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Variance in the Parties.


mentioned, or in such manner as may be prescribed by any special order, and the proceedings, as against such party, shall be deemed to have begun only on the service of such writ or notice.” Rule 12, “Any application to add or strike out or substitute a plaintiff or defendant may

be made to the court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner.” And by 0. xxi., r. 20,“No plea or defence shall be pleaded in abatement.” It seems that any objection as to parties which was formerly taken by plea in abatement, must now be taken by the application for an order under 0. xvi., r. 11. Kendall v. Hamilton, 4 Ap. Ca. 504, 516, per Ld. Cairns, C. ; before the trial ; Sheehan v. Gt. E. Ry. Co., 16 Ch. D. 59; the plaintiff now being able to join as a co-defendant any person to whose nonjoinder as a co-plaintiff exception is taken. Id. 63. See Luke v. S. Kensington Hotel Co., îl Ch. D. 121, C. A. Two or more persons may under 0. xvi., r. 1, as co-plaintiffs, bring an action of libel, although they are not jointly interested. Booth v. Briscoe, 2 Q. B. D. 496, C. A.

A party can only be added under rule 2 where there has been a bonâ fide mistake ; Clowes v. Hilliard, 4 Ch. D. 413; a mistake of law is sufficient. Duckett v. Gover, 6 Ch. D. 82.

A plaintiff will not be added unless either his written (see r. 11, ante, p. 86) consent has been obtained, or terms necessary for his indemnity have been offered to him. Turquand v. Fearon, 4 Q. B. D. 280. A defendant may be added under rule 4, although alternative relief is claimed against him which is inconsistent with that claimed against the other defendant. Child v. Stenning, 5 Ch. D. 695, C. A. As to amendment of misjoinder of husband, suing with his wife in respect of her separate estate, see Roberts v. Evans, 7 Ch. D. 380.

Although the misjoinder or nonjoinder of parties is no longer fatal to the action, it is still necessary to know whether the proper parties are before the court at the trial, as otherwise an amendment may be required under 0. xvi., r. 11, ante, p. 86, which will sometimes involve the adjournment of the trial. The following cases relating to parties are therefore retained. Where three persons agreed to be jointly interested in certain goods, but that they should be bought by one of them in his own name only, and he made the contract accordingly ; it was held that all the three might sue for a breach of that contract; Cothay v. Fennell, 10 B. & C. 671 ; for the action may be maintained either in the name of the person who actually made the contract, or in the name of the parties really interested ; Skinner v. Stocks, 4 B. & A. 437; Clay v. Southern, 7 Exch. 717 ; 21 L. J., Ex. 202. But, regularly, on a written contract by A. “ on behalf of B.,” B. should be sued, and not A. ; Downman v. Williams, 7 Q. B. 103, Ex. Ch. ; Lewis v. Nicholson, infra; Collen v. Wright, 7 E. & B. 301 ; 26 L. J., Q. B. 147, Ex. Ch. ; 8 E. & B. 647 ; 27 L. J., Q. B. 215; Jenkins v. Hutchinson, 13 Q. B. 744; unless A. be the real principal, and proof of this lies on the plaintiff. Thus, if A. falsely represents himself as agent of a person not named, being really himself the principal, he may then be sued as such. See Carr v. Jackson, 7 Exch. 382 ; 21 L. J., Ex. 137. So the real principal may sue on a contract in which he calls himself agent of a third person, unnamed. Schmalz v. Avery, 16 Q. B. 655 ; 20 L. J., Q. B. 228. But a party contracting as agent of B. cannot be sued personally as principal, if he be neither authorized by B., nor be himself the real principal ; the only remedy against him will be for the false representation or breach of warranty of authority. Lewis v. Nicholson, 18 Q. B. 503 ; 21 L. J., Q. B. 311. Unless indeed B. has no existence, in which case the agent is personally liable. Kelner v. Baxter, L. R., 2 C. P. 174. A del credere agent selling for a disclosed principal cannot sue in his own name. Bramble v. Spiller, 21 L. T., N. S. 672, C. P.; nor can a broker. Fairlie v. Fenton, L. R., 5 Ex. 169. The fact of the contracting party being called in the contract the agent of a named principal does not necessarily show that he ought not to be the party to a suit on the contract, although he be really such agent: it is a question of intention arising on the construction of the contract itself ; " and it may be laid down as a general rule that where a person signs a contract in his own name without qualification, he is primâ facie to be deemed to be a person contracting personally ; and in order to prevent this liability from attaching, it must be apparent from the other portions of the document, that he did not intend to bind himself as principal." 2 Smith’s L. Cases, 8th ed. p. 400, notes to Thomson v. Davenport; Dutton v. Marsh, L. R., 6 Q. B. 361, 362 ; Lennard v. Robinson, 5 E. & B. 125 ; 24 L. J., Q. B. 275; Gray v. Raper, L. R., 1 C. P. 694; Southwell v. Bowditch, 1 C. P. D. 374, C. A. ; Gadd v. Houghton, 1 Ex. D. 357, C. A. In these two last cases, though the agent signed without qualification, the contract showed that the intention was that he should not be bound personally, and in the latter case the decision in Paice v. Walker, L. R., 5 Ex. 173, was doubted. It has however since been followed in Hough v. Manzanos, 4 Ex. D. 104. See further Wagstaff v. Anderson, 5 C. P. D. 171, 175, C. A., per Bramwell, L. J. As to admissibility of evidence of custom to charge a broker personally, vide ante, p. 25.

