138

PRESUMPTION OF SURRENDER OF LEASE.

§ 139. A jury may also, under certain circumstances, presume the surrender of a lease by operation of law; for, although the production by the lessor of a cancelled lease will not warrant the presumption of such a surrender as will satisfy the Statute of Frauds (c); yet when that fact was coupled with proof that a new lease had been granted to another party, who, like the former lessee, was a mere trustee for the same cestui que trusts, and it further appeared, that when leases were renewed from time to time, the usage was to send in the old lease to be cancelled in the lessor's office, the court held, that from these combined circumstances the jury might infer, that the second lease was granted with the assent of the former tenant, which according to a recognised case (d), was as valid a surrender of the first interest by operation of law, as if the former tenancy had been determined in writing (e).

§ 140. The same principle has been applied in America to matters belonging to the personalty. Thus, where one town, after being set off from another, had continued for fifty years to contribute annually to the expense of maintaining a bridge in the parent town, this was held sufficient to justify the presumption of an agreement to that effect (ƒ). And, in general, it may be said, that long acquiescence in any adverse claim of right is good ground, on which a jury may presume, that the claim had a legal commencement; since it is contrary to general experience for one man long to continue to pay money to another, or to perform any onerous duty, or to submit to any inconvenient claim, unless in pursuance of some contract, or other legal obligation.

§ 141. Again, in actions of trover, the jury will be advised, if not directed, to presume a conversion from unexplained evidence of a demand and refusal (g); and if an action be brought against a

(c) Doe v. Thomas, 9 B. & C. 299; 4 M. & R. 218, S.C.; Roe v. Archbp. of York, 6 East, 86. (d) Thomas v. Cook, 2 Stark. R. 408; 2 B. & A. 119, S.C. (e) Walker v. Richardson, 2 M. & W. 882.

(ƒ) Cambridge v. Lexington, 17 Pick. 222. See also Grote v. Grote, 10 Johns. 402; Schauber v. Jackson, 2 Wend. 36, 37.

(g) Caunce v. Spanton, 7 M. & Gr. 903; Stancliffe e. Hardwick, 2 C. M. & R. 1, 12; Thompson v. Trail, 2 C. & P. 334; 6 B. & C. 36 ; 9 D. & R. 31, S. C. Thompson v. Small, 1 Com. B. 328; Davies v. Nicholas, 7 C. & P. 339; Clendon v. Dinneford, 5 C. & P. 13; 3 St. Ev. 1160, 1161.

PRESUMPTIONS OF FACT.

139

husband for goods supplied to his family or his wife on the order of the latter, they will do well to infer, in the absence of evidence to the contrary, that the wife gave the order as her husband's agent, provided she were living with him at the time, and the articles were neither excessive in quantity, improvident in quality, or extravagant in price (h). In fine, this class of presumptions embraces all the connexions and relations between the facts proved, and the hypothesis stated and defended, whether they are mechanical and physical, or of a purely moral nature. It is that which prevails in the ordinary affairs of life, namely, the process of ascertaining one fact from the existence of another, without the aid of any rule of law; and therefore it falls within the exclusive province of the jury, who are bound to find according to the truth, even in cases where the parties and the court would be precluded by an estoppel, if the matter were so pleaded. They are usually aided in their labours by the advice and instructions of the judge, more or less strongly urged, at his discretion; but the whole matter is free before them, unembarrassed by any considerations of policy or convenience, and unlimited by any boundaries but those of truth; to be decided by themselves, according to the convictions of their own understanding.

(h) Lane. Ironmonger, 13 M. & W. 368; recognising Freestone v. Butcher, 9 C. & P. 647, per Lord Abinger; Atkins v. Curwood, 7 C. & P. 757; Waithman v. Wakefield, 1 Camp. 120, per Lord Ellenborough.

140

RULES GOVERNING PRODUCTION OF EVIDENCE.

PART II.

OF THE RULES WHICH GOVERN THE PRODUCTION OF TESTIMONY.

CHAPTER I.

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

AND OF

§ 142. THE production of evidence to the jury is governed by certain principles, which may be treated under four general rules. The first of these is, that the evidence must correspond with the allegations; but that it is sufficient if the substance only of the issues be proved. The second is, that the evidence must be confined to the points in issue. The third is, that the burden of proving a proposition at issue lies on the party holding the substantial affirmative. And the fourth is, that the best evidence, of which the case in its nature is susceptible, must always be produced. These rules we shall now consider in their order.

§ 143. The pleadings, at common law, are composed of the written allegations 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, they must be tried by the jury, and 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 question to be tried, and as this object would be defeated, if either party was to be at liberty to prove facts essentially different from those which he himself 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 at once apparent, and the only remaining question concerns its limitation and extent. Great strictness was formerly

ABUSES OF OLD LAW OF VARIANCE.

141

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. Thus, in an action of assumpsit for the breach of warranty of a horse, 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 (a). 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 (b). 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 evidence, the expressions really used in the libel, which had been destroyed, were "ignorance or inattention" » (c).

§ 144. The attention of the legislature being at length drawn to the flagrant injustice which was thus constantly occasioned, a partial remedy was provided by the act of 9 Geo. 4, c. 15 (d), which

(a) Jones v. Cowley, 4 B. & C. 445, declared, most justly, by Alderson, B., to be " a great disgrace to the English law," in Hemming v. Parry, 6 C. & P. 580. (b) Goodtitle v. Lammiman, 2 Camp. 274.

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

(d) This act, after reciting that "great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now, in any case, be amended at the trial, and in some cases cannot be amended at any time:" for remedy thereof, enacts, "that it shall and may be lawful for every court of record holding plea in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer and general gaol

142

ACT OF 9 GEO. 4, C. 15.

enacts, that every court of record in civil actions, any judge at Nisi Prius, and any court of oyer and terminer and general gaol delivery, whether in England or Ireland, may cause the record, on which any trial may be pending in a civil action, or in an indictment or information for any misdemeanour-when a variance shall appear between any matter in writing or in print produced in evidence, and the recital thereof upon the record-to be forthwith amended in such particular, upon payment of such costs, if any, as the judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared.

§ 145. As this statute, though a salutary measure as 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, by the act of 3 & 4 Will. 4, c. 42. Under the 23rd section of this act (e),

delivery in England, Wales, Berwick-upon-Tweed, and Ireland, if such court or judge shall see fit so to do, 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 misdemeanour, 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 trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party, as such judge or court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared; and, in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly."

(e) The exact words are these: the 23rd section, after reciting that "great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances as to some particular or particulars between the proof and the record, or setting forth on the record or document on which the trial is had, of contracts, customs, prescriptions, names, and other matters and circumstances not material to the merits of the case, and by the mis-statement of which the opposite party cannot have been prejudiced, and the same cannot in any case be amended at the trial, except where the variance is between any matter in writing or in print produced in evidence and the record; and that it is expedient to allow such amendments as hereinafter mentioned to be made on the trial of the cause;" enacts, "that it shall be lawful for any court of record, holding plea in civil actions, and any judge sitting at Nisi Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such court or judge, in any civil action, or in any information in the