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of the action, this was held not to be sufficient, and the defendant was required to prove that her husband was alive within seven years (1): without such additional proof, the jury might have presumed the death of the husband at the time of the promise, which would have been against the defendant's plea.

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 pleaded infancy, and the plaintiff replied, that "the defendant, after 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).

Sect. V.

The Substance only of the Issue need be proved.

The next rule to be considered is, that, on any issue, it will be sufficient to prove the substance of the issue. Thus where the defendant pleaded payment of the principal sum and of all interest due, and it appeared in evidence that a gross sum was paid, not amounting to the full interest, but accepted by the plaintiff as full payment, the Lord Ch. Justice Raymond held the proof to be sufficient (3). So,

(0 Hopewell v. De Pinna, a Campb. (1) Borthwick v. Carrutheri, iT.R. 1*3. M.

(i) Price v. Brown, 1 Str. 690.

in an action upon a special promise to deliver up a bond on the payment of a sum of money, which had been borrowed of the defendant; the evidence for the plaintiff was, that the money had been tendered to the defendant, and the bond had been demanded, but refused; and, an objection being made on the part of the defendant, that the plaintiff's case had not been proved as laid, Lee Ch. J. over-ruled it; and the Court of Common Pleas, after taking time to consider, were unanimously of opinion, that the evidence was sufficient to support the declaration; as the tender on the one side, and the refusal to accept on the other, were in point of law equivalent to payment. (1)

In an action of waste for cutting down a certain number of trees, proof that the defendant cut a smaller number is sufficient; for, in effect, the issue is waste or no waste(2). So, in an action against a sheriff, where the plaintiff declared, that 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 due 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 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 nonpayment of the whole sum demanded. (4)

In actions for slander, the courts used at one time to hold, that the plaintiff was bound to prove the words precisely as laid: but it is now settled, that it will be sufficient,

(1) Alcorn v. WestSrock, i Wilt. (3) Roberts and Wife v. Herbert, US; Wright J., at first, mntra. I Sid. 5. S. C. cited Bull. N. P. 299.

(a) Co. l.lt. 181. a. 2 RoU. Ab. (4) M'QuUlin v.Cot, I H. Bl. 240. 706. tit. Verdict, C, Art. 40.

if the plaintiff prove the substance of the words. And if the declaration contain several actionable words, the plaintiff will be entitled to a verdict on proving some of them (1). Jn the late case of Hall v. Smith (2), where the declaration stated, that the plaintiff was a trader at C and also a trader at O, and that the defendant spoke concerning the plaintiff as such trader, that he ivas a banhupt at C, &c., it was proved at the trial, that the plaintiff carried on a trade at O, but not that he carried on the other trade at C as stated, and the words spoken of him were that he was a bankrupt at C in the liquor trade, (which was the trade carried on at O), the Court held, that the substance of the charge had been proved, and that the place, where the plaintiff was stated to have become a bankrupt, was immaterial.

In an action of replevin, where the defendant avowed taking the cattle as damage-feasant, the plaintiff pleaded in bar, that one W was seized 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 formd, 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. (3). But, the Court added, it (the verdict) must not depart altogether from the form of the issue; for if it had been found that he had right of common by a lease from another, or as an owner, that had been clearly out of the issue both in matter and form. And they admitted, that if the plaintiff had declared

(i) Compagnon v. Martin, 2 Bl Rep. (3) Pope v. Skinner, Hob. S. C. ?oo di;d, Bull. N P. 300.

(1) 1 Mau\ ftS..l 187.

thru thus in ejectione frnue, it would have been clearly against him, for there he demands and recovers the term, and therefore must make his title truly. In the principal case, as the reporter observes, the jury might have found directly against the plaintiff non dimisit modo et forma, and could not safely have found a general verdict for him; but, the jury having found specially, the Court gave judgment for the plaintiff. (1)

In replevin, if the defendant avow taking the cattle as damage-feasant, and the plaintiff justify for common, and aver that the cattle were levant and couchant, on which issue is joined, proof only for part of the cattle is not sufficient, for the issue is upon the whole (2). So, if the issue joined between the parties were, whether A and B were churchwardens, proof, that one was and not the other, would not be sufficient (3). So, where the delaration 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. (4)

On a charge of petit treason, if the killing with malice is proved, but no circumstances of aggravation are proved to make the offence treasonable, the prisoner may be found guilty of the murder. So on an indictment for burglary and stealing goods, if it appear that no burglary was committed, as where the breaking and entering were not in the night, the prisoner may be found guilty only of the simple larceny (5); so, on a charge of robbery, where the

(») S. C. cited as to this point, Com. v. Willett, a H. BL a14; I Campb.

Dig. tit. Pleader, S.7. 314, y, as to variance* in the proof of

(a) Sloper v. Allen, a Roll. Ab. 706. a prescription or castom. tit. Trial, C. 41. S. C. cited Bull N. (3) Bull N. P.aoo. P. 299. See also Coney v. Verden, (4) Gcodes v. Wheatly, I Campb.

cited from MS. in 1 Selw. N. P. 393; N. P. C. 131.
Griffin v. Bbndford, Cowp. 6%; Brook (5) a East, P. C. J13.

, proproperty was not taken from the person by violence or by putting him in fear. So, on the trial of an indictment for murder, the jury may find the prisoner guilty of manslaughter only; for the principal matter is the killing, and the malice is only a circumstance in aggravation (1). And if the manner or means of the death proved agree in substance with the means charged in the indictment, it will be sufficient; as, where the indictment is for killing with a dagger, and the evidence prove a killing with a staff (2); so, 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 &ct itself (2); 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. (3)

So, if the indictment charges that A gave the mortal blow, and that B and C were present abetting, &c., but on the evidence it appears that B struck, and that A and C were present &c., this is not a material variance, for the stroke is adjudged in law to be the stroke of every one of them, and is as strongly the act of the others, as if they all three had held the weapon, and had altogether struck the deceased (4). But if two persons are indicted as principals, and one is proved to be only accessary, he must be discharged on this indictment (5). So one indicted as accessary before cannot be convicted upon evidence'proving him to have been (principal in the second degree) present aiding and abetting at the fact (6). In Mackalley's case (7), where the prisoner was tried for the murder of a

(1) Mackalley's case, 9 Rep. 67. b. 4 Rep. 42. b. Wallis's case, 1 Salk.

Co. Lit. 282. a. Gilb. Ev. 133. 334

(1)9 Rep.67.1 Gilb.Br.231.1 East, (5) Gilb.Ev.2j1.

P. C.341. (6) Gordon's case, I East, P. C.

(3) IS. and 2 Inst. 319. 352.

(4) Mackalley's case, 9 Rep. *7.b. (7) 9 Rep. 61. b. 67.1. 68. a.

serjeant

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