formations before magistrates, as to actions for penalties; and that Although, in general, it is necessary for a party, who brings an action, to prove all the material facts, which he alleges in support of his claim, yet where the defendant pleads a fact within his own knowledge in discharge of himself, and the plaintiff still insists on the defendant's liability, alleging the same fact in his replication, there the burthen of the proof lies on the defendant, not upon the plaintiff. Thus, in an action of assumpsit, where the defendant Plea of inpleaded infancy, and the plaintiff replied, that "the defendant, af- fancy. ter he had attained his full age, ratified and confirmed the promise and undertaking," the Court held, that the mere proof of a promise to pay was sufficient on the part of the plaintiff; and that it was for the defendant to prove the personal incapacity to contract, on which he grounded his defence, and which lay so peculiarly within his own knowledge. (2) (a) On a trial for bigamy, the register of the first marriage being Pros. for produced, which stated the marriage to be by licence, without stating it to be by consent of parents or guardians, the prisoner in his defence proved, that he was an infant at the time of the marriage; (1) R. v. Turner, 5 Maule & Selw. 206. (2) Borthwick v. Carruthers, 1 T. R. 648. (2) See Note 383, p. 490. (a) See Note 384, p. 491. and it was held, that this made it necessary, on the part of the prosecution, to give some evidence of the consent required by the marriage act. (1) Any subsequent countenance given by the parents or guardians, or other circumstances of a similar kind, might afford ground for presuming the necessary consent. (2) (b) SECT. V. The Substance only of the Issue need be Proved. THE next general rule to be considered is, that on any issue it will be sufficient to prove the substance of the issue. It is a general principle of evidence, that all the material facts in the declaration, which are put in issue, must be established by legal proof. (c) Another principle is, that the nature and extent of the proof will depend upon the manner in which the alleged facts are introduced; allegations, which are merely matters of inInducement. ducements, do not require such strict proof as those which are pre Plea, solvit ad diem. cisely put in issue between the parties. (3) Evidence, as Lord Mansfield used frequently to observe, is always to be taken with reference to the subject matter to which it is applied, and to the person against whom it is used. There are a great variety of examples, both in civil and criminal cases, which might be cited in illustration of the rule now under discussion The object of the present section will be to make a selection of such examples as appear most generally useful. And, afterwards, it will not be foreign to the subject to consider the nature of material and immaterial averments, and the doctrine of variances. In an action on a bond, if the defendant plead solvit ad diem, the issue will be maintained by proof of payment before the appointed day; and payment to a third person by the appointment of the plaintiff, will be substantially payment to the plaintiff himself. (d) (1) Butler's case, Russ. & Ry. Cr. C. 61. (3) By Chambre, J., in 1 New Rep. 219. (2) Ib. in note. In an action of waste, for cutting down a certain number of Waste. trees, proof that the defendant cut a smaller number is sufficient; for, in effect the issue is waste or no waste. (1) And in an action Covenant. of covenant, when the breach assigned is, "that the defendant has not used a farm in a husbandlike nanner, but on the contrary has committed waste," &c. to which the defendant pleads, "that he has not committed waste," &c., but used the farm in a good and husbaudlike manner, and issue is taken upon this, the plaintiff cannot give evidence of any unhusbandlike treatment of the farm, not amounting to waste; for the issue is narrowed to this point. (2) sheriff. In an action against a sheriff, where the plaintiff declared, that Action against he had J. S. and his wife in execution, and that the defendant suffered them to escape, and a special verdict was found, that the husband alone was taken in execution (the execution being for a debt du from the wife before coverture), and that he escaped, the Court held, that the substance of the issue was found, and gave judgment for the plaintiff. (3) In an action on a simple contract, whether assumpsit or debt, the Assumpsit. plaintiff may prove and recover a less sum than he has demanded in the writ; and for this reason, it has been held, that a declaration in such action is not bad for specifying a less sum, though the breach assigned is the non-payment of the whole sum demanded. (4) (e) slander. In actions for slander, the courts used at one time to hold, that Action for the plaintiff was bound to prove the words spoken precisely as laid; but it is now settled that it will be sufficient, if the plaintiff prove some material part of the words alleged on the record. If the declaration contain several actionable words, the plaintiff will be entitled to a verdict on proving some of them. (5) (ƒ) In an action of replevin, where the defendant avowed taking Replevin. the cattle as damage-feasant, the plaintiff pleaded in bar, that one (1) Co. Litt. 282, a. 2 Roll. Abr. 706, tit. Verdict, C. 40. Hobart, 53. (2) Harris v. Mantle, 3 T. R. 307. (3) Roberts and wife v. Herbert, 1 Sid. 5, S. C. cited Bull. N. P. 299. VOL. I. (4) M'Quillin v. Cox, 1 H. Bl. 249. (c) See Note 388, p. 493. (f) See Note 889, p. 494. 