the legal effect of the facts, when found, is to be decided.' They
embrace all the relations between the fact requiring proof and the
fact or facts actually proved, whether such relations be direct or
indirect, and whether they be physical or moral. A single circum-
stance may raise the inference, as well as a long chain of circum-
stances. For instance, the decision of King Solomon as to which
of the two harlots was the mother of the living child, rested on the
general presumption' in favour of maternal affection, and on the
sole fact that the "bowels" of the real mother "yearned upon her
son," and she would in no wise consent to his being slain.3
So,-
to pass from history to fiction, the famous judgment of Sancho
Panza acquitting the herdsman charged with rape,* was founded on
the ascertained fact that the prosecutrix successfully resisted the
attempt to take her purse, which the accused made by order of the
court. "Sister of mine," said honest Sancho, to the forceful but
not forced damsel, "had you shown the same, or but half as much
courage and resolution in defending your chastity, as you have
shown in defending your money, the strength of Hercules could not
have violated you."

§ 216.5 Although it is the exclusive province of the jury to fix the due weight which ought to be given to presumptions of fact, juries are usually aided in their labours by the advice and instruction of the judge, more or less strongly urged, at his discretion.

171

1See 3 St. Ev. 932; 6 Law Mag. 370. This subject has been successfully illustrated in Wills, Cir. Ev. passim.

2 It may deserve notice that, apart from this presumption, the sacred narrative contains not one word to show that, after all, the judgment was right, that is, that it was really in accordance with the fact. The proverbial wisdom of the decision has, all along, been assumed rather than proved.

31 Kings, ch. 3, vv. 16-28. Suetonius, in his life of the Emperor Claudian, ch. 15, states that the monarch discovered a woman to be the real mother of a young man, whom she refused to acknowledge, by commanding her to marry him; for rather than commit incest she confessed the truth. Diodorus Siculus also speaks of a King of Thrace, who discovered which of three claimants was the son of a deceased king of the Cimmerians, by ordering each of them to shoot an arrow into the dead body. Two obeyed without hesitation, but the other refused. See Bagster's Comprehensive Bible, note B. to v. 25 of ch. 3 of 1 Kings. * Don Quixote, part 2, book 3, ch. 13.

5 Gr. Ev. 45, in part.

Indeed, some few general propositions in regard to matters of fact, and the weight of testimony, are now universally taken for granted in the administration of justice, and are sanctioned by the usage of the bench. Such for instance, is the caution given to juries, to regard with distrust the testimony of ar accomplice, unless it be materially confirmed by other evidence. There is no rigid presumption of the common law against such testimony; yet experience has shown that it is little worthy of credit and on this experience the usage is founded. A similar caution should prevail in regard to mere verbal admissions of a party, this kind of evidence being subject to much imperfection and mistake. So, if a witness be detected in telling a falsehood in one part of his testimony, the jury will be advised to place little reliance on the remainder of his narrative.

1 See New York Civ. Code, & 1852.

2 See further as to the corroboration of acccomplices, post, ?? 967—971. 35 C. & P. 542, n., per Parke, J.; R. v. Simons, 6 C. & P. 541, per Alderson, B.; Williams v. Williams, 1 Hagg. Cons. 304. See post, ?? 861, 862.

PART II

RULES GOVERNING THE PRODUCTION OF TESTIMONY.

CHAPTER I.

CORRESPONDENCE OF EVIDENCE WITH ALLEGATIONS; SUBSTANCE
OF ISSUE; VARIANCE; AND AMENDMENT.

§ 217. THE production of evidence on the trial of an action is governed by certain principles, which may be treated under four general rules. First, the evidence must correspond with the allegations, but the substance only of the issues need be proved; secondly, the evidence must be confined to the points in issue; thirdly, the burthen of proving a proposition at issue lies on the party holding the substantial affirmative; and fourthly, the best evidence, of which the case in its nature is susceptible, must always be produced. These rules will now be considered in their order.

172

$218. The pleadings are composed of the written allegations 173 of the parties, terminating in propositions distinctly affirmed on one side, and denied on the other, called the issues. If these are propositions of fact, the first rule, which it is important to remember, is, that the evidence must correspond with the allegations, but that it is sufficient if the substance of the issues be proved. As one of the main objects of pleading is to apprise the parties of the specific nature of the questions to be tried, and as this object would be defeated, if either party were at liberty to prove facts essentially different from those which he has stated on the record, as constituting his claim or charge on the one hand, or his defence on the other, the necessity of establishing such a general rule as the present becomes apparent, and the only remaining question concerns 1 Gr. Ev. 50, slightly.

