judgment non obstante veredicto, on account of the insufficiency of the special pleas, and the defendant insisted that as the plaintiff had tendered immaterial issues on the pleas, and as the pleas also did not confess the cause of action, there ought to be a repleader: the court refused the repleader, as the pleas were no answer to action; granting a repleader would only be in substance allowing the defendant to set up some other defence. Goodburne v. Bowman et el. 9 Bing. 532.

But there shall be no repleader, where the cause of action is confessed, though the issue be immaterial; 1 Salk. 173. and see 1 Str. 394. 23: nor where, by the defect in joining issue, there is a discontinuance; R. 6 Mod. 3; nor in cases where the court may give judgment non obstante veredicto. Semb. sec 1 Str. 394. 5 H. 7, 29. 21 E. 4, 31. Doct. Pl. 311. 313. Doug. 396. Nor will the court award it were there has been a demurrer, 3 Co. 52 b, Ridgway. 1 Leon. 79. Cro. El. 62. 318, at least without the consent of parties; Per 2 J. Rol. 271. Moor, 461. 867. Latch. 147. Per Powl, 6 Mod. 102. R. Sav. 89. 2 Bulst. 37. and sec Com. Dig. Pleader, R. 18; nor after the defendant has made default: 1 Salk. 216. 2 Salk. 579. 6 Mod. 3. 1 Str. 46; nor after a discontinuance; Comb. 323. 1 L. Raym. 20. 1 L. Raym. 20. 1 Salk. 219⚫ nor after a writ of error; 2 Saund. 319 b. (n.); nor will they award it in favor of the person who made the first default in pleading. Id. Doug. 396. per Buller. But see 2 Str. 994.

If a repleader be denied where it should be granted, or granted where it should be denied, it is error. 2 Salk. 596. 6 Mod. 1. 2 L. Raym.

922.

SECT. II.

Repleader, how Awarded.

The form of the award upon the roll, is thus: (after entering the pos. tea :) "and because the court of our lord the king here are not yet advised what judgment to give of and upon the premises, a day is therefore given to the parties aforesaid before our said lord the king at West. minster until, to hear the judgment of the said court thereupon; for that the court of our said lord the king now here are not yet advised thereof &c. At which day before our said lord the king at Westminster, come as well the said plaintiff as the said defendant by their respective attornies aforesaid; and hereupon all and singular the premises being seen, and by the court of our said lord the king now here fully understood, and mature deliberation being thereupon had, for that it appears to the court of our lord the king now here that the said plea of

the said defendant by him above pleaded in bar, and the issue thereupon joined, are immaterial and insufficient in law," [or as the case may be,] "and that no judgment therefore should be given upon the verdict aforesaid therefore it is said to the said plaintiff and to the said defendant that they do replead &c., that is to say, that the said defendant do answer anew to the said writ, and that the said parties do further proceed therein, and that they do descend to an issue of the country thereon, or plead to the judgment of the court therein. And thereupon the said defendant says," [&c. so continuing the new set of pleadings.]

The parties are to begin at the first fault. which occasioned the immaterial issue: 1 L. Raym. 169. 21 H. 6, 14, a. L. 5 E. 4, 108. 19 E. 4, 1 b. 22 H. 6. 18, 19. Doct. Pl. 55, 311. 312. T. Raym. 458. 6 Mod. 2. 2 Salk. 579; that is, if the plea and replication be ill, the defendant shall begin, by pleading de novo; if the plea be good, but the replication ill, the plaintiff shall begin, by replying de novo.

Formerly a repleader used to be allowed, as well before verdict, as after it; but since the stat. 32 H. 8, c. 30, by which many of the defects for which a repleader was formerly awarded, are cured by verdict, the court will not now allow a repleader until after verdict. 2 Salk. 579. 6 Mod. 2.

Upon a repleader, neither party is entitled to costs. 2 Vent. 196. 2 Salk. 579. 6 Mod. 2.

*BOOK I.

PART II.

EVIDENCE GENERALLY,

CHAPTER I.

THE EVIDENCE NECESSARY TO MAINTAIN THE ISSUE.

SECT. 1. What must be Proved.

2. The Manner of Proving it.

SECT. I.-What Allegations must be Proved.

WHEN the pleading of either party consists of a general traverse, his adversary is obliged to join issue upon it, and at the trial must prove the facts thus traversed and put in issue. Thus, where a general issue is pleaded, the plaintiff is obliged to prove so much of the cause of action laid in the declaration or count, as is put in issue by the plea; see ante, p. 178-180; when the replication is a general traverse of the plea, the matter of defence is thereby put in issue, and the defendant must prove it; where the rejoinder is a general traverse of the replication, the matter of reply is thereby put in issue, and the plaintiff must prove it. So, where either party's pleading concludes with a special traverse, his adversary, if he join in the traverse, must prove at the trial the matter traversed. Where, in an action on a bond by the assignees of a bankrupt, the defendant pleaded payment, it was holden that it was not incumbent upon the plaintiffs to prove themselves assignees the only matter in issue was the payment; all other matters being admitted by the plea. 1 Stark. 76. And now, by Reg. Pl. H. 4

W. 4. Ì. s. 21, “ in all actions by and against assignees of a bankrupt or insolvent, or executors or administrators, or persons authorized by act of 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.

