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Thus, generally, in summary proceedings before magistrates, the defendant, who claims a qualification, and not the informer who charges the want of it, must prove the fact; for this is peculiarly within the knowledge of the former. This principle has been expressly 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.' But where a plaintiff claims costs under the County Court Acts, on the ground that the defendant resides out of the jurisdiction, the plaintiff must give primâ facie evidence that such is the fact.3


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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,5 legitimacy of children born in wedlock, 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. In a late case it was held, that where a man and woman have cohabited for several years as man and wife, and separated on the same footing, the presumption that they were married is so strong that it can be rebutted only by the strongest and most distinct evidence to the contrary by the party impugning the marriage; and "modern cases have established that when the party

1 R. v. Turner, 5 M. & S. 206.

2 Sup. 52, cf. Doe v. Whitehead, 8 A. & E. 571.

3 Stokes v. Grissell, 23 L. J. 141, C. P. Hartley v. Wharton, 11 A. & E. 934.

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

• Tayl. § 92.

8 See ante, Chapter V.

7 Nepean v. Doe, 2 Sm. L. C.; Sup. p. 57.

9 Haviland v. Mortiboy, 32 L. T. 343, L. C.

on whom the onus lies of proving the allegation gives evidence, as consistent with one view of the case as the other, he fails in his proof."

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.2

1 Erle, J.: Wheelton v. Hardisty, 26 L. J. 272, Q. B. 2 Brandford v. Freeman, 5 Ex. 734.




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

In other words, a party will have proved sufficiently 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. 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.


If words which are without meaning, or which have been introduced by mistake, be inserted in pleadings, 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.
3 Gwinnett v. Phillips, 3 T. R. 643.
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


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

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

is proved; 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.'


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. 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. 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.

4 Gladwell v. Steggel, 5 Bing. N. C. 733. 6 Dean v. James, 4 B & Ad. 546.

5 Supra, p. 188.

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