DESCRIPTIVE ALLEGATIONS IN CIVIL CAUSES. 193 Lord Abinger thereupon amended the record, but the Court of Common Pleas were unanimously of opinion that, although the learned judge had the power of authorising an amendment, yet the exercise of such power was, in fact, unnecessary. Chief-Justice Tindal observed, "The consideration for the defendant's promise is the agreement to which reference is made. The plaintiff does not profess to set out the whole of the agreement. There is no variance unless there is an omission of something of a conditional nature, which, if stated, would require an allegation of performance." And Mr. Justice Coltman added, "If the matters omitted had raised a condition precedent, the omission would have constituted a variance; but the matters, the omission of which is complained of, did not raise any condition precedent. They were not matters which the plaintiff was bound to aver, and, if traversed, to prove, in order to support his action; but would have formed the subject of a cross action, if not performed on the part of the plaintiff" (a). It may further be remarked, that, in actions of assumpsit, if any part of the contract proved should vary materially from what is alleged in the pleadings, the variance will be fatal. Thus, where a declaration stated a specific contract for the sale of a dwellinghouse and fixtures, for the residue of a term of years, to commence from a given day, and, to satisfy this allegation, a contract was produced which, on the face of it, showed that it was a sale of a feesimple, or, at least, left it uncertain what was the interest intended to be conveyed, it was held that the plaintiff must be nonsuited (b). So, in an action against a tenant for not repairing premises demised, where the contract as declared upon was, that the plaintiff should let, and the defendant should take, a farm at a certain rent, the plaintiff undertaking to put the premises in repair within twelve months, and the defendant undertaking to keep them in repair after that time, the Court directed a nonsuit, it appearing on the trial that the agreement contained an additional stipulation, that the plaintiff should keep the buildings insured in 6007., and should rebuild in case of fire (c). (a) 1 M. & Gr. 851, 852. (b) Hughes v. Parker, 8 M. & W. 244. (c) Beech v. White, 12 A. & E, 668; 4 P. & D. 399, S. C. 194 EVIDENCE MUST BE CONFINED TO POINTS IN ISSUE. CHAPTER II. OF CONFINING EVIDENCE TO THE POINTS IN ISSUE. § 193. THE second general rule, which governs the production of testimony, is, that the evidence must be confined to the points in issue. This rule is founded upon the consideration that, since these points have been alone selected by the parties in their pleading, as those on which they are mutually willing to rest the fate of the cause (a), any evidence in support of other facts which, not being expressly alleged, must be assumed to have no existence, or not being expressly denied, must be admitted to be true, would be obviously improper. Thus, where to an action of assumpsit the defendant pleaded the statute of limitations, to which there was a replication that he did promise within six years, and issue thereon, the plaintiff was not allowed to prove that the action was grounded on a fraudulent receipt of money by the defendant, and that the fraud was first discovered within six years from the commencement of the suit (b). So, in an action by the indorsee against the drawer of a bill of exchange, where the plea stated that the defendant had endorsed the bill for a special purpose to one Levy, who, in fraud of that purpose, had handed it to one Hunter, and that Hunter had passed it to the plaintiff without any good or valuable consideration, and that the plaintiff was not the bond fide holder, the Court held that, on a replication de injuriâ, the defendant was not at liberty to show that the plaintiff knew of the fraud; that the pleadings put in issue nothing but the fact of a consideration having been given; that the only proper mode of implicating the plaintiff in the alleged fraud by pleading was to aver notice in distinct terms; and that the allegation that the plaintiff was not a bonâ fide holder, was not equivalent to such an averment (c). So, a particular allegation of voluntary waste will not let in evidence of permissive waste (d); and where, in covenant, the breach assigned (a) Steph. Pl. 115. (b) Clark v. Hougham, 2 B. & C. 149. (c) Uther v. Rich, 10 A. & E. 784. NEW RULES OF PLEADING THEIR OBJECTS. 195 was that the defendant had not used the plaintiff's farm in a husbandlike manner, but had committed waste, evidence of bad husbandry, not amounting to waste, was rejected (e). Again, in an action of defamation, where the issues raised by the pleas of justification were whether the plaintiff's scholars were ill fed, badly lodged, and covered with vermin, the defendant's counsel was not permitted to put any question to the witnesses, with the view of showing that the boys were also badly educated (f); and in another action of the same kind, where the defendant had only pleaded the general issue, Lord Ellenborough would not allow the plaintiff to prove that the assertions contained in the libel were false. "There is no plea of justification on the record," said his Lordship, "and, therefore, I can no more hear a falsification on the one side, than a justification on the other" (g). § 194. The cases just cited in illustration of this rule have been selected at hazard; but in order to obtain practical information on this important subject, it may be advisable to examine at some length the new rules of pleading, together with the leading decisions explanatory of their operation. These rules, which have now been promulgated for fourteen years, and are in consequence pretty generally understood, are intended to effect three material objects; first, to make the plaintiff acquainted with the intended