ALLEGATA ET PROBATA
Meaning: The things alleged must agree with the things proved.
This rule applies to the proofs presented at trial, holding that such proofs have to be corresponding with what was alleged in the pleadings. Proving a fact not alleged is disallowed as a "variance."
The rule believed to be applied strictly in the Medieval period, but got relaxed in more recent times, so that the presented proofs need only to relate to the allegations. Variances to some immaterial degree become allowed.
For instance, in California, the rule is reflected in CCP 469, as explained in Murnane v. Le Mesnager, 207 Cal. 485 (Cal. 1929). Note that only material variance is prohibited.
Alternative forms: allegata and probata, secundum allegata et [and] probata.
Earliest US reference: My earliest find is the case Respublica v. Carlisle, 1 U.S. 35 (1778), yet the court there cites an earlier reference (labeled as "L. N. P. 21. 192. 3"). I failed to find or even identify this cite.
Latest US reference: Mastroddi v. Ventura Enters., 35 Phila. 520 (Pa. C.P. 1998).
Search index: 700/3000 {Lexis); Google gives 290,000 strict search results (as of 3-24-13).
By far, this legal maxim, Allegata et Probata, appears to be the most popular legal maxim in US decisions. Lexis returns 3000+ "soft" search results (words "allegata" and "probata" to appear in the same sentence) and 700+ results for the "strict" search of the exact combination ("allegata et probata"). There are 408 cases stating a more complete description, "secundum allegata et probata," which are included in the 700 strict search results.
There is an 8-page detailed article on the history and application of this doctrine in the Dr. Michael R.T. Macnair book "The Law of Proof in Early Modern Equity," starting from the page 46.
Meaning: The things alleged must agree with the things proved.
This rule applies to the proofs presented at trial, holding that such proofs have to be corresponding with what was alleged in the pleadings. Proving a fact not alleged is disallowed as a "variance."
The rule believed to be applied strictly in the Medieval period, but got relaxed in more recent times, so that the presented proofs need only to relate to the allegations. Variances to some immaterial degree become allowed.
For instance, in California, the rule is reflected in CCP 469, as explained in Murnane v. Le Mesnager, 207 Cal. 485 (Cal. 1929). Note that only material variance is prohibited.
Alternative forms: allegata and probata, secundum allegata et [and] probata.
Earliest US reference: My earliest find is the case Respublica v. Carlisle, 1 U.S. 35 (1778), yet the court there cites an earlier reference (labeled as "L. N. P. 21. 192. 3"). I failed to find or even identify this cite.
Latest US reference: Mastroddi v. Ventura Enters., 35 Phila. 520 (Pa. C.P. 1998).
Search index: 700/3000 {Lexis); Google gives 290,000 strict search results (as of 3-24-13).
By far, this legal maxim, Allegata et Probata, appears to be the most popular legal maxim in US decisions. Lexis returns 3000+ "soft" search results (words "allegata" and "probata" to appear in the same sentence) and 700+ results for the "strict" search of the exact combination ("allegata et probata"). There are 408 cases stating a more complete description, "secundum allegata et probata," which are included in the 700 strict search results.
There is an 8-page detailed article on the history and application of this doctrine in the Dr. Michael R.T. Macnair book "The Law of Proof in Early Modern Equity," starting from the page 46.
No comments:
Post a Comment