Entries in a tradesman's books by deceased shopman. Entries in the course of busi ness. committed on the waste were admitted in evidence, to show that the right to the soil was in his master, under whom the plaintiff claimed. (h) On the same principle, entries in the books of a tradesman by his deceased shopman, who thereby supplies proof of a charge against himself, have been admitted in evidence, as proof of the delivery of the goods, or of other matter there stated within his own knowledge. (i) But where the effect of the entry is not to charge the servant, it is not evidence. Thus, in an action for the hire of horses, an entry by the plaintiff's servant since dead, stating the terms of the agreement with the defendant, is not evidence. (j) There seems, however, to be more reason for considering that a rule exists which allows of declaration of deceased persons being received in evidence, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts, and the absence of all interest to pervert them, the declarations appear to have been made in the ordinary course of official, professional, or other business or duty, and to have been immediately connected with the transacting or discharging of such business or duty, and to be contemporaneous, or nearly contemporaneous, with the transaction to which they relate. (k) In all these cases, the person who made the entry must be proved to be dead: if he be entry must be living, he ought to be produced as a witness, to explain the circumstances under which the entry was made. (1) Where it appeared that an entry was in the handwriting of a banker's clerk who was then in the East Indies, it was held inadmissible. (m) Death of person, who made the proved. Hearsay of persons having no interest to mis-state. Other cases of hearsay. In some cases also, the declarations of a person deceased are admitted on the mere ground that he had a peculiar knowledge, and no interest to misrepresent. Thus, though the survey of a manor made by the owner is not evidence against a stranger in favour of a succeeding owner; (n) yet where A., seised of the manors of B. and C., causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and after a long time there is a dispute between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence. (0) So entries by a deceased rector or vicar as to the receipt of ecclesiastical dues are admissible for his successor, on the ground that he had no interest to mis-state the fact. (p) There are other exceptions to the general rule against the reception of hearsay evidence, such as the admission of declarations in cases of pedigree, and of old leases, rent-rolls, surveys, &c., which can occur so seldom in criminal proceedings, that it is not thought necessary to take further notice of them in this Treatise. (q) (h) Barry v. Bebbington, 4 T. R. 514. (j) Calvert v. Archbishop of Canter- (1) Cooper v. Marsden, 1 Esp. 2, by (m) Ibid. (n) Anon. 1 Stra. 95. (0) Bridgman v. Jennings, 1 Lord Ray. 734. Rosc. Ev. 33. (p) Le Gros v. Lovemoor, 2 Gwill. 529. Armstrong v. Hewit, 4 Price, 218. Lord Arundel's case, 2 Gwill. 620. Pringal . Nicholson, Wightw. 63. Walter v. Holman, 4 Price, 171. Parsons v. Bellamy, 4 Price, 190. 1 Phill. Ev. 307, et seq. (g) See post, p. 784, as to evidence of character. CHAPTER THE SECOND. THE PROOF OF NEGATIVE AVERMENTS.- -THE RULE THAT THE EVI- SECTION I. Of the Proof of Negative Averments. asserts the must prove it. affirmative It is a general rule of the law of evidence, in criminal as well as General rule in civil proceedings, that it lies on him who asserts the affirmative that he who of a fact to prove it, and not on him who asserts the negative, unless under peculiar circumstances where the rule does not apply. (a) Thus, on an indictment for bigamy, where the first marriage was by license, and the prisoner appeared to be under age at the time, it was held that it lay on the prosecutor to prove the consent of parents, required by the 26 Geo. 2, c. 33, in order to show the marriage valid, and not on the prisoner to prove the negative in his defence. (b) innocence In criminal proceedings, however, where negative averments The presumpusually impute a breach of the law to the defendant, the operation tion of law of this rule is sometimes counteracted by the presumption of law in favour of innocence; which presumption, making, as it were, a prima sometimes facie case in the affirmative for the defendant, drives the prosecutor drives the proto prove the negative. (c) Thus, on an information against Lord secutor to Halifax, for refusing to deliver up the rolls of the auditor of the Ex- prove the nega chequer, the Court of Exchequer put the plaintiff upon proving the negative that he did not deliver them; for a person shall be presumed duly to have executed his office till the contrary appear. (d) On an (a) Gilb. Ev. 131. Bull. N. P. 298. (b) Rex v. Butler, Russ. & Ry. 61. Rex v. Morton, ib. 19, in note to Rex v. James, ante, vol. 1, p. 209. But since the 4 Geo. 4, c. 76, a marriage by a minor without consent is valid. Rex v. Birmingham, ante, vol. 1, p. 210. (c) The same rule applies in civil proceedings. The principal cases on the sub VOL. II. ject are Monke v. Butler, 1 Roll. Rep. 83. 