defence, and thus to prevent his being taken by surprise at the trial; secondly, to save the expense of collecting unnecessary evidence; and thirdly, to bring legal defences more prominently forward on the face of the record (h). § 195. Such being the general objects of the new rules, the first rule which requires notice in a work on evidence is, that "in all actions by and against assignees of a bankrupt or insolvent, or executors or administrators, or persons authorised by Act of (e) Harris v. Mantle, 3 T. R. 307. (f) Boldron v. Widdows, 1 C. & P. 65, per Abbott, C. J. (g) Stuart v. Lovell, 2 Stark. R. 94; See also Cornwall v. Richardson, Ry. & M. 305, per Abbott, C. J. (h) See Isaac v. Farrer, 1 M. & W. 70, per Lord Abinger; 4 Dowl. 755, S. C.; Barnett v. Glossop, 1 Bing. N. C. 636, 637, per Park and Bosanquet, Js.; 3 Dowl. 625, S. C.; Gutsole v. Mathers, 1 M. & W. 502, 503, per Lord Abinger. 196 EFFECT OF NON ASSUMPSIT IN SPECIAL ACTIONS. Parliament to sue or be sued as nominal parties, the character, in which the plaintiff or defendant is stated on the record to sue or be sued, shall not in any case be considered as in issue, unless specially denied" (¿). This rule takes no special notice of an action brought by husband and wife, but by the old law, the plea of the general issue admits the marriage (j). $ 196. Passing now to pleadings in particular actions, the most practically important question relates to the effect of the plea of non assumpsit ; and here the new rules have determined, that, “ in all actions of assumpsit, except on bills of exchange or promissory notes, this plea shall operate only as a denial in fact of the express contract or promise alleged, or of the matters of fact from which the contract or promise alleged may be implied by law" (k). Such being the general rule, it will be convenient to discuss its operation, in regard first to special declarations, and next to the indebitatus counts. $ 197. In actions, then, of special assumpsit, it may be laid down as an established principle of law, that the plea of non assumpsit on the one hand operates as a denial, not only of the defendant's promise as alleged in the declaration, but of the consideration on which that promise is founded; and on the other, it does not put in issue any matter of inducement which forms no part of the consideration; neither does it deny the defendant's breach of promise, or the plaintiff's consequent damage. It will be presently seen that the several branches of this rule are fully supported, both by the direct illustrations afforded by the judges, and by subsequent decisions. § 198. The first two illustrations are as follows:-" In an action on a warranty, the plea will operate as a denial of the fact of the warranty having been given upon the alleged consideration, but not of the breach; and in an action on a policy of insurance, of the subscription to the alleged policy by the defendant, but not of the interest, of the commencement of the risk, of the loss, or of the (i) Reg. Gen. H. T. 4 Will. 4, r. 21; 5 B. & Ad. vii. See Jones v. Brown, 1 Bing. N. C. 484; 1 Scott, 453, S. C. (j) B. N. P. 21. (k) Reg. Gen. H. T. 4 Will. 4, I. Assumpsit; 5 B. & Ad. vii. EFFECT OF NON ASSUMPSIT IN SPECIAL ACTIONS. 197 alleged compliance with warranties "(). In accordance with the first example here given, it has been held, that, when to an action on the warranty of a horse, the defendant had pleaded non assumpsit, he could not give evidence to show that the horse was sound at the time of the sale (m). The second illustration has been explained to mean, that the plea of non assumpsit puts in issue, not merely the subscription to a policy, containing the particular terms alleged, but to a policy, caused to be made by or on behalf of the plaintiff, and containing those terms; as also the consideration for the defendant's promise, as, for instance, the fact that the plaintiff had paid the premium, or had promised to observe on his part the terms and conditions of the policy (n). The examples given by the judges thus proceed :-"In actions against carriers and other bailees, for not delivering or not keeping goods safe, or not returning them on request, and in actions against agents for not accounting, the plea will operate as a denial of any express contract to the effect alleged in the declaration, and of such bailment or employment as would raise a promise in law to the effect alleged, but not of the breach" (0). So, if an action of assumpsit be brought against an attorney for negligence, the fact of his having been retained by the plaintiff as an attorney would seem to be put in issue by the plea of non assumpsit (p); and in a similar action against a carrier for negligence in conveying goods, the defendant may prove, under the general issue, that the goods were received by him on an express condition that the plaintiff should accompany them for the purpose of protection, and that he neglected to do so, in consequence of which the goods were lost; because such evidence, showing that the promise was conditional, goes to negative the unqualified promise alleged in the declaration (g). (1) Reg. Gen. H. T. 4 Will. 4, I. Assumpsit; 5 B. & Ad. vii. (m) Smith v. Parsons, 8 C. & P. 199, per Lord Abinger. (n) Sutherland v. Pratt, 11 M. & W. 296, 314; 2 Dowl. N. S. 813, S. C.; Redmond v. Smith, 7 M. & Gr. 457; 8 Scott, N. R. 250, S. C. In this last case the declaration alleged, that the policy was made by A, as agent for the plaintiff, and on his account, and for his use and benefit. The defendant, intending to rely on the act of 28 Geo. 3, c. 56. §§ 1 & 2, traversed this fact, but the Court held that the plea was bad, as amounting to non assumpsit. (0) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., I. Assumpsit; 5 B. & Ad. vii. (p) Aldis v. Gardner, 1 C. & Kir. 564, per Cresswell, J. (1) Brind v. Dale, 2 M. & W. 775, recognised by Tindal, C. J., in Webb v. |