mother is a strong circumstance of suspicion against her, if the child is proved to have been born alive. But, unless that is proved, the mere fact of concealment is in its nature equivocal (a). However, by the statute of 21 J. 1. c. 27. the burden of proof was cast upon the mother; and unless she proved the negative, namely, that the child was not born alive, that statute did in effect make the concealment conclusive evidence of the murder. This act has been since repealed by the statute 43 G. 3. c. 58. s. 3.; by which the endeavour to conceal the birth is subject to a lighter punishment.* SECT. III. Evidence is to be confined to the Points in Issue. Non assump. As the sole object and end of evidence is to ascertain the truth of the several disputed facts or points in issue on the one side or on the other, no evidence ought to be admitted to any other point. Thus in an action of assumpsit, the defendant under the general issue of non assumpsit may give sit. in evidence any thing which shows, that the plaintiff has not a good cause of action, or that nothing is due (1), as, performance, or payment (b); or may show a release (2), or (1) Bull. N. P. 152. (2) Bull. N. P. ib. 2 Campb. 558. * The 4th section enacts, "that it may be lawful for the jury, by whose verdict any prisoner charged with such murder shall be acquitted, to find, in case it shall so appear in evidence, that the prisoner was delivered of issue of her body, which if born alive would have been bastard, and that she did by secret burying or otherwise endeavour to conceal the birth thereof, and thereupon it shall be lawful for the Court to adjudge, that such prisoner shall be committed to the common jail or house of correction for any time not exceeding two years." (a) Vide The State v. Love, 1 Bay 167. (b) Although made after the commencement of the suit, if before trial. Bird v. Randall, 3 Burr. 1345. Baylies & another v. Fettyplace & another, 7 Mass. Rep. 325. * 127 accord and satisfaction (3), as a legal excuse for the nonperformance; or that the contract was different from that *stated (as, that it was made with the plaintiff and other persons not named (a) in the action (1), or with one of the plaintiffs alone) (2); or may disaffirm the contract by showing, that the plaintiff, who sues as a feme sole, was married at the time of the contract; or, that the defendant, who is sued as a feme sole, was then married; or, that the plaintiff was a bankrupt at the time (3); or may avoid the contract by showing that it was (b) usurious (4), or founded on a gaming transaction (5), or that the defendant was an infant (c) at the time of making the promise (6). But the defendant cannot, under the plea of non-assumpsit, show any matter, that would not go to the gist of the action, but merely to discharge it, as the statute of limitations (7). And though it should appear on the face of the declaration, that the cause of action did not arise within six years before the commencement of the action, yet the defendant can only take advantage of this, by pleading the statute. Nor will the defendant be allowed to prove under the general issue, that the contract was not with himself alone, as stated (3) Paramore v. Johnson, 1 Lord 820. (2) Wilsford v. Wood, 1 Esp. N. P. C. 183. (3) Bull. N. P. 153. (4) 1 Str. 498. Bull. N. P. 152. (5) 1 Ld. Ray. 89. (6) 1 Salk. 279. Bull. N. P. 152. Gilb. Ev. 163. (7) Bull. N. P. 152. (a) Vide Baker v. Jewell, 6 Mass. Rep. 460. Converse v. Symmes, 10 Mass. Rep. 377. (b) Vide Cuyler v. Robinson, 3 Day 68. Cranch 180. Levy v. Gadsby, 3 (c) Vide Wailing v. Toll, 9 Johns. Rep. 389. Stansbury v. Marks, 4 Dall. 130. But infancy of the plaintiff must be pleaded in abatement. Schermerhorn v. Jenkins, 7 Johns. Rep. 373. A want of jurisdiction in the Court must in general be pleaded in abatement; but it may be shown, under the general issue, that there is no court in the country which has jurisdiction of the cause. Rea v. Hayden, 3 Mass. Rep. 24. in the declaration (d), but jointly with other persons still living (8); for proof that another contracted is not evidence, that the defendant himself did not contract. Such an objection can only avail when the fact is pleaded in abatement. And although it should appear on the evidence produced on the part of the plaintiff, that other persons are liable as joint contractors with the defendant, this is no variance, and the plaintiff will be entitled to recover (9). But the plaintiff, in an action for money had and received by the defendants, cannot give evidence of money received by the defendants and another partner since deceased; for, insuch a case there cannot be a plea in abatement, as if the other partner were still alive (10) (e). *The rule, which has been just laid down with respect to joint contracts, either written or by parol, applies also to the case of joint bonds. If an action is brought against one obligor alone who pleads non est factum, the plaintiff may maintain his action, notwithstanding that on the production of the bond there appears to be a joint obligor (1) (a). The plea of non est factum puts in issue, whether it be the defendant's deed at the time of pleading. Evidence is therefore admissible under this plea, to show that, at the time of pleading, the deed was by the rules of common law absolutely void (2); as, that the defendant was at the time of the execution à lunatic (3), or a married woman (4), or (8) Rice v. Shute, 5 Burr. 2611. Abbot v. Smith, 2 Blac. Rep. 946. Cowp. 832. (1) Whelpdale's case, 5 Rep. 119. Cabell v. Vaughan, 1 Saund. 