CHAPTER III. HOW MUCH MUST BE PROVED. § 271. THE just and reasonable principle that tribunals The substance should look to the meaning rather than to the language of the pleadings, or other statements, of litigant parties, is not confined to the burden of proof, but extends to the proof itself. The rule of law from the earliest times has 'been, that it is sufficient if the issues raised are proved in substance (a). This is in truth only a branch of a still more general principle which runs through every rational system of jurisprudence.-" Lex rejecit superflua (b),” "Superflua non nocent (c)," "Utile per inutile non vitiatur (d)." issue, &c. need be proved. only of the statements § 272. The most obvious application of this is in the Averments and case of averments and statements wholly immaterial. wholly immateAll averments which might be expunged from the record rial may be diswithout affecting the validity of the pleading in which regarded. they appear, may be disregarded at the trial; for such averments only encumber the record, and the proof of them would be as irrelevant as themselves (e). And there (a) Litt. ss. 484, 485; Co. Litt, 227 a, 281 b, 282 a; Hob. 73, 81; 2 Rol. 41—2; Trials per Pais, 140, Ed. 1665; 1 Phill. Ev. 498, 9th Ed.; Id. 558, 10th Ed.; 1 Stark. Ev. 431, 3rd Ed.; Id. 625, 4th Ed. For earlier authorities see Part 1, ch. 2, § 110, note (h). (b) Jenk. Cent. 3, cas. 72. (c) Jenk. Cent. 4, cas. 74; Cent. 8, cas. 41. (d) Co. Litt. 3 a, 227 a, 379 a; 3 Co. 10 a; Hob. 171; 2 Saund. 369; 1 Stark. Ev. 432, (e) 1 Phill. Ev. 498, 9th Ed.; But not when they affect what is material. The tribunal should look at the real question between the parties. Illustrations from old authorities. can be no doubt the same principle applies to allegations and statements made otherwise than in formal pleadings. § 273. But matter which need not have been stated may be injurious, or even fatal, when it affects that which is material. A party may allege or prove things which he was not bound to allege or prove, but which, when alleged or proved, put his case out of court (f). Where, before the 15 & 16 Vict. c. 76, s. 64, a party in giving express colour stated a true title in his adversary instead of a defective one, the latter was entitled to judgment on the pleader's own shewing (g). It is accordingly a general rule that averments, though unnecessarily introduced, cannot be rejected when they operate by way of description or limitation of essentials (h). "Let an averment," says an eminent authority on evidence (i), “be ever so superfluous in its own nature, it can never be considered to be immaterial when it constitutes the identity of that which is material." § 274. This rule does not merely absolve from proof of irrelevant matter. It has a far more general application, and means that the tribunal by which a cause is tried should examine the record or allegations of the contending parties, or of their advocates, as the case may be, with a legal eye, in order to ascertain the real question raised between them. In illustration we shall first cite some rather old authorities; both because they are very applicable, and also to shew that the rule under consideration is not an arbitrary invention of modern times a light in which it is too common to view all the rules of evidence. (ƒ) 1 Edw. V., 3, pl. 5; Keilw. 165 b, pl. 2; Plowd. 32, 84; Finch's Law, 65. See the note to Bristow v. Wright, 1 Smith, Lead. Cas. 324; and Lush v. Russell, 5 Exch. 203. (g) Steph. Plead. 245, 5th Ed. (h) 1 Stark. Ev. 443, 3rd Ed.; Ph. & Am. Ev. 852; 1 Phill. Ev. 567, 10th Ed. (i) 1 Stark. Ev. 443, 3rd Ed. § 275. "If," says Littleton (k), “a man bring a writ of entry in casu proviso, of the alienation made by the tenant in dower to his disinheritance, and counteth of the alienation made in fee, and the tenant saith, that he did not alien in manner as the demandant hath declared, and upon this they are at issue, and it is found by verdict that the tenant aliened in tail, or for term of another man's life, the demandant shall recover: yet the alienation was not in manner as the demandant hath declared." "Also (1), if there be lord and tenant, and the tenant hold of the lord by fealty only, and the lord distrain the tenant for rent, and the tenant bringeth a writ of trespass against his lord for his cattle so taken, and the lord plead that the tenant holds of him by fealty and certain rent, and for the rent behind he came to distrain, &c. and demand judgment of the writ brought against him, quare vi et armis, &c. and the other saith that he doth not hold of him in the manner as he suppose, and upon this they are at issue, and it is found by verdict that he holdeth of him by fealty only; in this case the