there may be an election in some instances. In the code states the one civil action has taken the place of the various forms of common law actions, but many of the distinctions are still important in determining the rights of the parties and the theory of the case. So, in some jurisdictions, even where trespass on the case is still maintained as a form of action the distinction between it and trespass has been abolished so far as the use of the different forms is concerned, yet it has been held that the rights and liabilities of the parties remain the same.10 § 1922. Distinguished from other actions-Election.-The action of case in its narrowest sense is distinguished from assumpsit in that the former is for the tort while the latter is an action ex contractu. The same distinction exists between case and covenant. It follows, that even where one of these forms of action ex contractu is in a sense concurrent with case, the theory upon which recovery is sought is very different, and the proof must sustain the remedy adopted. § 1923. Burden of proof-Plaintiff's case.-In general, in an action on the case, all the material allegations upon the record are put in issue by the plea of not guilty, and the plaintiff is bound to prove so much of the case, as stated on the record, as will entitle him in point of law to compensation in damages. But a variance in the degree and extent of the injury proved from that alleged, will not preclude the plaintiff from recovering, provided he proves a legal cause of action, corresponding with averments on the record, although differing in extent; for although the jury would not be warranted in finding that to be proved which is not proved at all, they may justly find that which is alleged, to have been proved in part, and award damages accordingly. As a general proposition, the plaintiff is entitled to a verdict, in the absence of anything to the contrary, if he ridge v. Allen, 2 Ired. L. (N. Car.) 206; Simpson v. Hand, 6 Whart. (Pa.) 311; Claflin v. Wilcox, 18 Vt. 605; Howard v. Tyler, 46 Vt. 687. 10 Blalock v. Randall, 76 Ill. 224, the statutes do not abrogate the rule that the proof must correspond with the issue; Gay v. De Werff, 17 Ill. App. 417; Chrisman v. Carney, 33 Ark. 316. proves such averments as constitute the ground of action alleged, although no proof be given of other averments which show that an injury has been done to a greater degree and extent, or which are immaterial to the cause of action.11 Thus, in an action for slander he is entitled to recover if he proves some of the words as said which are actionable, although he fails in proving others which are also actionable.12 So, although he does not succeed in proving circumstances in aggravation, or the extent of damages as laid in the declaration.13 In an action for damages on account of the negligence of the defendant, for instance, the burden of proof is upon the plaintiff to show the negligence charged, and he cannot recover upon an entirely different theory or for entirely different negligence.1 In some jurisdictions the burden is also upon the plaintiff to show freedom from contributory negligence. The allegation of the particular day on which an injury was committed is not usually material, and it is generally sufficient if it is proved to have been before the commencement of the action,15 and within the time prescribed by the statute of limitations. "But if the injury be continuous in its nature, or has been repeated, it seems that the plaintiff, if there be but one count alleging a continuance, or repeated acts within a time specified, may either give in evidence upon that count one act anterior to the first day specified in the declaration, or any number within the limits assigned; and if the declaration contains several counts, he may give in evidence so many acts, each anterior to the first day specified in each respective count."16 But the pleadings and the proof must substantially correspond in all particulars essential to constitute a cause of action on the theory adopted.17 "Jones v. Givin, 185 Gil. L. E. 229. 12 Compagnon v. Martin, 2 W. Bl. 790, Hardr. 470. "Gardiner v. Crossdale, 2 Burr. 904, 1 W. Bl. 198. 14 Waldthier v. Hannibal &c. R. Co., 71 Mo. 514; Price v. St. Louis &c. R. Co., 72 Mo. 414; Birmingham &c. R. Co. v. Clay, 108 Ala. 233, 19 So. 309; McPherson v. Pac. &c. R. Co., 20 Ore. 486, 26 Pac. 560; Carter v. Kansas City &c. R. Co., 65 Iowa 287, 21 N. W. 607; Cleveland &c. R. Co. v. Wynant, 100 Ind. 160; Terre Haute &c. R. Co. v. McCorkle, 140 15 Manchester V. Vale, 1 Will. 16 2 Starkie Ev. § 357. 1 17 Manning v. Wells, 9 Humph. (Tenn.) 746, 51 Am. Dec. 688; Wilkinson v. Moseley, 18 Ala. 288; Putnam v. Kingsbury, 16 Pick. (Mass.) § 1924. Several plaintiffs or defendants.-As a general rule a cause of action must be shown in all the plaintiffs, and they must recover, if at all, in respect of a general joint damage, for the courts will not take cognizance of separate and distinct injuries in one and the same action.18 The plaintiffs must therefore prove a joint cause of action, such as damage done to joint property,19 joint slander of the plaintiffs in their trade or business.20 But it has been held that two persons may join, although their interests be several, if the injury complained of was a joint damage to both.21 Where the damage is laid as a joint damage to several plaintiffs, and appears in evidence to be a separate damage to some of them only, it has been held that they must be non-suited; as, where the declaration alleged a slander of the plaintiffs in their joint trade, and it appeared in evidence that the words were addressed personally to one only.22 It is a general rule, however, as to the defendants, that in action of tort one defendant may be acquitted and another found guilty, torts being several in their nature.23 Yet where the action is virtually founded upon a breach of contract, doubts have been entertained upon this point.24 371; Gay v. De Werff, 17 Ill. App. 417; Terre Haute &c. R. Co. v. McCorkle, 140 Ind. 613, 40 N. E. 62; Weall v. King, 12 East 452, 11 Rev. R. 455. 