretion of the judge requires, therefore, to be exercised with proportionable vigilance.

In

229

CHAPTER XXII.

ON THE GENERAL ISSUE.

Ir is the province rather of pleading than of evidence to determine the nature of the evidence which a party to an action is required or allowed to give under a general or special issue. The nature of such evidence under special issues is beyond the limits of this work; but, as a sequel to a series of chapters in which the burden of proof and the relevancy of evidence have been considered, it may be useful to trace in outline the applicability of these principles to the simplest and widest form of traverse, viz., the general issue. In the superior courts of common law the new pleading rules of Hilary Term, 1853, have established certain principles under this head in actions of contract and tort, which will be now stated briefly; and the same principles apply substantially to county and other inferior courts.

1. Contracts.

"In all actions of simple contract, except as hereinafter excepted, the plea of non assumpsit, or a plea traversing the contract or agreement in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of the matter of fact from which the contract, promise, or agreement alleged may be implied by law."