238 COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE.

adjoined the manor of Wakefield; because, this being a natural boundary, which was equally suitable in both cases, it was highly improbable that it should have been varied (c).

§ 242. In like manner it has been held, upon a question whether a slip of waste land, lying between the highway and the inclosed lands of the plaintiff, belonged to him or to the lord of the manor, that the lord might give evidence of acts of ownership on other parts of the waste land between the same road and the inclosures of other persons, although at the distance of two miles from the piece in dispute, and although the continuity of the waste was interrupted for the space of some sixty or seventy yards, by the intervention of a bridge and some old houses (d). So, where, in trespass, the object of the plaintiff was to prove himself the owner of the entire bed of a river flowing between his land and that of the defendant, and thus to rebut the presumption that each party was entitled ad medium filum aquæ (e), he was allowed to give in evidence acts of ownership exercised by himself upon the bed and banks of the river on the defendant's side, lower down the stream, where it flowed between the plaintiff's land and the farm of a third party, adjoining the defendant's property; as also repairs which he had done, beyond the limits of the defendant's land, to a fence which, dividing that and other land from the river, ran along the side of the stream for a considerable distance, till it came opposite to the extremity of the plaintiff's property on the other side (ƒ).

(c) Brisco v. Lomax, 8 A. & E. 198; 3 N. & P. 388, S.C.

(d) Doe v. Kemp, 7 Bing. 332; 2 Bing. N. C. 102; 2 Scott, 9, S.C., recognised by Parke, B., in Jones v. Williams, 2 M. & W. 327, 328. (e) Ante, § 120.

(f) Jones v. Williams, 2 M. & W. 326. The observations of Parke, B., in this case are so pertinent, that no apology is necessary for introducing them here at length. "I am also of opinion that this case ought to go down to a new trial, because I think the evidence offered of acts in another part of one continuous hedge, and in the whole bed of the river, adjoining the plaintiff's land, was admissible in evidence, on the ground that they are such acts as might reasonably lead to the inference that the entire hedge and bed of the river, and, consequently, the part in dispute, belonged to the plaintiff. Ownership may be proved by proof of possession, and that can be shown by acts of enjoyment of the land itself; but it is impossible, in the nature of things, to confine the evidence to the very precise spot on which the alleged trespass may have been committed: evidence may be given of acts done on other parts, provided there is such a common character of locality between those parts and the spot in question as would raise a reasonable inference

COLLATERAL FACTS CONNECTED WITH FACT IN ISSUE. 239

§ 243. The same principle applies with increased force to the case of mines, because it is not possible that the lessees of minerals, lying under an extensive district, can enter upon, and take actual possession of, every part of that which forms the subject of demise, and, moreover, the mode of occupying a mine cannot afford the same evidence of possession as the occupation of the surface, the produce of which is from time to time consumed and renewed. When one is taken, it is gone for ever. Evidence, therefore, of working under one part of the surface is, under a demise of all mines and minerals lying beneath a large continuous tract of waste land, evidence of possession of the entire subject of demise (g).

§ 244. In these, and the like cases, it is for the judge to decide (h),

:

in the minds of the jury, that the place in dispute belonged to the plaintiff if the other parts did. In ordinary cases, to prove his title to a close, the claimant may give in evidence acts of ownership in any part of the same inclosure; for the ownership of one part causes a reasonable inference that the other belongs to the same person: though it by no means follows, as a necessary consequence, for different persons may have balks of land in the same inclosure; but this is a fact to be submitted to the jury. So I apprehend the same rule is applicable to a wood which is not inclosed by any fence: if you prove the cutting of timber in one part, I take that to be evidence to go to a jury to prove a right in the whole wood, although there be no fence, or distinct boundary, surrounding the whole; and the case of Stanley v. White, 14 East, 332, I conceive, is to be explained on this principle there was a continuous belt of trees, and acts of ownership on one part were held to be admissible to prove that the plaintiff was the owner of another part, on which the trespass was committed. So I should apply the same reasoning to a continuous hedge; though no doubt the defendant might rebut the inference that the whole belonged to the same person, by showing acts of ownership on his part along the same fence. It has been said, in the course of the argument, that the defendant had no interest to dispute the acts of ownership not opposite his own land; but the ground on which such acts are admissible is not the acquiescence of any party: they are admissible of themselves proprio vigore, for they tend to prove that he who does them is the owner of the soil; though if they are done in the absence of all persons interested to dispute them, they are of less weight. That observation applies only to the effect of the evidence. Applying that reasoning to the present case, surely the plaintiff, who claims the whole bed of the river, is entitled to show the taking of stones, not only on the spot in question, but all along the bed of the river, which he claims as being his property; and he has a right to have that submitted to the jury. The same observation applies to the fence and the banks of the river. What weight the jury may attach to it, is another question. The principle is the same as that which is laid down in Doe v. Kemp."-pp. 331, 332.

(g) Taylor v. 576, S. C.

Parry, 1 M. & G. 604, 615, per Tindal, C. J.; 1 Scott, N. R. (h) Doe v. Kemp, 7 Bing. 336, per Bosanquet, J.; ante, § 21.

240 COLLATERAL FACTS EXCLUDED IN CRIMINAL CASES.

whether such an unity of character exists between the spot in dispute, and the parcel of land over which acts of ownership have been exercised, as to lead to the fair inference that both are subject to the same rights, and constitute in fact but parts of an entire property. If no such inference can be raised, evidence of acts done beyond the limits of the locus in quo will be inadmissible. Thus, where it was attempted to connect parcels of waste land with each other, merely by showing that they all lay within the same manor, and between inclosures and public roads, it was held that evidence of acts of ownership over some of these lands was inadmissible to prove title to the others (i).

