CHAPTER II.

OF THE SUBSTANCE OF THE ISSUE.

[*§ 56. Sufficient to prove substance of issue, unless in matters of description. 57. How far an allegation is descriptive, depends upon its form and subject-matter 58. Allegations as to contracts, prescriptions, and character, held descriptive. 59. Traverse, modo et formâ only puts in issue the substance of the averments. 60. Allegation, with or without videlicet, will not generally affect the proof, but sometimes it will.

61. Allegations of time, place, quantity, quality, value, and in aggravation of dam ages, not material to be strictly proved, unless descriptive.

62. In local actions, place material, and so of the kind, and boundaries, of land. 63. Variance consists in a departure from legal proof.

64. Circumstantial averment not required to be proved, unless requisite to identity. 65. The same latitude in proving only the substance of the issue, in criminal as

in civil cases.

66. Slight variances in description of contracts often material.

67. Distinction between redundancy of allegation, and of proof.

68. Consideration must be laid fully, and proved as laid.

69. Description of deeds must be accurate; may be by import; on oyer must be precisely accurate.

70. Records, as inducement, must be substantially proved; but strictly, if it be the ground of action.

71. Prescriptive grants and rights must be strictly proved.

72. Less strictness required in proof of prescriptions upon which the action is founded. Excess of proof will not vitiate.

73. Most questions of variances may be relieved by amendment.]

§ 56. A SECOND RULE, which governs in the production of evidence, is that it is sufficient, if the substance of the issue be proved. In the application of this rule, a distinction is made between allegations of matter of substance, and allegations of matter of essential description. The former may be substantially proved; but the latter must be proved with a degree of strictness, extending in some cases even to literal precision. No allegation, descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected.1 Thus in an action of malicious prosecution,

1 Stark. Evid. 373; Purcell v. Macna- 456; Ferguson v. Harwood, Cranch, mara, 9 East, 160; Stoddard v. Palmer, 3 408, 418 [post, vol. 2, § 2-11]. B. & C. 4; Turner v. Eyles, 3 B. & P.

the plaintiff alleges that he was acquitted of the charge on a certain day; here the substance of the allegation is the acquittal, and it is sufficient, if this fact be proved on any day, the time not being material. But if the allegation be, that the defendant drew a bill of exchange of a certain date and tenor, here every allegation, even to the precise day of the date, is descriptive of the bill, and essential to its identity, and must be literally proved.1 So also, as we have already seen, in justifying the taking of cattle damagefeasant, because it was upon the close of the defendant, the allegation of a general freehold title is sufficient; but if the party states, that he was seised of the close in fee, and it be traversed, the precise estate, which he has set forth, becomes an essentially descriptive allegation, and must be proved as alleged. In this case the essential and non-essential parts of the statement are so connected, as to be incapable of separation, and therefore both are alike material.2

§ 57. Whether an allegation is or is not so essentially descriptive, is a point to be determined by the judge in the case before him; and it depends so much on the particular circumstances, that it is difficult to lay down any precise rules by which it can in all cases be determined. It may depend, in the first place, on the nature of the averment itself, and the subject to which it is applied. But secondly, some averments the law pronounces formal, which otherwise, would, on general principles, be descriptive. And thirdly, the question, whether others are descriptive or not, will often depend on the technical manner in which they are framed.

§ 58. In the first place, it may be observed, that any allegation, which narrows and limits that, which is essential, is necessarily descriptive. Thus, in contracts, libels in writing, and written instruments in general, every part operates by way of description of the whole. In these cases, therefore, allegations of names, sums, magnitudes, dates, durations, terms, and the like, being essential to the identity of the writing set forth, must, in general, be

13 B. & C. 4, 5; Glassford on Evid. 309.

2 Stephen on Pleading, 261, 262, 419; Turner v. Eyles, 3 B. & P. 456; 2 Saund. 206 a, n. 22; Sir Francis Leke's case, Dyer, 364 b. Perhaps the distinction taken by Lord Ellenborough, in Purcell v. Macnamara, and recognized in Stoddard

v. Palmer, 3 B. & C. 4, will, on closer examination, result merely in this, that matters of description are matters of substance, when they go to the identity of any thing material to the action. Thus the rule will stand, as originally stated, that the substance, and this alone, must be proved.

