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tad the other after the division of it, and that being alleged to be an immemorial custom, it was disproved by evidence that the division was made within memory. Kingmill v. Bull, SEast, 185.
Variance in torts.] The omission of a person who ought to he joined as plaintiff in an action, ex delicto, is only ground of plea in abatement, and is no variance. Dockwray v. Dickinson, Skin. 640. Bloxam v. Howard, o East, 420. And the omission of a person who might have been joined as defendant cannot in any manner be taken advantage of; 1 Sound. 291, » (n); unless in case of one tenant in common of land sued in respect of the land, in which case he may plead the non-joinder ofhiscotenant in abatement. 1 Sound. 291,y(n). Inactions of tort, it is no variance to prove a part only of the cause of action stated. Thus, in a count for slander, where the obnoxious words contain distinct charges, it is sufficient to prove the words conveying any one of those charges, provided the other words do not affect, or modify, those which are proved. Timer v. Pedley, 2 Esp. 491. So where the plaintiff declares for the disturbance of a right of common, which he has in respect of a messuage and land, he may prove a right of common in respect of the land only. Ricketts v. Salwey, 2 B. and A. 360, supra. But where in an action of tort, matter of contract is alleged, it must be proved as laid. Bristow v. Wright, Daugl. 640, ante, p. 36. So matter of description must be proved as alleged; thus, in a declaration for assaulting a constable in the execution of his office, it was alleged that he was constable of a particular parish, but it appeared in evidence that he was sworn in for a liberty, of which the parish was part, and the variance was held fatal. Goodes v. Wheatley, 1 Campb. 231. The facts averred, or a part of them, sufficient to constitute a cause of action, must be proved as laid. Therefore, evidence that the defendant made a statement of facts amounting to a tortious conversion, will not support a count for imputing the crime of felony. Tempest v. Chambers, 1 Stark. 6T. So evidence of the improper stowing of the defendant's anchor, whereby it broke into another vessel and damaged the plaintiff's goods, will not support a count stating the injury to have been caused by the unskilful steering of the defendant's ship. Hidlmanv. Bennett, 5 Esp. 226. So where the declaration stated, that the defendant wrongfully placed and continued a heap of earth, whereby the refuse water was prevented from flowing away from his house down a ditch, at the back thereof, and it appeared in evidence, that the heap was not originally placed so as to obstruct the water, but that in process of time, earth from the heap was trodden down, and fell into the ditch and obstructed it, the variance was held
fatal, for the injury was not the immediate act of the defendants, but consequential. Fitzsimans v. Jiiglis, 5 Taunt. 534.
In actions of tort, as in other cases, it is sufficient to state matters according to their legal effect. Thus, in an action by the consignor of goods against the carrier, on a promise to carry them for a certain sum and reward to be paid by the plaintiffs, proof of an agreement between the consignor and consignee, that the latter shall pay the carriage, is no variance, the consignor being in law liable to the defendant. Moore v. Wilson, 1 T. R. 659. So in an action on the case for damage, occasioned by the defendant's negligence in driving his carriage, it is sufficient to show that the damage was occasioned by the negligence of his servant. Braeker v. Frvmont, 6 T. R. 659.
