CHAPTER, II. CONFINING EVIDENCE TO POINTS IN ISSUE. 2 $298. THE second general rule, which governs the production of § 239 testimony, is, that the evidence must be confined to the points in issue. This rule is founded upon the consideration that, since these points have been alone selected by the parties in their pleading, as those on which they are mutually willing to rest the fate of the cause, any evidence in support of other facts which, not being expressly alleged, must be assumed to have no existence, or not being expressly denied, must be admitted to be true, would be obviously improper. Thus, where to an action of assumpsit the defendant pleaded the statute of limitations, to which there was a replication that he did promise within six years, and issue thereon, the plaintiff was not allowed to prove that the action was grounded on a fraudulent receipt of money by the defendant, and that the fraud was first discovered within six years from the commencement of the suit. So, where in covenant, the breach assigned was that the defendant had not used the plaintiff's farm in a husbandlike manner, but had committed waste, evidence of bad husbandry not amounting to waste was rejected. Again, in an action of defamation, where the issues. raised by the pleas of justification were whether the plaintiff's scholars were ill fed, badly lodged, and covered with vermin, the defendant's counsel was not permitted to put any questions to the witnesses, with the view of showing that the boys were also badly educated; and in another action of the same kind, where the defendant had only pleaded the general issue, Lord Ellenborough would not allow the plaintiff to prove that the assertions contained in the libel were false. "There is no plea of justification on the record," said his Lordship, "and, therefore, I can no more hear a falsification on the one side, than a justification on the other." 5 3 1 Steph. Pl. 115. Harris v. Mantle, 3 T. R. 307. 2 Clark v. Hougham, 2 B. & C. 149. 4 Boldron v. Widdows, 1 C. & P. 65. Cornwall v. Richardson, Ry. & M. 305. § 299. The cases just cited in illustration of this rule have been § 240 selected at hazard; but in order to obtain practical information on this important subject, it may be advisable to examine at some length the rules of pleading, together with the leading decisions explanatory of their operation. These rules, which came into force on the 2nd of November, 1875, are intended,—like those which they supersede, to effect three material objects; first, to make each party acquainted with the intended case of his opponent, and thus to prevent either side from being taken by surprise at the trial; secondly, to save the expense of collecting unnecessary evidence; and thirdly, to bring legal defences more prominently forward on the face of the record.2 5 § 300. With the view of attaining these objects the rules provide, in general terms, that all pleadings shall henceforth consist, first, of a statement of claim or complaint,3 next, of a statement of defence, set-off, or counter-claim, thirdly, of a statement of reply, if any, and lastly, of a joinder of issue on the one side or the other. They then go on to provide, that "every pleading shall contain, as concisely as may be, a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved."6 § 301. In addition to these cardinal propositions ten other pleading rules may here be cited as having a material bearing on the Law of Evidence. First comes Rule 17, which provides, that "every allegation of fact in any pleading in an action, not being a petition or summons, if not denied specifically or by neces 1 Most of the cases referred to in the following observations were decided with respect to the old rules of pleading; but that fact being borne in mind, they will serve to illustrate the present rules. 2 See Isaac v. Farrer, 1 M. & W. 70, per Ld. Abinger; 4 Dowl. 755, S. C.; Barnett v. Glossop, 1 Bing. N. C. 636, 637, per Park and Bosanquet, Js. ; 3 Dowl. 625, S. C.; Gutsole v. Mathers, 1 M. & W. 502, 503, per Ld. Abinger. 3 These terms are used synonymously. See Rules of Sup. Ct., Ord. xix. rr. 2, 8, et passim. 5 Ord. xix., rr. 2, 21. 4 See post, § 304. 6 R. 4. sary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, lunatic, or person of unsound mind not so found by inquisition." Rule 18 next provides, that "each party to any pleading, not being a petition or summons, must allege all such facts not appearing in the previous pleadings as he means to rely on, and must raise all such grounds of defence or reply, as the case may be, as if not raised on the pleadings would be likely to take the opposite party by surprise, or would raise new issues of fact not arising out of the pleadings, as for instance, fraud, or that any claim has been barred by the Statute of Limitations, or has or has been released." According to Rule 19, "No pleading, not being a petition or summons, shall,-except by way of amendment,2-raise any new ground of claim, or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same." § 302. By virtue of Rule 20 "it shall not be sufficient for a defendant in his defence to deny generally the facts alleged by the statement of claim, or for a plaintiff in his reply to deny generally the facts alleged in a defence by way of counter-claim, but each party must deal specifically with each allegation of fact of which he does not admit the truth." Rule 21 provides, that, "subject to the last preceding rule, the plaintiff by his reply may join issue upon the defence, and each party in his pleading, if any, subsequent to reply, may join issue upon the previous pleading. Such joinder of issue shall operate as a denial of every material allegation 1 