precisely proved.1 Nor is it material whether the action be founded in contract or in tort; for in either case, if a contract be set forth, every allegation is descriptive. Thus, in an action on the case for deceit in the sale of lambs by two defendants, jointly, proof of sale and warranty by one only, as his separate property, was held to be a fatal variance.2 So, also, if the contract described be absolute, but the contract proved be conditional, or in the alternative, it is fatal. The consideration is equally descriptive and material, and must be strictly proved as alleged. Prescriptions, also, being founded in grants presumed to be lost from lapse of time, must be strictly proved as laid; for every allegation, as it is supposed to set forth that which was originally contained in a deed, is of course descriptive of the instrument, and essential to the identity of the grant.5 An allegation of the character in which the plaintiff sues, or of his title to damages, though sometimes superfluous, is generally descriptive in its nature, and requires proof.6

§ 59. Secondly, as to those averments which the law pronounces formal, though, on general principles, they seem to be descriptive and essential; these are rather to be regarded as exceptions to the rule already stated, and are allowed for the sake of convenience. Therefore, though it is the nature of a traverse to deny the allegation in the manner and form in which it is made, and, consequently to put the party to prove it to be true in the manner and form, as well as in general effect; yet where the issue goes to the point of the action, these words, modo et forma, are but words of form.8 Thus, in trover, for example, the allegation, that the plaintiff lost the goods and that the defendant found them is regarded as

1 Bristow v. Wright, Doug. 665, 667; Churchill v. Wilkins, 1 T. R. 447; 1 Stark. Evid. 386, 388.

2 Weal v. King, et al. 12 East, 452. 3 Penny v. Porter, 2 East, 2; Lopez v. De Tastet, 1 B. & B. 538; Higgins v. Dixon, 10 Jur. 376; Hilt v. Campbell, 6 Greenl. 109; Stone v. Knowlton, 3 Wend. 374. See also Saxton v. Johnson, 10 Johns. 581; Snell v. Moses, 1 Johns. 96; Crawford v. Morrell, 8 Jolins. 153; Bay. lies v. Fettyplace, 7 Mass. 325; Robbins v. Otis, 1 Pick. 368; Harris v. Raynor, 8 Pick. 541; White v. Wilson, 2 Bos. & Pul. 116; Whitaker v. Smith, 4 Pick. 83; Lower v. Winters, 7 Cowen, 263; Alexander v. Harris, 4 Cranch, 299.

• Sallow v. Beaumont, 2 B. & Ald. 765;

Robertson v. Lynch, 18 Johns. 451; [post, § 68].

5 Morewood v. Wood, 4 T. R. 157; Rogers v. Allen, 1 Campb. 309, 314, 315, note (a). But proof of a more ample right than is alleged, will be regarded as mere redundancy. Johnson v. Thoroughgood, Hob. 64; Bushwood v. Pond, Cro. El. 722; Bailiffs of Tewksbury v. Bricknell, 1 Taunt. 142; Burges v. Steer, 1 Show, 347; 4 Mod. 89, s. c. [post, § 71].

61 Stark. Evid. 390; Moises v. Thornton, 8 T. R. 303, 308; Berryman v. Wise, 4 T. R. 366.

7 Stephen on Pleading, 213.

8 Trials per pais, 308 (9th ed.); Co. Lit. 281 b.

purely formal, requiring no proof; for the gist of the action is the conversion. So, in indictments for homicide, though the death is alleged to have been caused by a particular instrument, this averment is but formal; and it is sufficient if the manner of death agree in substance with that which is charged, though the instrument be different; as, if a wound alleged to have been given with a sword, be proved to have been inflicted with an axe. But, where the traverse is of a collateral point in pleading, there the words, modo et forma, go to the substance of the issue, and are descriptive, and strict proof is required; as, if a feoffment is alleged by deed, which is traversed modo et forma, evidence of a feoffment without deed will not suffice. Yet, if in issues upon a collateral point, where the affirmative is on the defendant, partial and defective proof on his part should show that the plaintiff had no cause of action, as clearly as strict and full proof would do, it is sufficient.

§ 60. Thirdly, as to those averments, whose character, as being descriptive or not, depends on the manner in which they are stated. Every allegation, essential to the issue, must, as we have seen, be proved, in whatever form it be stated; and things immaterial in their nature to the question at issue may be omitted in the proof, though alleged with the utmost explicitness and formality. There is, however, a middle class of circumstances, not essential in their nature, which may become so by being inseparably connected with the essential allegations. These must be proved as laid, unless they are stated under a videlicet; the office of which is to mark, that the party does not undertake to prove the precise circumstances alleged; and in such cases he is ordinarily not holden to prove them. Thus in a declaration upon a bill of exchange, the date is in its nature essential to the identity of the bill, and must be precisely proved, though the form of allegation were, "of a certain date, to wit," such a date. On the other hand, in the case before cited, of an action for maliciously prosecuting the plaintiff for a crime, whereof he was acquitted on a certain day; the time of acquittal is not essential to the charge,

1 2 Russell on Crimes, 711; 1 East, P. C. 341.

