Stanley v. White, 14 East, 322; but in trespass by the proprietors of a canal, it was held, that evidence of acts of ownership by the proprietors on other parts of the banks than those in question was not admissible to prove property, without shewing them to be part of one entire district, or that they had belonged to one person. Hollis v. Goldfinch, 1 B. and C. 205, and see Tyrwhit v. Wynn, 2 B. and A. 554. In an action by a rector for tithes, where the question is, whether a modus exists of a certain sum of money for a particular farm in a township within the parish, and the ecclesiastical and parliamentary surveys are silent as to any township or farm modus, after proof by the defendant of a uniform payment in lieu of tithes, the plaintiff may inquire whether other farms in the same township are not subject to the same payment, for the purpose of showing that such payments cannot be a modus, consistently with the evidence previously adduced. Blundell v. Howard, 1 M. and S. 292. 1 Phill. Ev. 164.

Evidence of special damage.] Where the special damage sustained by the plaintiff is not stated in the declaration, it is not one of the points in issue, and evidence of it cannot be received. But a damage which is the necessary result of the defendant's breach of contract may be proved, although not alleged in the declaration. See Ward v. Smith, 11 Price, 19. Special damage must be stated with certainty. Thus, where in an action for an irregular distress, it was averred that the plaintiff, in consequence of the injury, had lost divers lodgers, without naming any, Lord Ellenborough rejected evidence of the damage, because the names of the lodgers were not specified. Westwood v. Cowne, 1 Stark. 172. Where it was alleged as special damage that the plaintiff lost her marriage with J. N., Holt, C. J. refused to let evidence be given of a loss of marriage with any other person. Martin v. Henrickson, 2 Ld. Raym. 1007; and see post, "Case for defamation."

Evidence of character.] In general, evidence as to the character of either of the parties to a suit is inadmissible, it being foreign to the point in issue. Thus, in an action for slander, imputing dishonesty to the plaintiff, he cannot adduce evidence in the first instance of good character. Cornwall v. Richardson, R. and M. 305. So also it has been held, that the plaintiff in an action for crim. con. or seduction, cannot give evidence of the good character of the wife or daughter, until evidence has been offered on the other side to impeach it; Bamfield v. Massey, 1 Campb. 460; and, if such evidence be not general, but go only to a specific instance, it has been ruled, that the plaintiff cannot, in reply, give evidence of general character, but must be restricted to the disproving of the specific in

stance. Ibid. but see 2 Phill. 205, 2 Stark. Ev. 371. Where the cross examination of the plaintiff's witnesses has been directed to impeach the character of the plaintiff, and the witnesses deny the imputation intended, proof of the plaintiff's good character is not admissible. King v. Francis, 3 Esp. 116. See Bate v. Hill, 1 C.

and P. 100."

But evidence of the party's bad character is admitted in some actions, with a view to the amount of damages. Thus, in actions of crim. con. evidence is admissible of the wife's bad character for chastity, and even of particular acts of adultery committed by her before her intercourse with the defendant; for, by bringing the action, the husband puts her general behaviour in issue. B. Ñ. P. 27, 296. So of the husband's profligacy, and of his criminal connexion with other women. Ibid. So in slander, it was formerly held, that where the defendant does not justify, evidence might be given of the plaintiff's bad character, as that at the time of the supposed offence, the plaintiff was generally suspected of the crime imputed to him; v. Moor, 1 M. and S. 284, Lord Leicester v. Walter, 2 Campb. 251; but it has since been decided, that general evidence of the plaintiff's bad character is inadmissible in mitigation of damages. Jones v. Stevens, 11 Price, 235. See further as to the character of witnesses, post.

