action, need not be proved with the utmost strictness and precision. Thus where an action was brought to recover double the value of goods, which had been removed for the purpose of preventing a distress, and the declaration stated a certain sum to be in arrear for rent, it was decided that the plaintiff was entitled to recover, although the notice of distress was for a less sum. (1) Here, whether the particular sum stated in the declaration was in arrear, must be perfectly immaterial: the damages were not to be measured by the quantity of rent, but by the value of the goods, which had been removed. Where aver struck out. If an averment may be struck out without destroying the plaintiff's right of action, it will not be necessary to prove it; ment may be but it is otherwise, if the averment cannot be struck out without getting rid of a part essential to the cause of action: for then, though the averment be more particular than it need have been, the whole must be proved, or there is a fatal variance. (2) Thus, in the case of Bristow v. Wright, (3) which was an action against the sheriff for taking the goods of a lodger without leaving a year's rent, the declaration stated some particulars of the demise relative to the time of payment of rent, which were negatived by the evidence, and the Court held that the variance was fatal. There, it was necessary for the plaintiff, in order to show that he was landlord, to set forth a contract between himself and the tenant, and no part of the contract alleged could be struck out, because it was in its nature entire: though it was admitted, that the part of the contract, relating to the time of payment, need not have been averred. The case of Williamson v. Allison, (4) illustrates the other part of the rule, namely, that where an averment may be struck out, it need not be proved. That was an action on the case in tort, for the breach of a warranty in selling goods unfit for sale, (1) Gwinnet v. Phillips, 3 T. R. 643. See another instance in Stoddart v. Palmer, 3 Barn. & Cress. 2, stated infra. (2) By Lawrence, J., in Williamson v. Allison, 11 East, 452. (3) 2 Doug. 664. See 5 T. R. 496. 2 East, 450, 452. 8 East, 9. (4) 2 East, 466. See also Peppin v. Solomon, 5 T. R. 496. Broomfield v. Jones, 4 Barn. & Cress. 360. Where averment may be struck out. Bill of exchange. Indictment. Robbery. Arson. and the declaration averred, that the defendant knew the goods to be in an unfit state, of which fact there was no evidence at the trial; but the Court held, that such proof was unnecessary, for if the whole averment respecting the defendant's knowledge of the unfitness for sale were struck out, the declaration would still be sufficient to entitle the plaintiff to recover upon the breach of the warranty proved. In an action of assumpsit, (1) by the indorsee against the indorser of a bill of exchange, the declaration, in addition to the other requisites to charge the defendant, alleged, that the bill had been accepted. At the trial there was no proof of an acceptance, and it was held, that as the holder of a bill is not bound to present it for acceptance before it becomes due, and the acceptance or non-acceptance does not vary the responsi bility against the indorser, it being at all events his duty to pay the bill if prior parties did not, the averment of acceptance was immaterial, and the plaintiff therefore not bound to prove it. The same rule is applicable to averments in an indictment. If an averment may be entirely omitted, without affecting the charge against the prisoner, and without detriment to the indictment, it will be considered as surplusage, and may be disregarded in evidence. Thus where the prisoner was charged with a robbery near the highway, and the robbery was proved, but not near the highway (2)-where the robbery was averred to have been committed in the house of a certain person named, and the name of the owner was not proved (3)-and where the offence of arson was stated in the indictment to have been committed in the night-time, and was proved not to have been in the night-time, (4)—in these cases, all the Judges were of opinion, that the convictions were proper, and the prisoners were ousted of the benefit of clergy. But where the averment in (1) Tanner v. Bean, 4 B. & C. 312. (2) Wardle's case, 2 East, P. C. 785. Russ. & Ry. Cr. C. 9. S. C. (3) Pye's case, Johnstone's case, 2 East, P. C. 785. Russ. & Ry. Cr. C. 9, S. C. (4) Minton's case, 2 East, P. C. 1021. the indictment is sensible and material, it ought to be regularly proved; as, where the prisoner was indicted for a burglary in Burglary. the house of J. D. with intent to steal the goods of J. W., and it appeared in evidence that no such person had any goods in the house, but that the name of J. W. was put by mistake for J. D., (1) the Judges held, that it was material to state truly the property of the goods, and on account of this variance the prisoner was acquitted. contract. Where the action is brought upon a contract, the contract Variance in ought to be stated correctly, and proved as laid; and if any part of the contract proved vary materially from that stated in the pleadings, the whole foundation of the action fails, since the contract is entire and indivisible. (2) If the contract, therefore, for the breach of which the action is brought, was in the alternative, at the option of the defendant, (as to deliver this or that quantity of goods at one time, and the remainder at another,) it ought to be so stated; for if the declaration states an absolute contract, and the proof is of a contract in the alternative, the plaintiff cannot recover, although the defendant may have determined his option. (3) In an action against a carrier, on a general undertaking to carry safely, proof of a contract, to carry safely, fire and robbery excepted, is a variance. (4) So in a case (5) where the plaintiff brought his (1) Jenk's case, 2 East, P. C. 514. (2) 1 T. R. 240. 