Principles and Practice of Pleading (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1857 Excerpt: ...point reserved at the trial. above case, evidence casting either doubt upon the Rules of Eviterms of the original agreement on the one hand, or pieSingsf imputing fraud to the defendant on the other. Such rules are indispensable in order to carry the object of the pleadings into effect. If either party, after passing by in his pleading a material point of his case, was allowed at the trial to suggest it or elicit it in evidence, and the jury were allowed to be influenced by it, all certainty as to the extent to which the parties should come prepared with evidence would be gone, and the object of the pleadings frustrated. There would be nothing to prevent a fraudulent plaintiff or defendant from drawing his pleadings in such a way as to mislead his opponent, and at the trial to take him by surprise, by setting up a case which, although without foundation, it might be impossible, unprepared, to refute. In such a state of things, instead of each party knowing before the trial that he had certain definite propositions to maintain or refute, as the case might be, and being therefore in a position safely to come prepared to meet these propositions only, neither would be safe unless he came prepared to meet every issue that might chance to be raised. It is, therefore, a rule that both parties shall raise by their pleadings the propositions upon which they mean to rely, and that upon this point the pleadings shall be conclusive. In the next place, the burden of proving a proposition The onus proin issue falls upon the party maintaining the affirmative: theonedleg-" the maxim being Ei incumbit probatio qui dicit, non qui ing the affirmative. negat. Thus, in the example above given, it lies with the defendant to give evidence of a release before the plaintiff ca...