who, in consideration of such agreement, promised to pay him a certain salary; it then contained an averment of mutual promises to perform the said agreement,' and closed with alleging a breach on the part of the defendants. The agreement, on production, being found to contain stipulations that the plaintiff should not communicate his discoveries to strangers, and should give the defendants the exclusive benefit of his knowledge, as far as their works were concerned, it was objected that there was a variance between the declaration and the agreement, as the former was silent as to these stipulations, which constituted material parts of the consideration for the defendants' promise. Lord Abinger thereupon amended the record, but the Court of Common Pleas was unanimously of opinion that, although the learned judge had the power of authorising an amendment, yet the exercise of such power was, in fact, unnecessary. Chief-Justice Tindal observed, "The consideration for the defendant's promise is the agreement to which reference is made. The plaintiff does not profess to set out the whole of the agreement. There is no variance unless there is an omission of something of a conditional nature, which, if stated, would require an allegation of performance." And Mr. Justice Coltman added, "If the matters omitted had raised a condition precedent, the omission would have constituted a variance; but the matters, the omission of which is complained of, did not raise any condition precedent. They were not matters which the plaintiff was bound to aver, and, if traversed, to prove, in order to support his action; but would have formed the subject of a cross action, if not performed on the part of the plaintiff."

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§ 238. It may further be remarked, that, in actions of assumpsit, if any part of the contract proved should vary materially from what is alleged in the pleadings, the variance will be fatal. Thus, where a declaration stated a specific contract for the sale of a dwelling-house and fixtures, for the residue of a term of years, to commence from a given day, and to satisfy this allegation, a contract was produced which, on the face of it, showed that it was

The averment of mutual promises must now be omitted in declarations. See ante, § 225. 1 M. & Gr. 851, 852.

a sale of a fee-simple, or at least, left it uncertain what was the interest intended to be conveyed, it was held that the plaintiff must be non-suited. So, in an action against a tenant for not repairing premises demised, where the contract as declared upon was, that the plaintiff should let, and the defendant should take, a farm at a certain rent, the plaintiff undertaking to put the premises in repair within twelve months, and the defendant undertaking to keep them in repair after that time, the Court directed a non-suit, it appearing on the trial that the agreement contained an additional stipulation, that the plaintiff should keep the buildings insured in 600l., and should rebuild in case of fire.'

Hughes v. Parker, 8 M. & W. 244.

Beech v. White, 12 A. & E. 668; 4 P. & D. 399, S. C.

CHAPTER II.

CONFINING EVIDENCE TO POINTS IN ISSUE.

§ 239. THE second general rule, which governs the production of 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, in an action by the indorsee against the drawer of a bill of exchange, where the plea stated that the defendant had indorsed the bill for a special purpose to one Levy, who, in fraud of that purpose, had handed it to one Hunter, and that Hunter had passed it to the plaintiff without any good or valuable consideration, and that the plaintiff was not the bona fide holder, the Court held that, on a replication de injuriâ, the defendant was not at liberty to show that the plaintiff knew of the fraud; that the pleadings put in issue nothing but the fact of a consideration having been given; that the only proper mode of implicating the plaintiff in the alleged fraud by pleading was to aver notice in distinct terms; and that the allegation that the plaintiff was not a bonâ fide holder, was not equivalent to such an averment. So, a particular allegation of voluntary waste will not let in evidence of permissive waste;' and

1 Steph. Pl. 115.

3 Uther v. Rich, 10 A. & E. 784.

2 Clark v. Hougham, 2 B. & C. 149.

• Martin v. Gilham, 7 A. & E. 540; 2 N. & P. 568, S. C.

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.""

§ 240. The cases just cited in illustration of this rule have been selected at hazard; but in order to obtain practical information on this important subject, it may be advisable to examine at some length the new rules of pleading, together with the leading decisions explanatory of their operation. These rules, which came into force in Trinity Term, 1853, and which are founded in great measure on the prior rules of Easter Term, 1834, and Michaelmas Term, 1838, are intended, like the rules which they supersede, to effect three material objects; first, to make the plaintiff acquainted with the intended defence, and thus to prevent his 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."

§ 241. Such being the general objects of the new rules, the

* Boldron v. Widdows, 1 C. & P. 65.

1 Harris v. Mantle, 3 T. R. 307. 3 Stuart v. Lovell, 2 Stark. R. 94; Cornwall v. Richardson, Ry. & M. 305. Most of the cases referred to in the following observations were decided with respect to the rules of 1834; but this fact being borne in mind, they will serve to illustrate the present rules.

⚫ See Isaac v. Farrer, 1 M. & W. 70, per Lord 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 Lord Abinger.

first rule which requires notice in a work on evidence is, that "in all actions by and against assignees of a bankrupt or insolvent, or executors, or administrators, or persons authorised 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." This rule takes no special notice of an action brought by husband and wife, but by the old law, the plea of the general issue admits the marriage.'

§ 242. Passing now to pleadings in particular actions, the most practically important question relates to the effect of the plea of the general issue in actions on contract. This plea, according to the nature of the action, may assume one or other of two forms, being either a plea of "non-assumpsit," or a plea of "never was indebted." With respect to the first form, which is now almost exclusively confined to special declarations, the new rules have determined, that, "in all actions on simple contract, except as hereinafter excepted,' the plea of non-assumpsit, or a plea traversing the contract or agreement alleged in the declaration, shall operate only as a denial in fact of the express contract, promise, or agreement alleged, or of matters of fact from which the contract, promise, or agreement alleged may be implied by law."

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§ 243. By virtue of this rule, which is rendered somewhat obscure by its brevity, the plea of non-assumpsit, when pleaded to an action on special contract, operates on the one hand as a denial, both of the defendant's promise as alleged in the declaration, and

1 Reg. Plead., H. T., 16 Vict., r. 5; 1 E. & B. lxxix. See Jones v. Brown, 1 Bing. N. C. 484; 1 Scott, 453, S. C. The above rule is embodied in the Irish Act, 16 & 17 Vict., c. 113, § 68. 2 B. N. P. 21.

3 In Ireland the general issue would seem to be abolished; for the Act of 16 & 17 Vict., c. 113, enacts, in § 70, that "in actions upon contract, every defence by way of denial must traverse some one, or more than one, material matter of fact; as, for instance, the drawing, or making, or indorsing, or accepting, or presenting, or notice of dishonour of a bill or note." § 71 enacts, that "in actions for wrongs, defences by way of denial shall take issue on some one, or more than one, material matter of fact alleged in the summons and plaint." 4 See post, §§ 248, 268.

Reg. Plead., H. T., 16 Vict., r. 6; 1 E. & B. lxxix.