3 T. R. 645. The following are the principal cases on this subject, decided before the statutes enabling the Judge to amend variances at the trial: Bristow v. Wright, 2 Doug. 664, (supra, p. 853, S. C.) Carlisle v. Trears, Cowp. 671. Churchill v. Wilkins, 1 T. R. 447. Durston v. Tuthan, cited 3 T. R. 67. Littler v. Holland, 3 T. R. 590. Hockin v. Cooke, 4 T. R. 314. Leery v. Goodson, 4 T. R. 687. White v. Wilson, 2 Bos. & Pull. 116. Penny v. Porter, 2 East, 2. Brown v. Sayce, 4 Taunt. 320. Pool v. Court, 4 Taunt. 700. Cohen v. Hannam, 5 Taunt. 101. Arnfield v. Bate, 3 Maule & Sel. 173. Squire v. Hunt, 3 Price, 68. Wildman v. Glossop, 1 Barn. & Ald. 9. Tucker v. Cracklin, 2 Starkie, N. P. C. 385. 224. (3) Penny v. Porter, 2 East, 2, (4) Latham v. Rutley, 2 Barn. & 445. Contract stated in action of tort. What parts of contract need be stated. action on the warranty of a horse, stating the warranty to be that the horse was sound, and it appeared upon the proof that the warranty was, that the horse was sound except a kick on one of it's legs, this was also held to be a ground of nonsuit, though the unsoundness which was proved, and for which the action was brought, had no relation to the leg. This rule is not confined to actions of assumpsit. In an action of tort also, where the contract is necessary to be stated, in order to maintain the ground of action as laid on the record, the contract ought to be proved as stated. Thus in an action. against two defendants for deceit, charged in the declaration to have been committed by them in a joint sale of their joint property, the Court of King's Bench held, as there was no evidence against one of the defendants, that the action could not be maintained against the other. (1) The joint contract here described, said Lord Ellenborough, in delivering the judgment of the Court, is the foundation of the joint warranty laid in the declaration, and essential to it's legal existence and validity; and it is a rule of law, that the proof of the contract must correspond with the description of it in all material respects. It will not be necessary for the plaintiff to state all the seve ral parts of a contract, which consists of distinct and collateral provisions; but it is sufficient to state so much of the contract as contains the entire consideration for the act, and the entire act to be done in virtue of such consideration, including the time, manner, and other circumstances of it's performance. (2) Thus, if there is a provision in the contract to discharge the party from all liability, in case a particular condition is not complied with, it ought to be set out and strictly proved: but it is otherwise, where the provision respects only the liquidation of damages on a breach of the contract; such a provision need not be stated in the pleadings. (2) In an action on the (1) Weall v. King, 12 East, 452. (2) Clarke v. Gray, 6 East, 564 569. Thornton v. Jones, 2 Marsh, Rep. 287. Parker v. Palmer, 4 Barn. & Ald. 387. case upon the warranty of a horse, if the plaintiff states truly the whole of the consideration for the promise of the defendant, (which, in the case referred to, was the re-delivery of the horse to the defendant,) and then states truly the substantive parts of the warranty, of the breach of which he complains, this will be sufficient, without averring other parts of the warranty entirely collateral and irrelevant to those stated. (1) In the case of Gladstone v. Neale, (2) the contract stated was for the purchase of a certain quantity of goods, (" to wit, eight tons,") and the contract proved was for the purchase of "about 8 tons," the exact amount not being known at the time of making the contract, but being ascertained before the action was brought; and it was determined at the trial, and afterwards by the Court of King's Bench, that the variance was not material. The rule above laid down with respect to contracts applies Variance in equally to the case of a prescription: a prescriptive right is prescription. one entire thing, and, when put in issue, must be proved as stated. It ought to be proved, therefore, to the full extent, to which it is claimed. Thus, in replevin, if the defendant avow taking cattle as damage feasant, and the plaintiff plead in bar a right of common, and aver that the cattle were levant and couchant, on which averment issue is joined, proof only for part of the cattle will not be sufficient, for the issue is upon the whole. (3) But though the party must prove a prescriptive Proof of more right, at least, commensurate with the right claimed, he will ample right. not be precluded from recovering, because he proves a more ample right than what he claims. Evidence of a right of common for sheep and cows will support a plea prescribing for common only for sheep. (4) (1) Miles v. Sheward, 8 East, 7. Cotterill v. Cuff, 4 Taunt. 285. Squier v. Hunt, 3 Price, 68. Handford v. Palmer, 2 Brod. & Bing. 359. See Blyth v. Bampton, 3 Bing. 472. (2) 13 East, 410. Crispin v. Williamson, 8 Taunt. 107. (3) Sloper v. Allen, 2 Roll. Ab. 706, tit. Trial, c. 41, S. C. cited Bull. N. P. 299. Gray's case, б 224. (4) Bushwood v. Bond, Cro. El. 722. Bailiff, &c. of Tewkesbury v. Bricknell, 1 Taunt. 142. West v. Andrews, 6 Barn. & Ald. 77. |