Effect and Proof of Particulars.

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evidence in his favour as to the date, origin, and nature of that item. In Rymer v. Cook, M. & M. 86 n., where the defendant put in particulars of the plaintiff's demand, containing an admission that he was indebted to the defendant in a certain sum, it was held that that admission was evidence. In Kenyon v. Wakes, 2 M. & W. 764, where a payment on account to the amount of 70l. was admitted in the particulars, and the jury found that 701. was all that was due, it was held that the particulars were properly received in evidence as an admission of the payment of that sum. See Boulton v. Pritchard, 4 D. & L. 117, infra, and Rowland v. Blaksley, 1 Q. B. 413. In Buckmaster v. Meiklejohn, 8 Exch. 634; 22 L. J., Ex. 242, particulars delivered with a plea of set-off, which had been withdrawn, were admitted in support of a replication of fraud to a plea puis darrein continuance. It would seem, however, that particulars can only be made use of as an admission in an issue upon the pleadings in respect of which they are delivered. Therefore, in Miller v. Johnson, 2 Esp. 602, where the notice of set-off contained an admission of a sale, this was not allowed to be taken as an admission of the sale upon the plea of never indebted. In Harington v. Macmorris, 5 Taunt. 229, an admission of the debt in the notice of set-off was not received in the issue raised upon non-assumpsit. And in Burkitt v. Blanshard, 3 Exch. 89, where a simple payment of 50l. was inserted in the particulars of set-off, Parke, B., expressed an opinion that the plaintiff could not have taken this as an admission of a part payment in order to prevent the operation of the Statute of Limitations.

Proof of particulars.] The particulars were formerly proved by the production and proof of the judge's order and the particulars themselves: and by proof of the signature of the party, his attorney, or agent. The R. G., H. T. 1853, r. 19, which directed that a copy of the particulars of demand and the defendant's set-off should be annexed by the plaintiff's attorney to the record at the time it is entered for trial, obviated the necessity of proving the delivery of them. Macarthy v. Smith, 8 Bing. 145. But the particulars were not thereby made part of the Nisi Prius record and incorporated with the pleading to which they were annexed. Booth v. Howard, 5 Dowl. 438; Ferguson v. Mahon, 9 Ad. & E. 245. The Rules, 1883, contain no provision similar to R. G., H. T. 1853, r. 19, supra (see O. xxxvi., r. 30), and it seems therefore that particulars, unless they are in the pleadings, or have been entered with them, must be proved in the same way as was done before 1853. If the defendant require to prove special indorsement under Rules, 1883, O. iii., r. 6, on the writ of summons, the copy writ, served on him, would, it seems, be primary evidence against the plaintiff; vide ante, p. 3, and post, p. 105.

If the particulars of demand refer to a fuller account already delivered (which it may do without restating it, ut semb. Hatchet v. Marshall, Peake, 172), the plaintiff ought either to enter the account also with the pleadings, or prove it at the trial. See 2 Chit. Prac., 12th ed. 1456. If the plaintiff delivers "further and better" particulars, in which he omits a specific credit given in his first, it seems that both should be annexed to the record; and if the second alone is annexed, the defendant may nevertheless prove the first in order to dispense with a plea of payment. Boulton v. Pritchard, 4 D. & L. 117. Where the particulars annexed differ from those delivered, the defendant may prove the latter, and confine the plaintiff to those. But if the defendant is not prepared to prove the real particulars, the plaintiff, if he obtains a verdict for any item not contained in them, is in peril of a new trial. Morgan v. Harris, 2 C. & J. 461. If none are annexed, the judge may order the plaintiff to annex them at Nisi Prius.

THE SUBSTANCE OF THE ISSUE ONLY NEED BE PROVED.

It was always the common law rule that the substance of the issue joined between the parties need alone be proved, and numerous illustrations of this principle will be found under various titles in this work.

Variances requiring amendment.] It is a general rule that a party must recover secundum allegata et probata, and cannot succeed upon a proof that differs from his allegation; if his proof so differ it is called a variance. Now, however, by Rules, 1883, O. xxviii., r. 1, either party may at any time be allowed to amend their pleadings, "and all such ainendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." Since this rule parties must not go to trial on the mere hope that a variance will be fatal. They ought to anticipate that all amendments will be allowed which are necessary to determine the real question in controversy, which both parties must have had in contemplation when the suit commenced. Examples of amendments that have been allowed will be found post, sub tit. Practice at Nisi Prius,— Amendment.

The only cases of variance which it is necessary to consider are those relating to parties.

Variance in the parties.] The objection on the ground of variance in the parties is now abolished by Rules, 1883. By O. xvi., r. 1, "All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiff's as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment; " rule 3 provides that the improper or unnecessary joinder of a co-plaintiff shall not defeat a set-off or counter-claim if the defendant prove it as against the other plaintiffs; rule 4 contains similar provisions with respect to defendants; rule 5 provides that it shall not be necessary for every defendant to be interested as to all the relief prayed for or as to every cause of action included in the action; by rule 6, the plaintiff may join as parties "all or any of the persons severally or jointly and severally liable on any one contract, including parties to bills of exchange and promissory notes." By rule 2 provision is made for the substitution or addition of a plaintiff in the case of a bona fide mistake. By rule 11, "No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter

Variance in the Parties.

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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 O. 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 O. 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., 11 Ch. D. 121, C. A. Two or more persons may under O. 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 bona 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 O. 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 prima 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. & W. 26.

Loyd, 6 M.

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, O. 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. court or a judge may order the trial to be elsewhere.

89

In either case the

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, O. 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 O. 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.

ONUS PROBANDI.

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. §§ 269, et seq. As to presumptions, vide ante, pp. 32, et seq. 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. M'Intosh, 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