Variance in records, writs, tfe."] Where a record is stated by way of inducement, and is not the gist of the action, it is not necessary to describe it with a proiit patet, &c. and it is sufficient to prove it substantially. Thus, in an action for a false return to a.fi. fa., where the declaration stated that the plaintiff in Trinity Term, % Geo. IV., recovered, &c, prout patet per recordum, and a judgment of Easter Term, 3 Geo. IV., was given in evidence, it was held no variance. Stoddart 17. Palmer, 3 B. and C. 2. Phillips v. Shaw, 4 B. and A. 435. Bennet v. Isaac, 10 Price, 154. R. v. Coppard, 1 M. and M. 118. But where the judgment is the gist of the action it is otherwise. Thus in an action of debt on a judgment, if the declaration state the judgment to have been recovered in such a term, prout patet, Sfc, and it appears in evidence to have been recovered in another term, die variance is fatal. Rastall v. Strattmi, 1 H. Bl. 49. In an action for a malicious prosecution, it was averred, that the defendant prosecuted an indictment against the plaintiff, until afterwards, to wit, on a certain day, the plaintiff was in due manner acquitted; the record of acquittal was on another day, but the court held that the variance was immaterial, and that the averment was substantially proved. Purcell v. Macnamara, 9 East, 157. In an action for maliciously arresting and holding the plaintiff to bail, the declaration, in setting out the judgment by default, in the former action, stated, "that it was thereupon considered that the plaintiffs should take nothing by their said writ, but that they and their pledges to prosecute should be in mercy, Sfc.;" it was held to be no material variance that the record produced had not the words, "and their pledges to prosecute," but only an &c, for that those words might be rejected as surplusage, the substance of the allegation being the discontinuance of the former suit. Judge v. Morgan, 13 East, 547. An averment in an action for an escape, that bail
above was put in before a judge at Chambers, "as appears by the record of the recognizance," is not supported by evidence of an examined copy of the entry of the recognizance of bail, stating the recognizance to have been taken before the Court at Westminster. Bevan v. Jones, 4 B. and C. 403. In an action against the sheriff, on the stat. 8 Anne, c. 14, an averment that thefi.fa. issued out of the King's Bench is not proved by a ft. fa. issuing out of the Common Pleas. Sheldon v. Whittaker,
4 B. and C. 657. Where in a declaration for an escape it was -stated that a judgment was recovered in Easter Term, 5 Geo.
IV., and that in Trinity Term in the same year there was an award of execution by the Court, and thereupon a commitment of the defendant to the custody of the marshal, it was held not to be necessary to prove the sci.fa., it being immaterial. Bromfield v. Jones, 4 B. and C. 380. See also Edwards V. Lucas,
5 B and C. 339. R. v. Coppard, 1 AT. and M. 118.
Variance in deeds.'] When a deed is stated in pleading, it must be proved as stated. Therefore, where a covenant is set out absolutely, without the qualifying context which belongs to it, this being an untrue statement of the deed in point of substance and effect, the variance will be fatal. Howel v. Richards, 11 East, 641. Thus where the declaration stated a covenant to repair generally, and on non est factum pleaded, it appeared that the covenant contained an exception of "fire and all other casualties," Lord Ellenborough held the variance fatal. Tempany v. Burnand, 4 Campb. 20; and see Swallow v. Beaamont, 2 B. and A. 765. But when it is stated that by a certain deed, "it is witnessed," &c, there can be no variance, if the very words of the deed are set out. Per Holroyd, J., Ross v. Parker, 1 B. and C. 362. And where a deed contains a proviso, in defeasance of a covenant, but not incorporated therewith, it is no variance to omit such proviso; Gordon v. Gordon, 1 Stark. 294; unless the proviso be referred to in the covenant, in which case, it will be taken to form part of it. Vavasour v. Ormrod, 6 B. and C. 430. A deed may be stated according to its legal effect. Thus, where a lease was stated in a declaration to be made by the plaintiff of the one part, and T. R. of the other part, but appeared in evidence to have been actually made by the plaintiff and his wife of the one part, and T. R. of the other part, it was held to be no variance. Arnold v. Revoult, 1 B. and B. 443. If a plaintiff states the legal effect of a deed, the defendant has a right to see it on oyer, and if the meaning varies from that attributed to it in the declaration, in order to take advantage of that variance, he should plead non est factum, without setting out the deed; if it does not support the breach he should set it out and demur; if, however, he sets out the deed on oyer, and pleads non est factum, the only question at the trial of that issue is, whether D
the deed, whereof the tenor is set ont, was executed by the defendant or not. Snellv. Snell, 4 B. and C. 741. Where a
. deed granted liberty to make levels, pits, and soughs, and the declaration stated it as a liberty to make levels, pits, and slouglis, at was held, that under the rule noscitur a sociis, the court could discover this to be the word soughs mis-spelt, and that the
. variance was not fatal. Morgan v. Edwards, & Taunt. 394. So
, where the plaintiff declared that by indenture he demised to the defendants "certain lands and premises," and the demise ap
. peared to be of "all that piece, or parcel of ground, and premises, containing by estimation one acre," the variance was held to be immaterial. Birch v. Gibbs, 6 M. and S. 115. But the words "Cellar beer field," for "alter beer field," were held a fatal variance in setting out a covenant, though the
.plaintiffs waived the damages on the breach of that covenant. Pitt v.Green, 9 East, 188. So "storehouses" for "storehouse." Hoar v. Mill, 4 M. and S. 470. If a man is described as James C. in one part of a deed, and afterwards as George C., and signs it George C., he is properly declared against as George C. Mayelstone v. Ld. Palmerston, 1 M. and M. 6.