Where an attorney carried on business under the firm of “A. and Son," the son not being in fact a partner, but only a clerk, it was held that A. might sue in his own name for the amount of a bill for business done. Kell v. Nainby, 10 B. & C. 20. An agent who purchases for an unnamed principal (the bought and sold notes being made out in the agent's name) may, on the renunciation of the contract by his principal, sue for the non-delivery of the goods in his own name. Short v. Spackman, 2 B. & Ad. 962. Provisional directors of a proposed company invited applications for shares to a committee of management appointed by and from themselves. The defendant applied for and received shares on the terms that he should pay a deposit, and got a form of receipt for the deposit on account of the “provisional committee.” Held that the action to recover the deposit should be by the provisional committee of directors at large, and not by the committee of management. Woolmer v. Toby, 10 Q. B. 691.

Plaintiff may join, as co-defendant, a dormant partner not known to him at the time of the contract, even where there was a written agreement (not under seal) to which such partner was not party. Drake v. Beckham, 11 M. & W. 315, Ex. Ch. But this does not apply to the case of a bill of exchange or promissory note, see the Bills of Exchange Act, 1882, s. 23; and if the agreement was in terms with “A and B. and the survivor of them,” it cannot be stated as one between A. and C. (the dormant partner) and the survivor of them. Beckham v. Knight, 1 M. & Gr. 738 ; De Mautort v. Saunders, 1 B. & Ad. 398.

Where a married woman deposited the moneys of her husband with a banker in the name of a child under age, it was held that the husband might sue the bankers for money had and received. Calland v. Loyd, 6 M. & W. 26.

By the Bankruptcy Act, 1883, s. 114, “Where a bankrupt is a contractor in respect of any contract jointly with any person or persons, such person or persons may sue or be sued in respect of the contract, without the joinder of the bankrupt.”

Local venue. — By Rules, 1883, 0. xxxvi., r. 1, " there shall be no local venue for the trial of any action except where otherwise provided by statute." Every action shall be tried in the county or place named on the statement of claim, or if there be none, by a notice in writing served on the defendant;

Local Venue.- Onus Probandi.


if no place is named, the trial is to be in Middlesex. In either case the court or a judge may order the trial to be elsewhere.

The words in italics are new, and thus local venue, which was entirely abolished by Rules, 1875, 0. xxxvi., r. 1, is re-established in those cases in which the action is required by statute to be tried in a certain county. In such cases the objection that the venue is wrong must be raised by the defence, as it would be likely to take the plaintiff by surprise. Rules, 1883, 0. xix., r. 15. The objection may, however, arise under the defence of not guilty by statute, e.g., under stat. 11 & 12 Vict. c. 44, s. 10, for by 0. xix., r. 12, that defence has the same effect as a plea of not guilty by statute had.

If in a local action the objection of wrong venue is properly taken, the defendant will be entitled to the verdict.

Where a county has for the purpose of the assizes been divided by Order in Council, under 3 & 4 Will. 4, c. 71, s. 3, each division is, for the purpose of venue, to be treated as a separate county. Atkinson v. Hornby, cited 9 Q. B. 978. Lancashire has, under that Act, been divided into three divisions, and Yorkshire into two.


et seq.