The general rule usually laid down upon this subject is, that he who asserts the affirmative, must prove it. Gilb. Ev. 145. and see 4 T. R. 33. 3 B. & B. 302. 1 C. & P. 217. 483. But this is far from being universally true in the first place, where the gist of the cause of action stated in the declaration is a negative, as in the case of an action for non-feasance, the plaintiff must prove the negative, if the defendant put it in issue by his plea. As, for instance, in an action against a carrier, for the loss of a parcel, it is necessary to prove that it was not delivered by the defendant to the party to whom it was directed. See 1 C. & P. 140. Where a defendant pleaded that the plaintiff did not allow or permit him &c., Abbott, C. J. seemed of opinion that the defendant, to support his plea, must have proved some positive act of obstruction by the plaintiff. 2 C. & P. 110. Where the plaintiff declared against the defendant, who had chartered his ship, for having put on board a dangerous commodity (by reason of which a loss had happened,) without due notice to the captain or any other person employed in the navigation; the court held that the plaintiff was bound to prove this negative, namely, the want of notice. 3 East, 192. So, where the gist of a plea (not consisting of a traverse) is a nega. tive, as, for instance, the plea of ne unques accouple, Gilb. Ev. 145, 146, the defendant is bound to prove the negative, if it be put in issue by the plaintiff's replication. So, where the issue is upon the life or death of a person once existing, it has been holden that the onus probandi lies upon the person asserting the death. 2 East, 312. Indeed, there is one exception to this, which however is an anomaly; namely, that where a cause of action or matter of defence under a statute is pleaded, which statute contains a proviso or exception in the same substantive clause on which the action or defence is founded; although the declaration or plea must negative the cause of action or defence being within the proviso or exception, yet it is not necessary for the party to prove the negative, but it rests with the other party to prove the affirmative. As, for instance, in an action on the game laws, although it is necessary to allege in the declaration that the defendant is not qualified, yet the plaintiff is not obliged to prove this negative. 1 B & P. 468, 469; and see 5 M & S. 206. So, in an action on stat. 55 G. 3, c. 194, for practising as an apothecary" without having ob.

tained such certificate as by the said act is required," Abbott, C. J. held that the plaintiffs were not bound to give any evidence in proof of this negative, but it lay with the defendant to prove, if he could, that he had such a certificate. R. & M. 159. But with this exception, the rule we are now considering, and the several cases which qualify it, will be found to resolve themselves ultimately into the simple rule first above laid down, namely, that the matter of a pleading (always excepting a traverse, general or special.) if put in issue, must be proved by the party pleading it, whether it be affirmative or negative. As a negative is in most cases difficult of proof, the same exactness is not required as in the proof of an affirmative; and the court are therefore satisfied, in such a case, with such reasonable evidence of the negative, as appears to be within the power of the party, and they then throw the onus of proving the affirmation on the opposite party.

As to what matters the court will judicially notice without being pleaded or proved, see ante, p. 95-97.

Surplusage, not.] It frequently happens that allegations occur in pleadings, which are wholly irrelevant to the cause of action or defence, &c; or which, although relevant, are unnecessary to be stated: such allegations may be rejected as surplusage, and of course need not be proved. As this is obviously a subject of essential importance to the right understanding of the matter under our consideration in the present section for by pointing out the matters which need not be proved, it enables us instantly to ascertain what allegations must-it may be necessary to consider it here with some minuteness.

In a declaration, if any thing be stated which is wholly immaterial or irrelevant, it may be rejected as surplusage. As, in a warrantia charta. where the plaintiff declared that he requested the defendant to warrant the land to him or give him a plea a bar: upon its being objected that the declaration was insufficient, because the vouchee might plead in abatement as well as in bar, the court held that what related to the plea in bar might be rejected as surplusage for it was only necesssary to state the request to warrant, and the refusal. Hob. 23. So, where in an action against a sheriff, for taking insufficient pledges in replevin, the declaration stated that the plaintiff in replevin levied his plaint "at the next county court holden, &c. before A. B. C. & D., suitors of the court; and in evidence it appeared that the court was holden before E. F. G. & H.: the variance was holden to be immaterial, as it was not necessary to state the names of the suitors, and they might therefore be rejected as surplusage. 2 B. & C. 2. So, where in an action for an escape, the declaration stated the judgment, and also, that the court in a subsequent term awarded execution; and on the trial,