174 



PLEADING, EVIDENCE AND DAMAGES. 



"warranty or 

 fraudulent 

 representa- 

 tion. 



Statement of 

 the breach. 



Statement of 

 the damage. 



and the variance be material to the merits of the case, 

 it may be that the judge at the trial will refuse to amend 

 on the ground that the defendant has been misled or 

 taken by surprise. Where an action on the case was brought 

 against a third party for a misrepresentation on the sale 

 of a horse, the declaration stated that the defendant war- 

 ranted the horse to be " sound and a good worker," and it 

 appeared in evidence that he warranted the horse " sound 

 in the wind," an objection was taken that the warranty 

 and misrepresentation alleged in the declaration were not 

 proved ; hut Mr. Baron Alderson said, " I think the declara- 

 tion is substantially proved, and therefore I shall direct 

 the record to be amended under the recent statute (2). 

 The variance relied upon by the defendant is not material 

 to the merits. The merits are, whether or no the defen- 

 dant made a fraudulent misrepresentation. It is proved 

 that he did ; and the terms of the misrepresentation are 

 not quite accurately stated in the declaration ; it is clear that 

 the defendant cannot have been misled by the statement. 

 If he had, I would not amend. But he comes here to de- 

 fend himself from the charge of having made a fraudulent 

 misrepresentation on the occasion of the sale, and whether 

 he represented the horse to be wholly sound, or merely 

 sound in the wind, makes no difference to the merits." 

 After this amendment a verdict was found for the 

 plaintiff (a). 



A breach must always be stated in the statement of 

 claim, so that the cause of complaint may appear (h). If 

 the contract be in the disjunctive, the breach ought to be 

 assigned that the defenaant did not do one act or other ; 

 as on a promise to deliver a horse by a particular day 07- 

 pay a sum of money (c). It is a rule in pleading that 

 the breach may in general be assigned in the negative of 

 the words of the contract ; and therefore it is not necessary 

 that the particular description of unsoundness should be 

 stated (d). 



In order to recover special damages it is necessary that 

 they be explicitly stated in the statement of claim, so that 



(;) 3 & 4 Will. 4, 0. 42, s. 23. 

 See now Order XXVIII. r. 12, of 

 R. S. C, 1883. 



[a) Mash T. Dcnsham, 1 M. & 

 Eob. 442. 



(J) Srickhead t. Archbishop of 

 York, Hob. 198, 233. 



(c) Com. Dig. Pleader, C. ; Wright 

 V. Johnson, 1 Sid. 440, 447; Aleherry 

 V. Walby, 1 Stra. 231. 



(d) Com. Dig. Pleader, C. 45 ; 

 and see 1 Chit. Pleading, 6th ed 

 172. 