2 Bull. N. P. 301; Co. Lit. 281, B. Whether virtute cujus, in a sheriff's plea in justification, is traversable, and in what cases, is discussed in Lucas v. Nockells, 7 Bligh, N. s. 140.

8 Ibid.; 2 Stark. Ev. 394.

4 Stephen on Pleading, 309; 1 Chitty on Pl. 261, 262, 348 (6th ed.); Stukeley v. Butler, Hob. 168, 172; 2 Saund. 291, note (1); Gleason v. McVickar, 7 Cowen, 42

and need not be proved, though it be directly and expressly alleged.1 But where, in an action for breach of warranty upon the sale of personal chattels, the plaintiff set forth the price paid for the goods, without a videlicet, he was held bound to prove the exact sum alleged, it being rendered material by the form of allegation; 2 though, had the averment been, that the sale was for a valuable consideration, to wit, for so much, it would have been otherwise. A videlicet will not avoid a variance, or dispense with exact proof, in an allegation of material matter; nor will the omission of it always create the necessity of proving, precisely as stated, matter which would not otherwise require exact proof. But a party may, in certain cases, impose upon himself the necessity of proving precisely what is stated, if not stated under a videlicet.8

§ 61. But, in general, the allegations of time, place, quantity, quality, and value, when not descriptive of the identity of the subject of the action, will be found immaterial, and need not be proved strictly as alleged. Thus, in trespass to the person, the material fact is the assault and battery; the time and place not being material, unless made so by the nature of the justification, and the manner of pleading. And, in an action on a policy of

1 Supra, § 56; Purcell v. Macnamara, 9 East, 160; Gwinnett v. Phillips, 3 T. R. 643; Vail v. Lewis, 4 Johns. 450.

2 Durston v. Tuthan, cited in 8 T. R. 67; Symmons v. Knox, 8 T. R. 65; Arnfield v. Bates, 3 M. & S. 178; Sir Francis Leke's case, Dyer, 364 b; Stephen on Pleading, 419, 420; 1 Chitty on Pl. 340 (6th ed).

8 Crispin v. Williamson, 8 Taunt. 107, 112; Attorney-Gen. v. Jeffreys, M'Cl. R. 277; 2 B. & C. 3, 4; 1 Chitty on Plead. 348 a; Grimwood v. Barrett, 6 T. R. 460, 463; Bristow v. Wright, Doug. 667, 668. These terms, "immaterial," and "impertinent," though formerly applied to two classes of averments, are now treated as synonymous; 3 D. & R. 209; the more accurate distinction being between these, and unnecessary allegations. Immaterial or impertinent averments are those which need neither be alleged nor proved if alleged. Unnecessary averments consist of matters which need not be alleged; but, being alleged, must be proved. Thus, in an action of assumpsit upon a warranty on the sale of goods, an allegation of deceit on the part of the seller is impertinent, and need not be proved. Williamson v. Allison, 2 East, 416;

VOL. I.

Pan

7

ton v. Holland, 17 Johns. 92; Twiss v. Baldwin, 9 Conn. 292. So, where the action was for an injury to the plaintiff's re versionary interest in land, and it was alleged, that the close at the time of the injury, was, and " continually from thence hitherto hath been, and still is," in the possession of one J. V., this latter part of the averment was held superfluous, and not necessary to be proved. Vowels v. Miller, 3 Taunt. 137. But if, in an action by a lessor against his tenant, for negli gently keeping his fire, a demise for seven years be alleged, and the proof be of a lease at will only, it will be a fatal variance; for though it would have sufficed to have alleged the tenancy generally, yet having unnecessarily qualified it, by stating the precise term, it must be proved as laid. Cudlip v. Rundle, Carth. 202. So, in debt against an officer for extorting illegal fees on a fieri facias, though it is suf ficient to allege the issuing of the writ of fieri facias, yet if the plaintiff also unnecessarily allege the judgment on which it was founded, he must prove it, having made it descriptive of the principal thing. Savage v. Smith, 2 W. Bl. 1101; Bristow v. Wright, Doug. 668; Gould's Pl. 160165; Draper v. Garratt, 2 B. & C. 2.