Variance in time.] Where the time is material, or where it is alleged by way of description, it must be proved as laid. Thus in debt to recover penalties for usury, the day on which the money was lent is material, though laid under a videlicet, and a variance from that day is fatal. Partridge v. Coates, R. and M. 153. So where a writ was described in terms, and on the production of the writ it appeared to be returnable on a different day from that stated, the variance was held to be fatal, though the day was laid under a videlicet. Grey v. Rennet, 1 T.R. 656 ; see also Rastall v. Stratum, 1 H. Bl. 49, ante, p. 48. So where the declaration alleged that the defendant, on such a day, made his certain bill of exchange, " bearing date the day and year aforesaid," and the real date of the bill was different, this being a variance in matter of description was held fatal. Anon. 2 Campb. 308 (n).
But where the time is neither material nor matter of description, a variance from it will not be fatal. Thus, where the declaration stated, that the defendant made his certain bill of exchange on such a day, but not that it bore date on that .day, a variance from that day was held to be immaterial. Coxon v. Lyon, 2 Camvb. 307 (71). So where the declaration alleged that a bill drawn on the 18th August, and payable 60 days after sight, was " afterwards, to wit, on the day and year aforesaid," accepted by the defendant, and the bill appeared to be accepted on the 19th September, Lord EllenboTough held the variance immaterial. Freeman v. Jacob, 4 Campb. 209. So where a bill was stated in the declaration to have been indorsed before it became due, and appeared in evidence fc have been indorsed afier it became due, the variance wag kid'immaterial. Young v. Wright, 1 Campb. 139; see alsoPurafi v. Macnamura, 9 East, 157, ani», p. 48. So in trespass tha e»yis immaterial; but in trespass with a continuando, or with! t" divers days and times," though the plaintiff may prove any namber of trespasses within the time laid, yet he can only prove a single act of trespass before the first day. B. N. P, 86, 1 Sound. 24 (n).
• Variance in place.] Whenever a place is mentioned by way of description, and not merely as venue, a variance will be fatal, even though the local situation need not have been mentioned. Guest v. Caamont, 3 Campb. 235. Where the action is not local, the description of the place may be referred to venue, and a variance will not be material. Thus in an action for negligence, an allegation that the plaintiff's boat was ran down in the Thames near the Half-way-reach, is supported by proof that the boat was run down in the Half-wayreach. Drewry v. Twiss, 4 T. R. 558. So in an action on the case, for setting up a certain mark in front of the plaintiff's; dwelling-house, in order to defame him as the keeper of a bawdy-house, if the declaration, after describing the house as, situate in a certain street called A. street, in the parish of O. A. (there being no such parish), afterwards state the nuisance tb be erected and placed in the parish aforesaid, it will be' ascribed to venue, and need not be proved as laid. Jefferiesv. Dunarmbe, 11 East, 226; and see Mersey Navigation v. Douglati 1 East, 497. Hamer v. Raynamd, 1 Marsh. 363. But in an action on the case for a nuisance in erecting a weir, if it be described in the declaration to be at H., and be proved to be at a lower part of the same water, called T., the variance isfatal. Shaw v. Wrigley, cited 2 East, 500. Where the allegation of place is descriptive of a contract, it must be provedas laid. Thus in an action against a carrier a misdescription of the termini in the contract of carriage is fatal. Tucker v. CrackOn, 2 Stark. 385. See Woodward v. Booth, 7 B. ami C. 301; ai»i farther as to the proof of local descriptions, post, in " Assampsit for tse and occupation," "Case against Carriers," " Ejectment," and ■* Trespass uuare clausula fregit."
AFFIRMATIVE OF THE ISSUE TO BE PROVED.
tfhe general rule with regard to the onus of proving the issue is, that the party who asserts the affirmative is bound to prove the issue. Thus in an action for a loss occasioned by the barratry of the master of a vessel, it is not incumbent on the plaintiff, after proving the barratrous act, to prove also that the master was not the owner, or freighter, for that would be calling oil him to prove a negative ; the proof of that D %