291. (2) Whelpdale's case, 5 Rep. 119. (3) Yates v. Boen, 2 Str. 1104. (4) Anon. C. 12 Mod. 609. Lambert v. Atkins, 2 Campb. 272. Bull. (10) Spalding v. Mure and others, N. P. 172. 6 T. R. 363. 5. (9) Germain v. Frederick, and Evans v. Lewis, 1 Saund. 291. c. d. in note. (d) Vide Ziele v. Executors of Campbell, 2 Johns. Cas. 382. Robinson v. Fisher, 3 Caines' Rep. 99. (e) A promise must be proved to have been made by all the defendants, who are laid in the declaration to have wise the plaintiff will fail under the general issue. rich and others, 2 Johns. Rep. 213. (a) Vide 1 Bos. & Pul. 72. made it, other Tom v. Good * 128 Non est factum. *129 that he was made to sign it when so drunk (b) as not to know what he did (5), or that the deed was delivered as an escrow on a condition not performed (6) (c). For the same reason the defendant may show, that, after the delivery of the deed and before the time of bringing the action, the deed has been altered in a material point by some addition, or rasure, or interlineation, &c.; for then at the time of pleading, it was not the defendant's deed, but absolutely void (7). And the rule is the same, whether such a material alteration was made by the obligee, or by a stranger without his privity; the deed is void in either case. It was resolved in Pigot's case (8), that if the obligee alters the deed, though in words not material, the deed is void; but if a stranger, without his privity, alters the deed in any point not material, it will not avoid the deed. The defendant, under the general plea of non est factum, cannot prove payment, or give in evidence a release, or accord and satisfaction; and if the deed is merely voidable, (as, by reason of his infancy, or for duress of his person,) he may plead such matter, and so avoid the deed; but cannot give it in evidence under the *plea of non est factum, for at the time of pleading, it had not been avoided, and was his deed (1). Even in cases, where it is enacted by the legislature that the deed shall be void, (as, by stat. 9 Ann. c. 14. s. 1. for gaming, by stat. 5, 6 Ed. 6. c. 16. s. 2, 3. for sale of office, by 12 Ann. st. 2. c. 12. s. 2. for simony, and by stat. 13 Eliz. c. 8. for usury,) the defendant cannot (5) Bull. N. P. 172. (6) 5 Rep. 119. b. Bull. N. P. 172. Stoytes v. Pearson, 4 Esp. N. P. C. 255. (7) 5 Rep. 119. b. Pigot's case, 11 Rep. 27. (8) 11 Rep. 27. (1) 5 Rep. 119. (b) Pitt v. Smith, 3 Campb. 33. But it seems that the intoxication must have arisen by the contrivance of the plaintiff. Johnson v. Medlicott, 3 P. Wms. 130. (c) Or that a different instrument was substituted, instead of the one which the defendant supposed he was executing. Van Volkenburgh v. Rouk, 12 Johns. Rep. 337. take advantage of this under the plea of non est factum, but ought to plead the special matter (2). In an action of trespass for assault and battery, the de- Not guilty, in trespass. fendant cannot give in evidence, under the general issue, that he was first assaulted by the plaintiff, except in mitigation of damages: but with that view the evidence is admissible. In trespass quare clausum fregit, evidence of title and of right of possession is admissible under the general issue; as, a demise from the owner of the land (3); or, that the plaintiff's interest in the premises, which he had occupied under the defendant, had expired (4): or the defendant may prove, that at the time of the supposed trespass the freehold and right of possession were in a third person, and that he entered by his command (5). Such evidence falsifies the declaration, by showing that the defendant did not break the close, as is stated in the declaration (6). But the defendant under this plea cannot prove a license from the plaintiff (7), or defect of the plaintiff's fences (8), or right of common (9), or right of way (10), or other easement (11). Formerly, he could not have proved that he entered to take a distress for a rent-charge (12); but this evidence is now admissible under the general issue, by stat. 11 G. 2. c. 19. s. 21. In trespass for taking goods, the defendant may prove under the general issue, that the *goods were put into his custody as pound-keeper, and that as such he detained them (1). * 130 custom. When a right is claimed by custom in a particular man- Issue on or or parish, proof of a similar custom in an adjoining parish or manor is not admissible evidence. In the Duke of Somerset's case (2), Lord Ch. J. Raymond said, he had (2) 5 Rep. 119. (3) Dodd v. Kyffin, 7 T. R. 354. 4) Argent v. Durrant, 8 T. R. 403. (5) Diersley's case, 1 Leon. 301. 8 T. R. 403. (6) Gilb. Ev. 221. Gilb. Ev. 216. 2T R. 166. 8. (11) Hawkins v. Wallis, 2 Wils. 173. (12) Co. Lit. 283. a. (1) Badkin v. Chancellor and others, Cowp. 476. (2) D. of Somerset v. France, 1 Str. 661. Ruding v. Newel, 2 Str. 957. Furneaux v. Hutchins, Cowp. (8) Co. Lit. 283. a. Gilb. Ev. 216. 807. By Buller, J. in Noble v. Ken(9) Id. (10) Gilb. Ev. 217. 220. noway, 2 Doug. 512. S. P.; by |