8 A. & E. 571. DDD (d) Bull. N. P. 298. tive averments. But this pre sumption does when the affir not operate, mative is peculiarly within the knowledge of the party charged. indictment for obtaining money, &c. under false pretences, the prosecutor must prove the averments negativing the pretences. In an action for the recovery of penalties under the hawkers and pedlars' act against a person charged with having sold goods by auction in a place in which he was not a householder, some proof of this negative, namely of the defendant not being a householder in the place, would be necessary on the part of the plaintiff. (e) On the trial of an indictment on the 42 Geo. 3, c. 107, s. 1, (repealed by the 7 & 8 Geo. 4, c. 27,) which made it felony to course deer on an inclosed ground, "without the consent of the owner of the deer," it ought to have appeared from the evidence produced on the part of the prosecution, that the owner had not given his consent. (ƒ) But where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate in the manner just mentioned; but the general rule as above stated applies, viz., that he who asserts the affirmative "is to prove it, and not he who avers the negative. Thus, upon a conviction under the 5 Ann. c. 14, s. 2, against a carrier for having game in his possession, it was held sufficient that the qualifications mentioned in the 22 & 23 Car. 2, c. 25, were neRex v. Turner. gatived in the information and adjudication, without negativing them in the evidence. (g) "The question is," said Lord Ellenborough, in that case, "upon whom the onus probandi lies; whether it lies upon the person who affirms a qualification, to prove the affirmative, or upon the informer who denies any qualification to prove the negative. There are, I think, about ten different heads of qualification enumerated in the statute, to which the proof may be applied; and according to the argument of to-day, every person who lays an information of this sort is bound to give satisfactory evidence before the magistrates to negative the defendant's qualification upon each of those several heads. The argument really comes to this, that there would be a moral impossibility of ever convicting upon such an information." (h) Rex v. Hanson. In the more recent case of Rex v. Hanson, (i) the rule was again considered and laid down by the Court of King's Bench. In that case there had been a conviction by two justices for selling ale without an excise license. The information negatived the defendant's having a license; but there was no evidence to support this negative averment; the only evidence to support the conviction being that the defendant had in fact sold ale. The question was, whether the informer was bound to give evidence to negative the (e) 1 Phill. Ev. 494. (f) Rex v. Rogers, 2 Campb. 654. See also Rex v. Hazy and Collins, 2 Carr. & P. 458, and Rex v. Argent, Ry. & Moo. C. C. R. 154, ante, p. 738; the former of which cases was an indictment for lopping and topping an ash tree without the consent of the owner, and the latter an indictment for taking fish out of a pond without the consent of the owner. According to the report of the case of Rex v. Rogers, Mr. Justice Lawrence seems to have thought it necessary to call the owner of the deer for the purpose of disproving his consent, and the owner not being called, the jury were directed to find a verdict of acquittal. But this decision has been overruled; and it is now established that the non-consent may be inferred from the circumstances under which the act was done, or proved by the agents of the owner. Ante, p. 737. (g) Rex v. Turner, 5 M. & S 206. See also Spieres. Parker, 1 T. R. 140, and Jelfs v. Ballard, I B. & P. 468, by Heath, J. In Rex v.Stone, 1 East, 639, the Court of King's Bench were equally divided on the point. (h) 5 M. & S. 209. (i) MS. Paley on Convictions by Dowling, p. 45, n. (1). existence of a license. In support of the conviction it was contended, that such evidence was unnecessary, and that it lay upon the defendant to prove that he had a license; for it is a rule, both of the civil and the common law, that a man is not bound to prove a negative allegation; Rex v. Turner was cited as an express authority on the point. Abbott, C. J., said, "I am of opinion, that the conviction is right. It seems to me, that this case is not distinguishable from Rex v. Turner. It is a general rule, that the proof of the affirmative lies upon the party who is to sustain it. The prosecutor, in general, is not called upon to prove negatively all that is stated in the information as matter of disqualification. In Rex v. Turner, all the learned Judges concur in that principle. I concur in all the observations upon which the judgment of the Court in that case was founded; and I think every one of them is applicable in principle to this. The general principle, and the justice of the case, is here against the defendant. It is urged, that if we decide against the defendant, we shall open the door to a great deal of inconvenience; that