An exception to this proposition is contained in Rule 15, which provides, that "no defendant in an action for the recovery of land, who is in possession by himself or his tenant, need plead his title, unless his defence depends on an equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff." It will suffice in such case to state that he is in possession. Id. 2 See, also, Rule 14, which provides, that ". no new assignment shall hereafter be necessary or used. But everything, which has heretofore been alleged by way of new assignment, may hereafter be introduced by amendment of the statement of claim." See Earp v. Henderson, L. R., 3 Ch. D. 254; 45 L. J., Ch. 738, S. C., as explained by Hall v. Eve, L. R., 4 Ch. D. 341; 46 L. J. Ch. 146, S. C. of fact in the pleading upon which issue is joined, but it may except any facts which the party may be willing to admit, and shall then operate as a denial of the facts not so admitted." § 303. It will be noticed that in their practical effect these last two rules almost entirely1 do away with what used to be termed by Special Pleaders "the General Issue," so far as the statement of defence is concerned, though, at the option of the parties, they retain in the reply or any subsequent pleading that sweeping form of traverse. Their operation on the plea will be best understood by referring to the former law on that subject, and pointing out how it differs from the present practice. Under the old forms of pleading, whenever the defendant could show that in fact no debt ever existed before action brought, he might do so under the plea of "never indebted." For instance, if the action were for goods sold and delivered, he might defend himself under that plea, by proving that they were paid for by ready money; that they were sold on credit, which was unexpired when the action was commenced;3 that they were bought through an agent, and that before the expiration of the credit, the defendant had remitted the price of the goods to the agent; that they were sold under a condition, that if they did not answer their purpose, nothing should be paid for them, and that in fact they did not answer their purpose; 5 that they were sold under any special agreement, which had not been performed; that they were delivered under a contract of barter;7 that the goods delivered did not answer the description of the articles which the vendor pro 1 See post, § 311. 2 Bussey v. Barnett, 9 M. & W. 312. But see Littlechild v. Banks, 7 Q. B. 739. 3 Broomfield v. Smith, 1 M. & W. 542, overruling Edmonds v. Harris, 2 A. & E. 414; 4 N. & M. 182, S. C. ✦ Smyth v. Anderson, 7 Com. B. 21. 5 Grounsell v. Lamb, 1 M. & W. 352. See Lamond v. Davall, 9 Q. B. 1030. 6 Broomfield v. Smith, 1 M. & W. 543, per Ld. Abinger; Garey v. Pyke, 10 A. & E. 512; 2 P. & D. 427, S. C.; Hayselden v. Staff, 5 A. & E. 153; 6 N. & M. 659, S. C.; Mosely v. M'Mullen, 6 Ir. Law R., N. S. 69. 7 Harrison v. Luke, 14 M. & W. 139; Smith v. Winter, 12 Com. B. 487; Bracegirdle v. Hinks, 9 Ex. R. 361. 6 fessed to sell; or that they turned out to be utterly useless. So, in an action for use and occupation, the defence that the premises were held under a demise at a rent payable quarterly, and that before the rent became due, either the plaintiff,3 or his superior landlord, evicted the defendant, or the former accepted a surrender of a term from him, might have been given in evidence under the "general issue." The defendant might, also,5 have proved under the same plea that, before the rent was due, he received notice from a mortgagee of the premises to pay the rent to him ; but if the mortgagee's claim had not been made until after the rent had accrued, and the plaintiff's right of action had consequently vested, the demand would have furnished no defence. In a similar action, the defendant might probably have shown, under the plea of never indebted, that the premises were uninhabitable, when such a defence was a bar to the action; or that there had been no actual entry by him; 10 or that his occupation had not been by the sufferance of the plaintiff; or that he had originally occupied the premises by the permission of a prior owner, to whom he had paid all arrears of rent 11 9 8 1 Gompertz v. Bartlett, 2 E. & B. 849. There an unstamped bill of exchange, purporting to be a foreign bill, had been sold, but on proof that it was really drawn in London, the vendee was held entitled to recover back the price of the bill, on the ground of a failure of consideration. See now 33 & 34 V., c. 97, § 52, cited ante, § 72. 2 Cousins v. Paddon, 2 C. M. & R. 457; 4 Dowl. 488; 5 Tyr. 535, S. C., recognised by Ld. Denman in Hayselden v. Staff, 5 A. & E. 162; Baillie v. Kell, 4 Bing. N. C. 638; 6 Scott, 379, S. C.; Chapel v. Hicks, 2 C. & M. 214; Allen v. Cameron, 3 Tyr. 907. These cases overrule Roffey v. Smith, 6 C. & P. 662. 3 Prentice v. Elliott, 5 M. & W. 606; Dodd v. Acklom, 6 M. & Gr. 672. 4 Selby v. Browne, 7 Q. B. 620. See Hickman v. Machin, 4 H. & N. 716. 6 Waddilove v. Barnett, 2 Bing. N. C. 538; 2 Scott, 763; 4 Dowl. 347, S. C., recognised in Hayselden v. Staff, 5 A. & E. 159. See ante, § 102. 7 Wilton v. Dunn, 17 Q. B. 294, overruling on this point Waddilove v. Barnett, 2 Bing. N. C. 538,' and Pope v. Biggs, 9 B. & C. 245. See Hickman v. Machin, 4 H. & N. 716. 8 Smith v. Marrable, 11 M. & W. 5, 8, 9, per Parke, B. See same case, and compare it with Sutton v. Temple, 12 M. & W. 52 ; Hart v. Windsor, id. 68; Gott v. Gandy, 2 E. & B. 845; Murray v. Mace, I. R., 8 C. L. 396; and Wilson v. Finch Hatton, L. R., 2 Ex. D. 336. 10 Lowe v. Ross, 5 Ex. R. 553; overruling a dictum of Tindal, C. J., in Atkins v. Humphrey, 2 Com. B. 654. " Powell v. Hibbert, 15 Q. B. 129. |