2 Gr. Ev. 51, in part, as to first six lines.

its limitation and extent.' Great strictness was formerly required in the application of this rule; almost every disagreement between the allegation and the proof, except in matters clearly impertinent, being held to constitute what was called a variance, the consequences of which were as fatal to the party on whom the proof lay, as a total failure of evidence.

2

§ 219. Thus, in an action for the breach of warranty of a horse, 173 where the declaration stated a general warranty, and the proof was that the defendant had warranted the horse sound everywhere except a kick on the leg, the plaintiff was nonsuited on account of this variance, although the unsoundness of which he complained, and which he established at the trial, was a dropsy. So, where a declaration in ejectment described the premises as situate in the united parishes of St. Giles-in the-Fields, and St. George, Bloomsbury, and it appeared that the parishes were united by Act of Parliament for the maintenance of the poor, but for no other purpose, and that the premises in question were in the parish of St. George, Bloomsbury, this was held to be a fatal variance, though it was idle to suppose that the defendant could have been misled by the misdescription. To give but one more instance where hundreds might easily be furnished, a plaintiff was nonsuited in an action for defamation, because the libel, as set out on the record, imputed to him "mismanagement or ignorance," while, according to the

1 In the case of Caton v. Caton, 7 Ec. & Mar. Cas. 28, Dr. Lushington very sensibly observed: "The maxim of the Eccles. Courts, and I may say of all other courts, is to decide secundum allegata et probata. There must be both charge and evidence; the party cited is entitled to know the specific charge for the purpose of defence. * * The difficulty I feel is to avoid the error of adhering to this rule with pedantic strictness, and, on the other hand, not to weaken a rule which is founded on one of the great principles of justice." See Malcomson v. Clayton,.13 Moo. P. C. R. 206, per Ld. Chelmsford; and The Ann, Lush. Adm. R. 55, in which last case little trouble seems to have been taken by the learned judges of the Privy Council to avoid the “pedantic strictness" alluded to by Dr. Lushington. See, also, Tyrer, v. Henry, 14 Moo. P. C. R. 83; Kilgour v. Alexander, id. 177; The Haswell, 2 B. & Lush., Adm. R. 247; The Amalia, id. 311.

be

2 Jones v. Cowley, 4 B. & C. 445, declared most justly by Alderson, B., to

580.

66

a great disgrace to the English law," in Hemming v. Parry, 6 C. & P.

3 Goodtitle v. Lammiman, 2 Camp. 274.

evidence, the expressions really used in the libel, which had been destroyed, were "ignorance or inattention." "

1

§ 220. The attention of the Legislature being at length drawn 174

5

4

to the flagrant injustice which was thus constantly occasioned, a partial remedy was provided in 1828 by the Act of 9 G. 4, c. 15; 2 but as that statute, though a salutary measure so far as it went, was found to afford a very ineffectual remedy for an evil which all suitors felt to be highly oppressive, larger powers of amendment were granted in 1833 to the English judges, and in 1840 to the Irish judges, by the respective Acts of 3 & 4 W. 4, c. 42, §§ 23 & 24,3 and 3 & 4 V., c. 105, §§ 48 & 49. In 1852, the Legislature again interposed, and by $$ 34, 35, 37 & 222 of the Common Law Procedure Act, and §§ 49 & 53, of the Equity Procedure Act of the same year,' conferred on the courts additional powers of granting amendments. In the Common Law Procedure Acts of 1854 and 1860 further clauses were inserted, authorising the amendment of "all defects and errors in any proceedings under the provisions" of those Acts respectively, "if duly applied for;" and the Irish Common Law Procedure Act of 1853 also empowered the judges in that country to amend "all defects and errors in any writ, pleading, record, or other proceeding in civil causes." "

8

§ 221. The law relating to amendments was not further altered till the Rules of Court framed under the Judicature Acts of 1873 and 1875 came into operation. Those rules,-which introduced into the different Divisions of the Supreme Court a more lax practice than formerly prevailed,-were annulled in 1883; and the rules,

1 Brooks v. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C.

2

Repealed as to Sup. Ct. in Eng., except as to criminal proceedings, by 42 & 43 V., c. 59.

5

Repealed by 46 & 47 V., c. 49.

15 & 16 V., c. 76. See corresponding sections in the Irish Act of 16 & 17 V., c. 113, 22 85-91.

6 Repealed by 44 & 45 V., c. 59.

15 & 16 V., c. 86. See corresponding sections in the Irish Act, 30 & 31 V.,.c. 44, 154, 158.

8

17 & 18 V., c. 125, 96; 23 & 24 V., c. 126, 36.

47 V., c. 49.

Repealed by 46 &

9 16 & 17 V., c. 113, 231, Ir.