26 Action for assault. Constable's district. Plea of tender. Examples in criminal cases. W. was seised of a house and land, &c., whereto he had common, &c., and demised the same to him to hold from a certain day next before for a year; the avowant traversed the lease modo et forma, upon which issue was taken; the jury found a special verdict, that W. made a lease to the plaintiff on the day stated, for a year; and the plaintiff had judgment, for although this is not the same lease as pleaded (since this begins on the day and the other not so soon), yet the Court said, the substance of the issue is, whether or not the plaintiff had such a lease, as by force thereof he might have common at the time, and this appeared to be the case here. (1)(g) If the issue joined between the parties is, whether A. & B. were church-wardens, proof that one was, and not the other, would not be sufficient. (2) So, where the declaration averred, that the plaintiff was constable of a particular parish, and that he was assaulted in the execution of his office as constable, and it appeared on the evidence, that he had been sworn in to serve for a whole liberty, of which the parish formed a part, this was held to be a material variance. (3) If the plaintiff reply, to a plea of tender, that, before the cause of action and after the tender, he demanded the sum tendered, he will be obliged to prove, under the issue joined upon this replication, a demand of that specific sum. The proof of a demand of a larger sum would not support the issue. (4) The same general rule of evidence applies, if possible, still more strongly to the case of criminal prosecutions than to civil suits. It is an universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment, as charges the defendant with a substantive crime. If the indictment charges, that the defendant did, and caused to be done, a particular act, it is enough to prove either the one or the othPros. for libel. er. If the defendant is charged with composing, printing, and (1) Pope v. Skinner, Hob. 72, S. C. cited Bull. N. P. 300. Forty v. Imber, 6 East, 434. (2) Bull. N. P. 299. (3) Goodes v. Wheatley, 1 Campb. 231. (4) Rivers v. Griffiths, 5 Barn. & Al. 630. Spybey v. Hide, 1 Campb. 181. publishing a libel, he may be convicted only of the printing and publishing. (1) tences. On an indictment for obtaining money under false pretences, it False preis not necessary to prove the whole of the pretence charged proof of part of the pretence, and that the money was obtained by such part, is sufficient. (2) (h) On a charge of petit treason, if the killing with malice is proved, Petit treason. but no circumstances of aggravation are proved to make the of fence treasonable, the prisoner may be found guilty of the murder. (3) On an indictment for burglary and stealing goods, if it Burglary. appear that no burglary was committed, as where the breaking and entering were not in the night-or on a charge of robbery, › Robbery. where the property was not taken from the person by violence, or by putting him in fear-the prisoner may be found guilty only of the simple larceny. (4) On the trial of an indictment for murder, the jury may find the Murder. prisoner guilty of manslaughter only; for the principal matter is the killing, and the malice is only a circumstance in aggravation. (5) And if the manner or means of the death, proved at the Manner of trial, agree in substance with the means charged in the indict- death. ment, it will be sufficient; as, where the indictment is for killing with a dagger, and the evidence prove a killing with a staff; (6) or if the indictment be for killing with one sort of poison, and the evidence proves the killing with another; such evidence maintains the indictment, because the proof of the instrument is not absolutely necessary to the proof of the fact itself; (6) but if the charge is for poisoning, and the death is proved to have been caused by striking or starving, &c., this evidence would not support the indictment, as the species of death in the one case is totally different from that in the other. (7) (1) R. v. Hunt, 2 Campb. 583. R. v. Williams, ib. 646. See also cases in 2 East, P. C. 515, 516. (5) Mackalley's case, 9 Rep. 67, b. (2) Hill's case, Russ. & Ry. Cr. C. 1 East, P. C. 341. Rex v. Clark, 1 190. Brod. & Bing. 473. (h) See Note 391, p. 495. |