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imported into the New Game Act, 1 & 2 Will. 4, c. 32, s. 42, which enacts that, "it shall not be necessary, in any proceeding under that act, to negative by evidence any certificate, licence, &c., or other matter of exception or defence; but the party seeking to avail himself of such certificate shall be bound to prove the same."

In an action for goods sold and delivered, with a plea of infancy, the onus probandi lies upon the defendant; as the law presumes that, when a man contracts, he is of proper age to contract, until the contrary be shown.1 So negligence in carriers,2 legitimacy of children, born in wedlock,3 the duration of life, insanity, are all issues in which the onus probandi is regulated by the legal presumption as to the fact: and the party who disputes the truth of the presumption in the particular case is bound to show that it does not apply.5

Questions as to the right to begin in the superior courts, which were formerly regulated in a great measure by the pleading rules of 3 & 4 Will. 4, are now regulated by the new pleading rules of Hilary Term, 16 & 17 Vict.

It is the duty of the judge to determine which party has the right to begin; but an incorrect ruling by him will be no ground for a new trial, unless it appear to have caused substantial injustice.6

1 Hartley v. Wharton, 11 A. & E. 934.

2 Marsh v. Horne, 5 B. & C. 322.

3 2 Selw. N. P. 709.

Nepean v. Doe, 2 Sm. L. C.

5 See ante, p. 41, chapter on Presumptive Evidence. • Brandford v. Freeman, 5 Ex. 734.

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CHAPTER XVIII.

ON THE SUBSTANCE OF THE ISSUE.

LI. It is enough if only the substance of the issue be proved.

In other words, a party will have sufficiently proved his case if he establish substantially his allegations; and he will not be prejudiced by failing to prove matter which is unnecessary to support his claim, and which may therefore be disregarded as surplusage. Generally, allegations which are introductory and explanatory, may be treated as matter of mere inducement, and consequently as surplusage.1 But it is not every unnecessary allegation which may be treated as surplusage; for irrelevant matter may be so connected and incorporated with essential matter, as to render them legally inseparable; and where this is so, the irrelevant matter must be proved. This doctrine is subtle and unsettled; but it will now be considered.

If words be inserted in pleadings which are without meaning, or which have been introduced by mistake, they will be struck out as surplusage at common law.2 So, in tort involving a claim for a sum certain, it is immaterial that the sum due, as proved, is less than the sum claimed.3 But where a contract is stated in a declaration, unless it be truly stated, the plaintiff cannot recover. And so, if a plaintiff profess to set out a title, he must set it out correctly. It is also held, that a

1 Ricketts v. Salway, 3 B. & Ald. 323. 2 King v. Pippett, 1 T. R. 235.

Gwinnet v. Phillips, 3 T. R. 643.

4 Lord Kenyon, 3 T. R. 643.

contract is entire in its nature, and must be proved as laid. These principles will be best illustrated by the leading case of Bristow v. Wright.2

That was an action by a landlord against sheriffs, for taking in execution the goods of his tenant without satisfying him for a year's rent which was due; and the declaration stated a demise for a year on reservation of a rent payable quarterly, but at the trial there was no evidence of the times of payment. It was urged that the contract was not the gist of the action, and that the plaintiff was entitled to retain a verdict, on having shown, as he had, that a year's rent was in arrear. But the court directed a judgment of nonsuit; and Lord Mansfield, in delivering it, although he had thought the plaintiff's case sufficiently established on trial, expressly abandoned that opinion. He said :-"I am convinced that it is better for the sake of justice that the strict rule should in this case prevail. I have always thought, and often said, that the rules of pleading are founded on good sense. Their objects are precision and brevity. It is easy for a party to state his cause of action. If it is founded on a deed, he need not set forth more than that part which is necessary to entitle him to It certainly was not necessary to allege this part of the lease that relates to the time of payment, in order to maintain the action. But since it has been alleged, it was necessary to prove it. The distinction is between that which may be rejected as surplusage, and what cannot. When the declaration contains impertinent matter, foreign to the cause, and which the master on a reference to him would strike out (irrelevant covenants for instance), that will be rejected by the court, and need not be proved. But if the very ground of the action is misstated, as where you undertake to recite that part of a deed on which the action is founded, and it is misrecited, that will be fatal. For then, the case declared on is different from that which is proved;

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1 Buller, J., 3 T. R. 643.

