CHAPTER III.

THE SUBSTANCE OF THE ISSUE.

Ir is enough if only the substance of the issue is proved.

In other words, a party will have sufficiently proved his case if he substantially establishes his allegations; and he will not be prejudiced by failing to prove matter which is unnecessary to support his claim, and may therefore be disregarded as surplusage. Generally speaking, allegations which are introductory and explanatory may be treated as matter of mere inducement, and consequently as surplusage (a); 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, are inserted in pleadings, they could be struck out as surplusage at common law (b). Thus, in tort involving a claim for a sum certain, it is immaterial that the sum due, as proved, is less than the sum claimed; but where a contract is set out by the plaintiff in his pleadings he cannot recover, unless it is correctly stated; and if he professes to set out a title, he must do so correctly (c). These

(a) Ricketts v. Salway, 3 B. & Ald.

323.

(b) King v. Pippett, 1 T. R. 235.

(c) Gwinnett v. Phillips, 3 T. R. 643.

principles are best illustrated by the leading case of Bristow v. Wright (d), which was an action by a landlord against sheriffs, for taking in execution the goods of his tenant without paying a year's rent, which was due to him; and the declaration stated a demise for a year on reservation of a rent payable quarterly; but 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 a verdict, on showing that a year's rent was in arrear; but the court directed a non-suit, and Lord Mansfield, although he had at first thought the plaintiff's case established, 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 recover. 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, 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

(d) Doug. 665.

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" (e).

A plea of tender is proved by evidence of tender of a larger sum than is alleged (ƒ); but if the plaintiff replies that, after the cause of action accrued, but before tender, he demanded the sum, a demand of the precise sum tendered must be proved (g). 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 (h).

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 (i); but it is not enough to prove merely equivalent words (k).

In an action 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, and 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 (1). Where, in an action of trespass, 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 (m). In an action for an account, it is only necessary to prove that the defendant is an accounting party, without any

evidence as to the items of the account (n); and in seeking to reopen a settled account, proof of one fraudulent item is sufficient to entitle a plaintiff to reopen the whole account. Where an important error is proved, which is not fraudulent, the court will not reopen the whole account, but will give leave to surcharge and falsify (0).

The powers of amendment of the pleadings which the courts now possess, and which are discussed in the next chapter, render the question now under consideration of far less importance than it formerly was.

The rule that it is enough to prove the substance of the issue holds still more strongly in criminal than in civil cases. Thus, where the defendant was indicted for composing, printing, and publishing a libel, and only publication was proved, Lord Ellenborough said that this warranted a conviction, and added: "If an indictment charges that a defendant did, and caused to be done, a particular act, it is enough to prove either. This distinction runs through the whole of the criminal law, and it is invariably enough to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified" (p). So, on an indictment for two connected felonies, the prisoner may be acquitted of one and convicted of the other; as, where he is charged with burglary and stealing, he may be acquitted of the burglary and convicted of the stealing, or vice versâ (q); and on a charge of murder, he may be convicted of manslaughter, for the unlawful killing is the substance of the charge, and the malice is only matter of aggravation (r). So, if a prisoner is charged with killing with a dagger, it will be sufficient if the evidence proved a killing with a stick; or if he is charged with killing with one kind of poison, and the

(n) Law v. Hunter, 1 Russ. 100. (o) See the judgment of Jessel, M. R., Gething v. Keighley, 9 Ch. D. 547.

(p) R. v. Hunt, 2 Camp. 583.
(g) 2 Hale, P. C. 302.

(r) Mackalley's case, 9 Rep. 676.

evidence prove a killing with another. If, however, the charge is one of killing by poison, and the evidence proves death by a weapon or a blow, this will be a fatal variance; for a prisoner cannot be expected to be prepared with evidence to refute a charge totally distinct from that which is laid in the indictment. So, where A. is charged with giving a mortal blow; and B. and C. are charged, having been present, with aiding and abetting, the indictment will warrant a conviction, although the evidence proves B. to have given the blow, and A. and C. to have been present, aiding and abetting, since they all are principals, and the blow is the blow of them all; but if two are charged as principals, and one appears to be only an accessory, he must be acquitted, for the legal offences in this case are different. If an averment is essentially descriptive of the substantial charge, it must be proved. Thus, on an indictment for stealing live turkeys, a prisoner cannot be convicted of stealing dead turkeys (s); and on an indictment for obtaining money or goods by false pretences, the pretence which really operated on the prosecutor's mind must be alleged in the indictment (†). See further on this point, and also as to amendments in criminal cases, infra, Chapter IV.

(8) R. v. Edwards, R. & R. 497.

(t) R. v. Bulmer, L. & C. 476.