§ 245. This rule, limited in the manner above stated, is founded on common sense and common justice, and applies with even greater force to criminal than to civil proceedings; for one of the chief objects of an indictment being, to afford distinct information to the prisoner of the specific charge which is about to be brought against him, the admission of any evidence of facts unconnected with that charge, would be clearly open to the serious objection of taking the prisoner by surprisc. No man should be bound at the peril of life or liberty, fortune or reputation, to answer at once and unprepared for every action of his life. Few even of the best of men would choose to submit to such an ordeal (). If, therefore, on an indictment for burglariously entering a house on a certain

(i) Doe v. Kemp, 2 Bing. N. C. 102. Lord Denman, in giving judgment, observes :-" If the lord has a right to one piece of waste land, 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 the 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 private 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 respect to those parcels, which, from their local situation, may be deemed parts 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."-pp. 107, 108. See also Tyrwhitt v. Wynne, 2 B. & A. 554; Hollis v. Goldfinch, 1 B. & C. 218, 219, per Bayley, J. (j) Foster, 246.

WHAT COLLATERAL FACTS ADMISSIBLE.

241

day and stealing goods therein, the prosecutor fail in proving that the entry was by night, or that any larceny was on that occasion committed, he cannot abandon the charge of burglary, and then proceed to show that the prisoner stole some of the articles mentioned in the indictment on a previous occasion; because, though time is not usually a material allegation, yet the prisoner, having been led to suppose that he was to meet a charge of burglary, cannot be expected to come prepared to prove his innocence with respect to a distinct offence, committed, if at all, at a different time (k). So, an admission by the prisoner, that he has, at another time, committed an offence, similar to that with which he is charged, and that he has a tendency to perpetrate such crimes, cannot be received (); and, in treason, no overt act amounting to a distinct independent charge, though falling under the same head of treason, can be given in evidence, unless it be either expressly laid in the indictment, or be direct proof of any of the overt acts which are laid (m). Thus, on an indictment for adhering to the King's enemies on the high sea, where the overt act laid was the prisoner's cruising on the King's subjects in a vessel called the Loyal Clencarty, evidence that he had some time before cut away the custom-house barge, and gone a cruising in her, was rejected (n).

§ 246. But when felonies are so connected together as to form part of one entire transaction, evidence of one may be given to show the character of the other (o). Thus, where a shopboy was indicted for robbing his mistress of six shillings, and it was proved that on one occasion, when the till contained some marked silver and other money amounting in all to 12s. 6d., the prisoner went to it, and it was afterwards found to contain 11s. 6d. only, the prosecutrix was allowed to show that, on subsequent examinations of the till, the money was perceived to have gradually diminished, and

(k) R. v. Vandercomb, 2 Lea. 708; East, P. C. 519, S. C.

(7) R. v. Cole, 1 Ph. Ev. 477, by all the judges.

(m) 7 Will. 3, c. 3, § 8, as explained by Sir M. Foster, in his work on Crown Law, p. 245; citing Ambrose Rookwood's case, 13 How. St. Tr. 139; Lowick's case, id. 267; Layer's case, 16 id. 93; Deacon's case, 18 id. 365; Foster, 9, S. C.; and Wedderburne's case, 18 id. 425; Foster, 22, S. C.

(n) Vaughan's case, 13 How. St. Tr. 485; Foster, 246.

(0) R. v. Ellis, 6 B. & C. 147, 148, per Bayley, J.

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242

DOCTRINE OF ELECTION.

that, on the prisoner being searched, 88. of the marked money was found on his person; for, although each taking was a separate felony, they were all so connected together, as mutually to illustrate and prove each other (p). So, where a man committed three burglaries in one night, and left at one of the houses property taken from another, the three felonies were considered so connected, that the Court heard the history of them all (g); and the same course was adopted where the prisoner was charged on three indictments for firing three stacks belonging to separate parties, and it appeared that the stacks, being within sight of each other, were fired about the same time (r).

§ 247. In immediate connection with this subject, though not strictly a question of evidence, may be noticed the doctrine of election. In point of law, no objection can be raised, either on demurrer or in arrest of judgment, though the defendant or defendants be charged in different counts of an indictment with different offences of the same kind (s). Indeed, on the face of the record, every count purports to be for a separate offence (t), and, in misdemeanors, it is the daily practice to receive evidence of several libels, several assaults, several acts of fraud, and the like, upon the same indictment (u). In cases of felony, however, this rule has, from motives of humanity, been considerably modified; for, as an indictment containing several distinct charges is calculated to embarrass a prisoner in his defence, the judges, in the exercise of a sound discretion, are accustomed to quash indictments so framed, whenever it appears, before the prisoner has pleaded and the jury are charged, that the inquiry is to include separate crimes. When

(p) R. v. Ellis, 6 B. & C. 145.

(9) Cited by Lord Ellenborough in R. v. Wylie, 1 N. R. 94; 2 Lea. 985, S. C.; R. v. Stonyer, 2 Russ. C. & M. 775, per Wightman, J. See also Alison, Cr. L. 313, 314, and Wills Circum. Ev. 68–71, for remarkable cases of a similar nature, which occurred in Scotland.

(r) R. v. Long, 6 C. & P. 179, per Gurney, B.

(8) R. v. Kingston, 8 East, 41; R. v. Jones, 2 Camp. 132, per Lord Ellenborough. As to election in civil cases, see Howard v. Newton, 2 M. & Rob. 509. (t) Young v. R., 3 T. R. 106, per Buller, J.; 1 Lea. 511, S. C.

(u) R. v. Jones, 2 Camp. 132, per Lord Ellenborough; R. v. Levy, 2 Stark. R. 458. See also R. v. Finacane, 5 C. & P. 551; R. v. Collier, id. 160.