writ shall abate, and yet he doth not hold of him in the manner as the lord hath said. For the matter of the issue is, whether the tenant holdeth of him or no; for if he holdeth of him, although that the lord distrain the tenant for other services which he ought not to have, yet such writ of trespass quare vi et armis, &c. doth not lie against the lord, but shall abate." "Also (m) in a writ of trespass for battery, or for goods carried away, if the defendant plead not guilty, in manner as the plaintiff suppose, and it is found that the defendant is guilty in another town, or at another day than the plaintiff supposes, yet he shall recover. And so in many other cases these words, viz. in manner as the demandant or the plaintiff hath supposed, do not make any matter of substance of the issue; &c." In illustration of Other instances. Rule in criminal cases. this the two following cases, supported by the authority of an early Year Book, are given by Sir E. Coke. "In assize of darreine presentment, if the plaintiff allege the avoidance of the church by privation, and the jury find the voydance by death, the plaintiff shall have judgment: for the manner of voydance is not the title of the plaintiff, but the voydance is the matter(n). If a guardian of an hospital bring an assize against the ordinary, he pleadeth that in his visitation he deprived him as ordinary, whereupon issue is taken, and it is found that he deprived him as patron, the ordinary shall have judgment, for the deprivation is the substance of the matter (o)." § 276. The books contain many other instances of the effect of this rule (p). Thus, in an action on a bond, a plea of solvit ad diem is supported by proof of payment ante diem (g), for the payment so as to save the penalty is the matter in issue. In an action against a tenant for cutting down a certain number of trees, proof that the defendant cut down a less number maintains the issue (r). Although in actions on contracts the contract must be correctly stated and proved as laid, yet every day's practice shews that in actions on simple contract, as also in actions of tort, the plaintiff may recover for a less sum than that claimed in the declaration. And in actions of tort generally it is sufficient to prove a substantial portion of the trespasses or grievances complained of, &c. § 277. The rule in question is not confined to civil (n) Co. Litt. 282 a; 6 Edw. III. 41 b, pl. 22. (0) Co Litt. 282 a; 8 Edw. III. 70, pl. 37; 8 Ass. pl. 29. (p) For other instances to be found in the old books, see 2 Rol. Abr. 681, Evidence (D). (9) Ph. & Am. Ev. 841; 1 Phill. Ev. 559, 10th Ed. (r) Co. Litt. 282 a; Ph. & Am. Ev. 847. cases (s). It is an universal principle which runs through the whole criminal law, that it is sufficient to prove so much of an indictment as charges the accused with a substantive crime therein specified (t), i. e. a substantive crime of the same degree as that charged in the indictment (u). And what averments in an indictment are so separable and divisible from the rest that want of proof of those averments shall not vitiate the whole, forms an important head of practice. On an indictment for burglary and stealing goods, the averments of breaking and stealing are divisible, so that if the burglary be not proved the accused may be convicted of larceny (x); as he also may on a charge of robbery, where it appears that the taking was not with violence (y). And on an indictment for murder the accused may be (and often is) convicted of manslaughter-for the substance of the offence charged is the felonious slaying, the malice aforethought being only an aggravation (~). By several modern statutes also, a like principle has been extended to various offences not actually charged in an indictment. Thus, by the 9 Geo. IV. c. 31, s. 14, a woman 9 Geo. IV. indicted for child murder, may, though acquitted of the c. 31. murder, be convicted of the misdemeanour of concealing the birth of the child. By the 7 Will. IV. & 1 Vict. 7 Will. IV. & c. 85, s. 11, it was enacted, that on the trial of any person for certain offences mentioned in that statute, or for any felony whatever, where the crime charged should include an assault against the person, it should be lawful for the jury to acquit of the felony and find a verdict of guilty of assault, &c. This statute has been repealed by 14 & 15 Vict. 14 & 15 Vict. c. 100, which contains several very important provisions on this subject. (s) Co. Litt. 282 a; Phill. & Am. Evid. 849; 1 Phill. Evid. 562, 10th Ed. () 1 Phill. Ev. 562, 10th Ed.; R. v. Hunt, 2 Campb. 583. (u) 1 Smith, Lead. Cas. 333. (x) 1 Hale, P. C. 559. case. (z) Bro. Abr. Corone, pl. 221, Co. Litt. 282 a; Gilb. Evid. 269, 4th Ed. 1 Vict c. 85. c. 100. |