Particulars of plaintiff's demand.] Where the plaintiff has delivered a bill of the particulars of his demand, he will be precluded from giving any evidence of demands not contained in his particular. Thus, where the particular states a demand for horses sold by the plaintiff to the defendant, evidence cannot be given of money due from the defendant for horses sold by him as the plaintiff's agent. Holland v. Hopkins, 2 B. and P. 243. But in an action against an agent for not accounting for gooods delivered to the plaintiff to be sold, and for goods sold, and money had and received, particulars headed "A. to B. tierces of porter, &c. l. -" and containing also items for money had and received, were held to be applicable to any of the counts in the declaration. Hunter v. Welch, 1 Stark. 224. So in an action by a carrier who had misdelivered certain goods to the defendant, which the latter appropriated to his own use, the carrier having paid the amount of the goods to the real owner, it was held that he might recover on the count for money paid, although his particulars were only "To seventeen firkins of butter, 55l. 6s." Brown v. Hodgson, 4 Taunt. 189. Where the particulars contain a demand on a promissory note only, which could not be given in evidence for want of a stamp, it was held, that the plaintiff could not give evidence of the consideration of the note. Wade v. Beasley, 4 Esp. 7. Where a particular need not be given as to some counts, the omission of those causes of ac

W

tion will not be material. Thus, where the first count was on a bill of exchange for 407., and the second on a bill for 201., and the third for goods sold, and the particulars specified only the 201. bill and the goods, per Abbott, C. J. “That is no objection. If the bill is specified in the declaration, it need not be mentioned in the particulars. You must give a particular of goods sold, but you never need give a particular of bills of exchange, if they appear in the declaration." Cooper v. Amos, 2 C. and P. 267. The plaintiff may recover interest, though the particular only contains a demand upon a promissory note. Blake v. Laurence, 4 Esp. 147. In one case, it was ruled that the plaintiff might recover more than his particulars demanded, the defendant having given in evidence an account, from which it appeared that there was a sum of money due to the plaintiff beyond that claimed in his particulars. Hurst v. Watkins, 1 Campb. 68, and see 1 Phill. Ev. 182. So where the defendant pleaded in abatement, that the promises were made by himself and another person jointly, and it appeared from the particulars, and was admitted at the trial, that some of the articles were furnished to the defendant jointly with the person named in the plea, it was held by Lord Kenyon, that the plaintiff was bound by his particulars, and that he must be nonsuited, although it appeared by the particulars that part of the demand was due from the defendant alone. Colson v. Selby, 1 Esp. 451. But where, in an action for lottery-tickets sold, the particulars of the defendant's set-off mentioned the sale of the tickets to himself, it was held, that this was not sufficient proof of the sale, and that the fact must be proved by other evidence. Miller v. Johnson, 2 Esp. 602. Harrington v. Macmorris, 5 Taunt. 229. Yet, in a very late case, the particulars of the plaintiff's demand were allowed to be read for the defendant, in order to prove payments for which the plaintiff had given the defendant credit. Rymer v. Cook, 1 M. and M. 86 (n). The plaintiff may give evidence of a demand contained in his particular, though he omitted to include it in a bill delivered before action brought. Short v. Edwards, 1 Esp. 374.

A mistake in the particulars, not calculated to mislead, is immaterial. Thus, where the particular specified a bill for 607. bearing date on a certain day, and the evidence was of a bill for 631. dated on a different day in the same year and month, Abbott J. held the variance to be immaterial. Manning's Index, 240. So where the particulars specify a payment made on account of the defendant to A., which was in fact made to B., it is sufficient, unless the defendant will state to the court by affidavit that he has been misled. Day v. Bowyer, 1 Campb. 69 (n). So where the action is for money had and received to the use of the bankrupt, and the particulars for money had and received to the use of the plaintiffs, as

12 Eng. Com. Law Reps. 124. * 1 Id. 88.

assignees. Tucker v. Barrow, 1 M. and M. 137. So also where work and labour is stated to have been performed in a certain month, which was in fact performed in another month, it is immaterial. Millwood v. Walter, 2 Taunt. 224. So again, where in debt for rent, premises situate at A. are described as situate at B., it is immaterial, unless the defendant can prove that he held other premises at B. of the plaintiff. Davies v. Edwards, 3 M. and S. 380. If the plaintiff, perceiving a defect in his particulars, delivers a second bill of particulars large enough to comprehend his whole demand, yet this will not avail him, unless the second particular has been delivered under a judge's order, and he will be confined to his first particular. Brown v. Watts, 1 Taunt. 353.

The particulars are proved by the production of the judge's order, and of the particulars themselves, and by proof of the signature of the party, or his attorney or agent. 1 Phill. Ev. 183.

