for one of two reasons:-1st, that the connection between the principal and evidentiary facts is too remote and conjectural; 2nd, that it is excluded by the state of the pleadings, or what is analogous to the pleadings; or is rendered superfluous by the admissions of the party against whom it is offered" (b).

As to the second of these reasons, it is by Order 19, Rule 4, of the Rules of the Supreme Court, 1883, provided that "Every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved." Any facts on which a party can rely at the trial are material within the meaning of this rule (c). No evidence can be received to prove facts alleged by a party to be material but not stated or referred to in his pleadings (d).

For the first of the above reasons, no presumption as to the conduct, intention, or course of dealing between two parties arises from evidence 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, unless, indeed, it is part of the res gestæ, and so tends to throw any light upon the question at issue (e). 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 had sold the same quality of goods to other persons on the same terms, 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; and the admission of such evidence would be fraught

(b) Best on Evidence, 7th ed. 253. (c) Millington v. Loring, 6 Q. B. D.

190.

(d) Scott v. Sampson, 8 Q. B. D.

491.

(e) Milne v. Leisler, 7 H. & N. 786.

with the greatest inconvenience (ƒ). But where in an action for work done to some houses the defendant denied that he was personally interested in the property, the plaintiff was allowed to call other persons as witnesses who had done work or supplied materials on the personal order of the defendant (g).

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 " (h). Hence, where the 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 (i). So, in an action for slander alleging maltreatment of boys at a school, evidence of the treatment of boys at other schools, offered to prove what is proper treatment, was rejected (j); 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 (k). So, the

terms on which one tenant holds are no evidence of the terms on which another tenant holds under the same landlord (1); 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 (m); and in an action to recover money paid to a third party, the receipt given by the latter to the plaintiff is not per se evidence against the defendant (»).

Where, however, 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, where a letter from the defendant, in answer to a letter written on the plaintiff's behalf, was proved to have been seen by the plaintiff, it was admitted in evidence against the latter (o). But, in an action for false imprisonment on a charge of felony, where the defence was a bonâ fide belief that the plaintiff had committed the felony, the defendant was not allowed to give in evidence the record of a conviction of another person for a similar felony which he had not seen, although if he had seen it it would have been admissible as evidence of bona fides (p). In an action against a company to recover a sum of money obtained by them from the plaintiff through a fraud of the defendant's agent, committed with their knowledge and for their benefit, evidence of similar frauds committed on persons other than the plaintiff, by the same agent, in the same manner, with the knowledge and for the benefit of the defendant, is admissible on behalf of the plaintiff (9). The customs of one manor are not evidence of the customs

(1) Carter v. Pryke, Peake, 95. (m) Lady Wenman v. Mackenzie, 5 E. & B. 447.

(n) Carmarthen and Cardigan Rail. Co. v. Manchester and Milford Rail.

P.

Co., L. R., 8 C. P. 685.

(0) Carne v. Steer, 5 H. & N. 628. (p) Thomas v. Russell, 9 Ex. 764. (g) Blake v. Albion Life Assurance Society, 4 C. P. D. 94.

H H

of another manor (s), unless a connection between them is 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 (t); 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 (u).

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 (~): and evidence of an usage in the colonial market, under which a broker contracting on behalf of an undisclosed principal is personally liable unless he discloses such principal within three days from the date of the contract, has been admitted as relevant to show a similar custom in the fruit trade (w). So, parish books were held to be evidence against a member of the vestry of the practice of the parish, although they related to proceedings of the vestry before he became a member (a).

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, on a question between a highway and the

whether a piece of waste land,

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 grants of similar pieces between the same road and the inclosure of other persons. Lord Denman, C. J., 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 " (y). 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. It seems to be a safe general rule that transactions with third parties. are inadmissible, unless their privity or connection with the party against whom they are tendered is first proved extrinsi

(y) Doe v. 831.

Kemp, 2 Bing. N. C. 102; cf. Dendy v. Simpson, 18 C. B.