Generally he who asserts a fact is bound to prove it, if there be no presumption in favour of it; and a negative need not ordinarily be proved. Ross v. Hunter, 4 T. R. 33; Calder v. Rutherford, 3 B. & B. 302. In an action against a solicitor for negligently letting judgment go by default, after the plaintiff has proved the default, it lies on the defendant to show good ground for it, and not on the plaintiff to show that there was a good defence. Godefroy v. Jay, 7 Bing. 413. See a fuller explanation of this rule in Best on Evid. S$ 269, et seq. As to presumptions, vide ante, pp. 32,

It must, however, be borne in mind, that regard must be had to the effect and substance of the issue, and not to its grammatical form. Soward v. Leggatt, 7 C. & P. 613, per Ld. Abinger ; Doe d. Worcester School, dc. Trustees v. Rowlands, 9 C. & P. 734, per Coleridge, J.; Belcher v. MʻIntosh, 8 C. & P. 720, per Alderson, B. And where the assertion of a negative is part of the plaintiff's case he must prove it, as the want of reasonable and probable cause in an action for malicious prosecution. Abrath, v. N. E. Ry. Co., 11 Q. B. D. 440, C. A.

Where the presumption is in favour of the affirmative, as where the issue involves a charge of a culpable omission, it is incumbent on the party making the charge to prove it; for the other party shall be presumed innocent until proved to be guilty. As to the presumption of innocence, see Best on Evid. $$ 314, 346. Thus where, in a suit for tithes in the spiritual court, the defendant pleaded that the plaintiff had not read the Thirtynine Articles, it was held that the proof of the issue lay on the defendant. Monke v. Butler, 1 Roll. Rep. 83. See also R. v. Hawkins, 10 East, 211. So in an action by the owner of a ship for putting combustibles on board, “without giving due notice thereof," it was held that the plaintiff was bound to prove the want of notice, as the omission to give such notice would have amounted to criminal negligence on the part of the defendant. Williams v. E. India Co., 3 East, 193. See further ante, p. 41. In actions for negligence it lies on the plaintiff to prove it, and not on the defendant to show reasonable care. Marsh v. Horne, 5 B. & C. 327. See further, post, Action for negligence ; Evidence of negligence. So, again, where the issue is as to the legitimacy of a child born in lawful wedlock, it is incumbent on the party asserting the illegitimacy to prove it; Banbury Peerage Case, 1 Sim. & St. 153; and where the issue is on the life of a person who is proved to have been alive within seven years, the party asserting his death must prove it; see Presumptive evidence, ante, pp. 40, et seq.

It has been stated to be a rule that, where the affirmative is peculiarly within the knowledge of the party charged, the presumption of law in favour of innocence is not allowed to operate, but the general rule applies, viz., that he who asserts the affirmative is to prove it, and not he who avers the negative. 3 Russell on Crimes, 4th ed. 277. Thus it has been said that in an action of a covenant for not insuring premises against fire, it lies on the defendant to prove that he has insured. Doe d. Bridger v. Whitehead, 8 Ad. & E. 576, per Littledale, J. Accord. Toleman v. Portbury, L. R., 5 Q. B. 294, per Willes, J. So in an action on the game laws, though the plaintiff must aver that the defendant was not duly qualified, yet he cannot be called upon to prove the want of qualification. Spieres v. Parker, 1 T. R. 145 ; R. v. Turner, 5 M. & S. 206. In an action against a person for practising as an apothecary without having obtained a certificate according to 55 Geo. 3, c. 194, the proof of certificate was held to lie upon the defendant. Apothecaries' Co. v. Bentley, Ry. & M. 159. It has, however, been observed, that the act itself seems to throw upon him such proof. Elkin v. Janson, 13 M. & W. 662, per Alderson, B. So where, on a conviction for selling ale without a licence, the only evidence given was that the party sold ale, and no proof was offered of his want of a licence; it was held, that the conviction was right; for that the informer was not bound to sustain in evidence the negative averment; and it was said by Abbott, C. J., that the party thus called on to answer sustains no inconvenience from the general rule, for he can immediately produce his licence ; whereas, if the case is taken the other way, the informer would be put to considerable inconvenience. R. v. Harrison, Paley on Convictions, 2nd ed., 45, n. From the observations of the court in Doe d. Bridger v. Whitehead, infra, it would seem that the burden of proof in the instances above cited of convictions, &c., lies on the defendant, not because the matter is peculiarly within his knowledge, for that cannot vary the rule of the law, but because the legislature has in those cases, by a general prohibition, made the act of the defendant primâ facie unlawful. See also Abrath v. N. E. Ry. Co., 11 Q. B. D. 440, 457, per Bowen, L. J. And in actions for the recovery of possession of land, on the ground of forfeiture, it always rests on the lessor, the plaintiff, to show that the estate which he has granted has been forfeited by the tenant. Toleman v. Portbury, infra. Thus, where the action is brought on a breach of a condition to insure “in some office in or near London," it lies on the plaintiff to prove the omission. Doe d. Bridger v. Whitehend, 8 Ad. & E. 571 ; see also Price v. Worwood, 4 H. & N. 512 ; 28 L. J., Ex. 329. So where A. was lessee of a dwelling-house under a condition not to permit a sale by auction on the premises without his lessor's consent in writing, and he sublet to the defendant with the lessor's consent, and subsequently assigned his goods on the premises to X., who there sold them by auction"; it was held that, in the absence of evidence that the sale was by A.'s permission, there was no forfeiture, and further, that the onus was thrown on the lessor of showing the non-existence of a written consent to the sale. Toleman v. Portbury, L. R., 5 Q. B. 288, Ex. Ch. Under the Rules, 1883, 0. xxi., r. 4, ante

