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![handle is hein.slavery/ssactsengr0063 and id is 1 raw text is: FORBES -V. COCEIRANE
Best J. The question appears so clear, that I certainly should abstain from saying
any thing upon it, were it not for the importance of all matters touching the law of
evidence. At first I entertained a doubt, whether the objection raised could be taken
advantage of by bill of exceptions. The respective offices of bills of exceptions and
demurrers to evidence have not been very distinctly understood, as appears by the
judgment of Eyre C.J. in Gibson v. Hunter (2 H. BI. 187). It appears to me now,
that this objection is open on a bill of exceptions, but that the party making it should
not be placed in a better situation than if he had demurred to the evidence. Bills of
exceptions were not known to the common law, but were introduced by the 13 Edw. 1,
c. 31. Until that time, if the Judge decided wrongly upon any point of law, the
suitor was without remedy. The statute was made to relieve parties from that hard-
ship, it should therefore receive a liberal exposition ; for which reason, although it
appears to have been applicable originally to decisions upon pleadings only, (which at
that time were carried on ore tenus,) yet I think it may fairly be extended to such a
case as the present. In the 2 Inst. p. 427, Lord Coke says it extends to cases where
any material evidence given to any jury is by the Court overruled. I think we ought
to go further, and say, that where there is not evidence to prove the issue to be tried,
and the Judge tells the jury there is, that is [446] ground for tendering a bill of
exceptions. But it may be asked what then is the office of a demurrer to evidence?
It is this. If the party tenders a bill of exceptions, the evidence must be left to the
jury ; but if the party does not wish that, he may withdraw it from their consideration
by a demurrer. If, however, he does not demur, he must not be placed in a better
situation than if he did. Now, by a demurrer to evidence, all the facts of which
there is any evidence are admitted, and all conclusions which can fairly and logically
be deduced from those facts. Is there then any fact stated upon this record from
which the jury might presume that the bill in question was indorsed by E. S.,
the payee, supposing such fact to have been properly proved? If there be any one
such fact, all question is at an end. Now I think that there is one fact shewing that
the indorser was E. S., putting all the other evidence out of the case, and admitting
that the letter of M'Donnell and Co. was not evidence (although I concur with my
brother Bayley in thinking that it was properly received). If a man comes to me
having in his possession a letter brought from York, that is prima facie evidence that
be brought it. Now, the person calling himself E. S. at Cadiz, produced there a bill
brought from Lisbon, and which was the property of E. S., that raises a presumption
that he brought it from Lisbon, and from the mere possession, it might be inferred
that he was the owner E. S. Had any proof been given that the bill had been lost,
or improperly obtained from the owner, that would have rebutted the presumption.
There was ample time to procure evidence of that, if the fact were so, but nothing of
the kind was proved. It has been asked, however, whether [447] the possession of
bills by clerks or bankers raises a presumption of ownership ; certainly not, there the
character of the holder rebuts the presumption. There is nothing here to rebut it,
and therefore the proof given becomes cogent evidence. It was also urged, that the
best evidence should always be given. The principle is correct, but the application
wrong. Of every fact, you must have the best evidence that the party has within
his reach, but when one fact is well proved, another may be inferred from it. From
proof that a bill came from London, it may be inferred that the bearer brought it
thence. From one act distinctly proved, a custom may be presumed in the absence
of all conflicting testimony (a). I agree also, that where there are several facts
depending upon each other, if the evidence fails as to one, the whole falls to the
ground. But here, all the facts are independent of each other, and I think the case may
be rested upon the simple fact of the possession of the bill by the person who incorsed
it. That certainly was evidence to be left to the jury, and in the absence of any
thing to rebut the inference arising from that evidence, I think that their finding was
-correct. The judgment pronounced below must therefore be affirmed.
Judgment affirmed.
[448] JOHN FORBES against SIR ALEXANDER INGLIS COCHRANE, KNIGHT, AND SIR
GEORGE COCKBURN, KNIGHT. 1824. Where certain persons, who had been
slaves in a foreign country where slavery was tolerated by law, escaped thence
(a) Roe d. Bennett v. Jeffery, 2 M. & S. 92.
2 B. & C. 446.](ViewImageLocal?handle=hein.slavery/ssactsengr0063&div=1&collection=&method=preview&ext=.png&size=3)