Evidence confined to the issue of what facts the courts will take judicial notice. There are various facts which the courts notice judicially, and of which it is of course unnecessary to give any evidence. They will judicially notice the order and course of proceedings in Parliament; Lake v. King, 1 Saund. 131; the superior courts and their jurisdiction; Tregany v. Fletcher, 1 Lord Raym. 184; and course of proceeding; Dobson v. Bell, 2 Lev. 176; and the privileges of their officers; Ogle v. Norcliffe, 2 Lord Raym. 869; the beginning and end of term; Estwicke v. Cooke, 2 Lord Raym. 1557; 1 Saund. 300 d. (n). 5th ed.; general customs, as those of gavelkind and borough English; Clements v. Scudamore, 2 Ld. Raym. 1025: the limits of ecclesiastical jurisdictions; Adams v. Terretenants of Savage, 2 Ld. Raym. 854; the limits of counties; 2 Inst. 557. Deybel's case, 4 B. and A. 248 ; the days of festivals appointed by the calendar; Brough v. Perkins, 6 Mod. 81; and the number of days in a particular month. 1 Rol. Ab. 524.

The courts will not notice judicially the nature and jurisdiction of inferior courts; Moravia v. Sloper, Willes, 37; nor foreign laws; Mostyn v. Fabrigas, Cowp. 174; nor the seal nor proceeding of a foreign court; Henry v. Adey, 3 East, 221; Ganer v. Lady Lanesborough. Peake, 17; nor the laws of the colonies; Wey v. Yally, 6 Mod. 194; nor the King's proclamation, without production of the Gazette; Van Omeron v. Dowick, 2 Campb. 44; nor particular customs, as those of London; Argyle v. Hunt, 1 Str. 187, Wiseman v. Cotton, 1 Sid. 138; nor that a particular town is within a certain diocese; R. v. Simpson, 2 Ld. Raym. 1379; nor the local situation of a town in a county; Deybel's case, 4 B. and A. 243; nor that a particular town, as Dublin, is in Ireland; Kearney v. King, 2 B. and A. 303: nor the sheriffs' book. Russell v. Dickson, 6 Bingh. 442. Though the court will take judicial notice of the articles

of war which are printed by the King's printer; Bradley v. Arthur, 4 B. and C. 304, R. v. Withers, cited 5 T. R. 446; yet the book called "Rules and Regulations for the Government of the Army," will not be judicially noticed. Bradley v. Arthur, 4 B. and C.

304.⚫

THE SUBSTANCE OF THE ISSUE ONLY NEED

BE PROVED.

The substance of the issue joined between the parties need alone be proved. 1 Phill. Ev. 190. Thus, on a count against a sheriff for a voluntary escape, the plaintiff may prove a negligent escape. Bonafous v. Walker, 2 T. R. 126. So on a count on a

policy for a total loss, he may prove a partial loss. Gardiner v. Croasdale, 2 Burr. 904. So if a plea in trespass allege two matters, either of which amounts to a justification, proof of one of them is sufficient, though they are both put in issue by the replication. Spilsbury v. Micklethwaite, 1 Taunt. 146. In an action on a bond, the condition of which is, that the obligor will not cut down any trees, if the plaintiff assigns a breach, that the obligor cut down twenty trees, he may prove that part of that number only were cut down. Co. Litt. 282 (a). In slander, the plaintiff is entitled to a verdict on proof of some of the actionable words laid. Compagnon v. Martin, 2 W. Bl. 790. In replevin, the defendant, who avows for rent arrear, is entitled to a verdict, though he prove less to be in arrear than he has alleged. Harrison v. Barnby, 5 T. R. 248. When an averment is divisible, it is sufficient to prove one part of it. Thus, where in a declaration for a false return to a fi. fa. against the goods of A. and B. it was alleged, that A. and B. had goods within the Bailiwick, it was held sufficient to prove that either A. or B. had goods. Jones v. Clayton, 4 M. and S. 349. The doctrine of variances in general depends upon the rule that the substance of the issue need only be proved.

Variance-amendment.] By a late act, the court has the power of ordering the record to be amended in case of variance. By 9 Geo. IV. c. 15, it is enacted, that it shall and may be lawful for every court of record holding pleas in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer, and general jail delivery in England and Wales, the town of Berwick upon Tweed, and Ireland, if such court or judge shall see fit to do so, to cause the record on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the

10 Eng. Com. Law Reps. 340.