Duhaime's Law Dictionary


Surplusage Definition:

Superfluous allegations, especially in regards to pleadings.

Related Terms: Pleadings, Utile Per Inutile Non Vitiatur

From the French, surplus.

It is predictable that non-lawyer litigants or inexperienced lawyers will succumb to the temptation to put more in their pleadings than the essential allegations of fact, the reference to the relevant law, and the relief they seek, and file before the Court pleadings which are rife with inappropriate allegations such as too much detail, information in regards to collateral events, hearsay, etc.

A simple example would be a detailed physical description of a defendant.

This "excess baggage" is known as surplusage.

In the 1953 C.J.S., the American encyclopedia of law:

"In law (surplusage) means matter in an instrument foreign to the purpose; matter in any instrument which is not necessary to its meaning but does not affect its validity; whatever is extraneous, impertinent, superfluous or unnecessary.

"In procedure, surplusage means matter which is not necessary or relevant to the case...."

surplusageIn Aldis v Mason, Justice Maule wrote:

"An allegation that is material can never be surplusage. Surplusage is something that is altogether foreign and inapplicable."

The second edition of Stroud's Judicial Dictionary (1903), at page 1994:

"Surplusage ... an overplus, and signifies in law an addition of more than needs which sometimes is the cause that a writ shall abate, but in pleadings, many times it is absolutely void, and the residue of the plea shall stand good."

Similarly, Rapalje and Lawrence:

"Surplusage is where there is something over or in excess. In pleading, surplusage is the allegation of unnecessary matter and is forbidden.

"But in most cases such matter will not vitiate the pleading, but will be disregarded."

Judicially, note this definition proposed by Justice Powell of the Criminal Court of Appeals of Oklahoma in Landrum v State:

"We mean by surplusage allegations of matter wholly foreign and impertinent to the case."

Also in the context of criminal law, where the pleadings take the form of an indictment or an information, Justice Lamer of the Supreme Court of Canada in Vezina and Côté v R.:

"The surplusage rule, which has been developed by the courts over a great many years, is succinctly stated as follows (...): If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e., a non-necessary which need not be proved."

In the interpretation or construction of statutes, the courts will generally not conclude that words in a statute have no purpose; this is known as the presumption against statutory surplusage or the suplusage rule.

REFERENCES:

  • Aldis v Mason, 11 C.B. 132 at page 138.
  • Landrum v State, 255 P. (2d) 525 (1955)
  • Rapalje, Stewart and Lawrence, Robert, A Dictionary of American and English Law, Volume II (Jersey City: Frederick D. Linn & Co. Law Publishers and Booksellers, 1883), page 1245.
  • R v Cormier, 70 A.P.R. 604 (1980)
  • Vezine and Côté v R., [1986] 1 S.C.R. 2

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