, p. 73, the plaintiff must prove the damages he alleges he has sustained, unless the defendant expressly admit them. In an action on a common money bond, the plaintiff need not show that the bond is forfeited ; it rests on the defendant to prove payment. Penny v. Foy, 8 B. & C. 11, 13.

The question of the onus of proof is one which may arise in any stage of a trial, and is therefore not necessarily connected with, nor in all cases deterProof of Documents.

91 mined by, the same considerations as the right to begin on trials at Nisi Prius ; as to which see further post, sub tit. Course of evidence and practice at Nisi Prius ; Right to begin.

In many cases there are statutable provisions regulating the burden of proof. See them collected in 1 Taylor Evid., § 345; but these chiefly relate to criminal proceedings.


Under the present head will be considered the mode in which various kinds of documents, usually adduced in evidence, must be proved.

As a general rule, before a document can be proved at a trial it must itself be produced in court, but there are certain documents of a public character which either at common law or by statute are provable by copies without production of the original in court.

Before enumerating the means of proving the several documents under their respective heads, it will be convenient to show here when and how this method of proof is admissible.


The various kinds of copies by which original documents may in general be proved, may be classed under four heads; viz. : 1. Exemplifications ; 2. Office copies ; 3. Examined copies ; and 4. Certified copies.

There are certain statutory provisions for proving particular documents ; these will be found under the title of the documents to which they respectively apply.

Proof by Exemplification. Exemplifications are of two kinds :—under the Great Seal, or under the seal of the court in which the record is preserved. An exemplification under the Great Seal may be obtained of any record of the Court of Chancery, or of any record which has been removed thither by certiorari; but private deeds, so exemplified, will not be admitted in evidence. B. N. P. 227. An exemplification produced from the proper custody, and purporting to exemplify a commission from the crown, is evidence, though the seal has been lost. Beverley, Mayor of, v. Craven, 2 M. & Rob. 140. An exemplification under the seal of the Exchequer is evidence of a commission out of that court and of the return thereto, in respect of crown lands. Tooker v. Beaufort, Dk. of, Sayer, 297. So an exemplification of a recovery under the seal of the Great Sessions of Wales. Olive v. Guin, 2 Sid. 145. So of Chester, S. C. Id. And the seals of those courts (it is said) prove themselves. Com. Dig. Testm. (A. 2), ante, p. 76. Exemplification may be given of a lost probate. Shepherd v. Shorthose, 1 Stra. 412.

Proof by Office Copy. An office copy, that is, a copy made by the officer having custody of the document, always was, in the same court and in the same cause, equivalent to the document of which it was a copy. Per Lord Mansfield, in Denn d. Lucas v. Fulford, 2 Burr. 1179; B. N. P. 229. And for this purpose, the judge who tried the issue at Nisi Prius was considered as acting under the

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