18 Cabell v. Vaughan, 1 Saund. 291; Coryton v. Lithbye, 2 Saund. 116, n. 2; Weller v. Baker, 2 Wils. 423; Ward v. Bampston, 3 Lev. 362; but see, Fairbanks v. San Francisco &c. R. Co., 115 Cal. 579, 47 Pac. 450. 19 If one tenant in common only be sued in trespass, trover or case, for anything concerning the land in common, the defendant may plead the tenancy in common in abatement, Cabell v. Vaughan, 1 Saund. 291, e. 20 Cook v. Batchelor, 3 B. & P. 150. 21 Coryton v. Lithbye, 2 Saund. 116, a.; Ward v. Bampton, 3 Lev. 362; McClurg v. Ingleheart, (Ky.) 33 S. W. 80; Perkins v. Tilton, 53 Neb. 440, 73 N. W. 930; Hays v. Farwell, 53 Kans. 78, 35 Pac. 794. 22 Solomons v. Medex, 1 Starkie's C. 191; and see, Barnes v. Holloway, 8 Term R. 150; Hawkes V. Hawkey, 8 East 427; Helly v. Hender, 3 Bulst. 83; Rex v. Berry, 4 Term R. 217. 23 Cabell V. Vaughan, 1 Will. Saund. 291, d., where the cases on the subject are collected. As to whether the duty, the breach of which causes the injury, must be joint there is some difference of opinion, and different views are taken in different jurisdictions, but the better rule seems to be that it need not reasonably be so. Charman v. Lake Erie &c. R. Co., 105 Fed. (U. S.) 449; Lake Erie &c. R. Co. v. Charman, 161 Ind. 95, 99. $1925. Negligence of agent.-In an action for negligence of a agent, it is a general rule that an allegation of negligence of the defendant is supported by proof of negligence in his agent.25 Thus, & declaration alleging that the defendant so negligently drove his eart that the plaintiff's horse was killed, is supported by proof that the defendant's servant in the scope of his employment and duty, drove the cart and occasioned the injury.26 But it does not follow that it s sufficient to allege that the act complained of was that of an emple of the defendant, nor that it is sufficient to prove that it was, it is also shown that the employé was acting in the line or serpe his duty, or that for some good reason the defendant is liable fr negligence complained of.27 § 1926. Evidence for the defendant.-As this action i on the plaintiff's title in justice and equity to receive a e in damages, the defendant may, under the general issu law, except in some instances depending on peculiar en give in evidence any facts or circumstances which ir science are sufficient to bar the plaintiff's claim.28 T. fenses are: that of a justification, in an action for of the truth of the words; the statute of limitation ing of a prisoner on fresh pursuit.29 A few of the illustrate the rule and show the extent to whi admissible for the defendant at common law. beating the plaintiff's horse, per quod, he was pers it, the defendant was admitted to prove the: 1the plaintiff were before the defendant's from coming to load, wherefore he whipped Michael v. Allestree, 2 Lev. 172; 445, E = Koch Indianapolis &c. R. Co. v. Houlihan, Brucker v. Fromont, 6 Term R. 659; and see, Tubervil v. Stamp, 1 Ld. Raym. 264, Skinn. 681, Carth. 425, 1 Salk. 13. Cincinnati &c. R. Co. v. Voght, 26 Ind. App. 665, 60 N. E. 797. So, in an action for obstructing the plaintiff's lights, it v the defendant might, under the general issue, prove built upon an ancient foundation according to the custo of London.31 So a release is evidence."32 In many j however, the rule is more stringent and more logical, an the defenses that were admissible under the general issue law must now be specially pleaded. § 1927. Evidence generally.-Questions as to the adn particular evidence are not materially different in such similar questions in other cases, and they are so numerous tempt will be made to consider them here, but, so far as t already sufficiently treated they will be considered under headings, such as negligence, slander and libel and other which case is a common remedy. It may be well, howe attention to some recent and somewhat peculiar cases. In c the declaration alleged a number of wrongful acts on the defendant, and that by reason of defendant's conduct the business was interrupted and injured, and evidence was h sible not only to show such acts, but also to show that by re of the postmaster had refused to deliver the plaintiff's ma and the railroad companies had refused to deliver freight In another, which was for damages for unlawful and viole session of a tenant by his landlord, evidence of the tempe position of the defendant and his wife, who committed t violence, was held admissible to sustain the allegation that tiff was kept out of possession by threats and violence, but i held that such evidence must be confined to acts and words with the subject matter of the action.34 31 Anonymous, Com. R. 273. 34 Baumier v. Antiau, 65 32 Bird v. Randall, 3 Burr. 1353, 31 N. W. 888. Two judges, from 2 Stark Ev. § 361. dissented from so much c 33 Oliver v. Perkins, 92 Mich. 304, cision as held the eviden 52 N. W. 609. sible. |