by no means follows; this man might have produced his license without any possible inconvenience, which would at once have relieved him from all liability to penalties. Probably the whole inquiry before the magistrates was as to the fact of selling the ale, and that nothing was said about the license; but, however, I think, by the general rule, the informer was not bound to sustain in evidence the negative averment, that the defendant had not a license. I do not mean to say that there may not be cases which may be fit to be considered as exceptions to that general rule; there is no general rule to which there may not be exceptions; all I mean to say is, that this is not one of those exceptions. The party thus called upon to answer for an offence against the excise laws, sustains not the slightest inconvenience from the general rule, for he can immediately produce his license; whereas, if the case is taken the other way, the informer is put to considerable inconvenience. Discussions may arise before the magistrates, whether the evidence produced is proper to sustain the negative; whether a book should be produced, or an examined copy, and many other questions of that sort; whereas none can arise when the defendant himself produces his license. This, therefore, not being one of the excepted cases, but a case falling directly within the general rule, I am of opinion, that judgment must be given for the crown." () In Willis's case it is said to have been agreed that, although an Willis's case. indictment states that the prisoner, "then or at any time before not being a contractor with or authorized by the principal officers or commissioners of our said Lord the King, of the navy, ordnance, &c. for the use of our said Lord the King, to make any stores of war, &c.," yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must show, if the truth be so, that he is within the exception in the statute. (k) Upon the same principle a very late case, the Apothecaries' Com- Apothecaries' (j) So in Rex v. Smith, 3 Burr. 1475, which was a conviction for trading as a hawker and pedlar without a license, it was held that the onus of proving the license lay on the defendant. (k) 1 Hawk. P. C. c. 89, s. 17, by the editor, ante, p. 268. Company v. pany v. Bentley, (a) was decided. That was an action for a penalty on the 55 Geo. 3, c. 194, for practising as an apothecary without having obtained the certificate required by that act. All the counts in the declaration contained the allegation that the defendant did act and practise as an apothecary, &c. without having obtained such certificate as by the said act is directed. No evidence was offered by the plaintiffs to show that the defendant had not obtained his certificate. The plaintiffs having closed their case, the counsel for the defendant submitted that there must be a nonsuit. But Abbott, C. J., said, "I am of opinion that the affirmative must be proved by the defendant. I think that it being a negative, the plaintiffs are not bound to prove it; but that it rests with the defendant to establish his having a certificate." Evidence to point in issue. Evidence must apply to the single transac tion charged. SECTION II. Evidence confined to the Point in Issue. No evidence can be admitted which does not tend to prove or be confined to disprove the issue joined. In criminal proceedings the necessity is stronger, if possible, than in civil, of strictly enforcing the rule, that the evidence is to be confined to the point in issue; for where a prisoner is charged with an offence, it is of the utmost importance to him, that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer. It is, therefore, a general rule, that the facts proved must be strictly relevant to the particular charge; and have no reference to any conduct of the prisoner unconnected with such charge. Therefore, it is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence as that for which he stands indicted. Thus, in a prosecution for an infamous crime, an admission by the prisoner, that he had committed such an offence at another time, and with another person, and that he has a tendency to such practices, ought not to be received in evidence. (b) Where upon an indictment for a burglary and stealing goods, the prosecutor failed to prove any nocturnal breaking, or any larceny, subsequent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed, it was proposed to abandon the charge of burglary, and to give evidence of a larceny by the prisoners, of some of the articles mentioned in the indictment, though committed before three o'clock on the day on which they were charged to have entered the house; but the Court refused (a) Ry. & Mood. N. P. C. 159. S. C. 1 C. & P. 538. (b) Rex v. Cole, Mich. T. 1810, by all the Judges, MS. 1 Phil. Ev. 477. In an action against the acceptor of a bill of exchange, where the defence was, that the acceptance was forged, evidence that the party who negotiated the bill had been guilty of other forgeries, was held inadmissible. Viney v. Barss, 1 Esp. 292. See also Balcetti v. Serani, Peake, N. P. C. 142. Graft v. Bertie, Peake's Ev. 104. |