2 Dougl. 665, 1 Sm. L. C. 223.

and you must recover secundum probata et allegata. In the present case the plaintiff undertakes to state the lease, and states it falsely." This doctrine has been further stated by Lord Ellenborough ;-"With respect to what averments are necessary to be proved, I take the rule to be that, if the whole of an averment may be struck out without destroying the plaintiff's right of action, it is not necessary to prove it; but otherwise if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, though the averment may be more particular than it need have been, the whole must be proved or the plaintiff cannot recover.” 1

Accordingly, where an averment can be got rid of without injury to the pleadings, and where it can be treated as merely a statement involving needless particularity it may be struck out in civil or criminal pleadings.2 Thus, if a plaintiff, declaring on a warranty, allege a scienter, as in tort, where the plaintiff alleged that the defendant knew the goods sold to be unfit for sale, it is held that the warranty alone entitles the plaintiff to recover, without proof that the defendant knew the goods to be unfit, &c.3 So, in tort against a surgeon for mistreating the plaintiff, it has been held unnecessary to prove an averment that the defendant was employed by the plaintiff, on evidence that the plaintiff submitted to the defendant's treatment.4 But in contract it would be necessary, as already stated, to prove the averment.5

A plea of tender is proved sufficiently by evidence of tender of a larger sum than that mentioned in the plea; but if the plaintiff reply that, after the cause of action accrued, and before the tender, he demanded the sum, a demand of the precise sum tendered must

1 Williamson v. Allison, 2 East, 452.

2 Coleridge, J., Shearm v. Burnard, 10 A. & E. 596.

3 Williamson v. Allison, 2 East, 446.

• Gladwell v. Steggel, 5 Bing. N. C. 733.

5 Supra, 173.

6 Dean v. James, 4 B. & Ad. 546.

be proved. So, a plea of payment in accord and satisfaction is proved by proof of payment of a sum sufficient to cover the plaintiff's real demand.2

In slander it is enough to prove the material words on the record: and where there are several actionable words it is enough to prove some of them.3 But it is not enough to prove merely equivalent words.4

In case for disturbing the plaintiff's commonable rights by putting cattle on the land, the defendant pleaded common appurtenant, and the plaintiff replied that all the said cattle were not commonable, &c. It was held that the plea was supported by proof that some of the defendant's cattle on the land were commonable, and that the plaintiff could not insist on a surcharge.5 But where, in trespass to a close, the defendant pleaded a licence to erect and maintain a wall on the locus in quo, and proved a licence to erect but not to maintain, the verdict was directed against him. And where to an action on a bill it was pleaded that it was accepted for hops, which were to be delivered according to sample, and that plaintiff had not delivered them according to sample, nor any hops whatever, the words in italics were struck out.7

It will be seen from the above cases that the doctrine as to what is, or what is not, of the substance of the issue is still obscure and unsatisfactory; but the large powers of amendment which judges now have, and which will be considered in the next chapter, render the question less important than it was. But since amendments are conceded ex gratiâ and not ex debito justitiæ, it still deserves attention.

The materiality of averments is also subject to the qualifications belonging to a scilicet-the "to wit" of

1 Rivers v. Griffiths, 5 B. & Ald. 630.

2 Falcon v. Benn, 2 Q. B. 314.

3 Compagnol v. Martin, 2 W. Bl. 790. 4 Lawrence, J., 2 East, 434.

Brown v. Jenkins, 6 A. & E. 911. • Alexander v. Bonin, 4 Bing. N. C. 799. Wells v. Hopkins, 5 M. & W. 7.

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