ported by evidence of an acceptance by them. The variance in the description their authorized agent as follows: "for of the contract is fatal, though a sepaA. B. and Co." J. S." Heys v. Hesel-rate delivery was made to A. and B. tine and another, 2 Campb. 604. El- of their share. Parish, qui tam, v. lenborough, C. J. 1811. Burwood et alt. 5 Esp. 33. Ellenborough, C. J. 1804.

12. A declaration for penalties under the lottery insurance act, need not state that a premium was paid to the defendant. Phillips, qui tam, v. Mendez da Costa, 1 Esp. 59. Kenyon, C. J. 1793. 13. Plaintiff declares for the use and occupation of premises situate in the parish of A. there being no such parish; the variance is fatal. Wilson v. Clark, 1 Esp. 273. Kenyon, C. J. 1795.

18. S. P. ruled in Everett, qui tam, v. Tindall, 5 Esp. 169. Ellenborough, C. J. 1804.

And see post, VENDOR AND PurCHASER, A. (a) 1, 2; 47 Geo. III. s. 2. cap. 68.

19. Plaintiff declares on a bill made on the 3d February, though the bill appears to bear date on a different day, it need not be shewn to have been made on the third. Coxon v. Lyon, 2 Campb. 307, n. Thompson, B. York, 1810. And see infra, C.

Sed vide Frith v. Gray, 4 T. R. 561, n.; Goodtitle v. Walter, 4 Taunt. 671. 14. An averment of the issuing of a latitat against "Francis J., by the name of John J., is not supported by evidence 20. An allegation of a retainer "at of a latitat against John J., although the a certain salary, to wit, 2501. per anbond was signed by the principal, num," can be supported only by proof "Francis J. arrested by the name of of contract for a specific annual salary. John J.," and the debt and the identity Preston v. Butcher, 1 Stark. 3. Ellenof the party can be proved. Scandover borough, C. J. 1814. and others v. Warne, 2 Campb. 270. Ellenborough, C. J. 1809.

21. Evidence of an agreement to take on board 500 quarters of wheat, will not 15. Issue upon a prescription for support a count which set out an agreeseveral fishery, in four places, ment to take a full cargo; though this in a navigable river. It appeared quantity in fact amount to a full cargo. that the right extended to two of the Harrison v. Wilson, 2 Esp. 708. places only, in one of which the tres-yon, C. J. 1798.

a

passes had been committed.

It was

Ken

22. Nor will such evidence support a

ruled that the trespasses not having general count for the use and hire of a been committed in the excepted places, ship. Ibid.

the variance between the prescription

and the evidence was immaterial. Ro- B. MATTER OF ALLEGATION, WHERE gers and another v. Allen, 1 Campb. 313. Heath, J. Chelmsford, 1808.

But the court of K. B. granted a new trial. Ibid.

See ante, CUSTOм, pl. 2; РLEADING, pl. 52; 1 Wms. Saund. 268, note 1.

SUFFICIENTLY PROVED.

(And see ante, USURY, pl. 34.)

23. Where, by an agreement for a purchase, an appraisement was appointed to be made on a day certain, which was afterwards postponed by 16. In an action for words spoken of consent, a declaration on the original an attorney, with reference to his con- agreement, without noticing the alteraduct in the management of a former tion, is good. Thresh v. Rake, 1 Esp. cause, the proceedings in that cause 53. Kenyon, C. J. 1793. must be strictly proved. Parry, gent. 24. In an action on a bond given to one, &c. v. Collis, 1 Esp. 399. Kenyon,

C. J. 1795.

indemnify B. and C. against any advances made by them to A., it is suffi17. Plaintiff declares for a penalty for cient to prove that money was advanced a fraud in the measure of coals purchased by the house of B., C., and D., in which by A. and B. The contract of sale D. is merely a nominal partner. Roappears to have been made between the bert Harrison, surviving partner of Thodefendant and A., B., and C., who mas Harrison, v. Fitzhenry, 3 Esp. 238. agreed to divide the quantity between Le Blanc, J. 1800.

vestry consisted of a certain select number of persons, comme semble. Ibid.

25. An allegation in the memorial of an annuity, that the grantes paid the purchase money to the grantor, is sup- 31. Semble, that an averment in a deported by evidence of the depositing of claration for a malicious arrest, that the the amount by the grantee at his banker's former suit is at an end, is not supin the name of his attorney, to wait the ported by producing a judge's order to performance of a condition on the part discontinue on payment of costs, and of the grantee, and its being subse- shewing that the costs have been paid quently paid over by the attorney. accordingly. Kirk v. French, 1 Esp. Coare v. Giblet, 4 Esp. 231. Ellenbo- 80. Kenyon, C. J. 1794. rough, C. J. 1803.

S. C. not S. P. 3 East, 461.

Acc. Goddard v. Smith, 6 Mod. 261; S. C. Salk. 21; 456; S. C. Holt, 497.

N. It does not appear from the re- 32. If a party declare in tort as the port whether the payment ought to be proprietor and editor of a newspaper, considered as made on the day on which which appears in evidence to be edited the money was deposited with the by a servant, under the inspection and banker, or on that on which it was paid over to the grantor.

S."

26. Semble, that an averment that J. was one of the meters duly appointed to measure coals from ships in the Thames," is supported by evidence that he was appointed deputy coal-meter by the principal coal-meters, and approved by the city. Davey v. Lowe, 5 Esp. 70. Ellenborough, C. J. 1803.

27. A bill was stated in the declaration to have been indorsed before it became due; it appeared in evidence to have been indorsed after it was due. Held, that the variance was immaterial. Young and another v. Wright, 1 Campb. 139. Ellenborough, C. J. 1807.

And see Russell v. Langstaffe. Dougl. 497, 515.

revision of the plaintiff, semble, that the averment is entire, and that the plaintiff cannot recover as proprietor pro tanto. Heriot v. Stuart, 1 Esp. 437. Kenyon, C. J. and K. B. E. 1796.

33. A count for slander, where the obnoxious words contain distinct charges, is supported by proof of words conveying any one of such charges. Flower v. Pedley, 2 Esp. 491. Eyre, C. J. 1796.

34. But if the unproved words affect and modify those which are proved, the variance is fatal. Ibid.

35. An averment that A. has received 5001. is not supported by evidence of the transfer of 5001. stock into his name. Jones v. Brindley, 3 Esp. 205. Kenyon, C. J. 1800.

S. P. Nightingall v. Devisme, 5 Burr. 28. A. files a bill in chancery against 2589; S. Č. 2 Bla. 684.

B., C., and D. In an indictment against 36. Evidence that the defendant B. for perjury in his answer, the bill is made a statement of facts amounting to described as having been filed against B. a tortious conversion only, upon which a and another; but the perjury is assigned magistrate issues a warrant in the words in a part of the answer which is material of the information, will not support a between A. and B. This is a substantial count for imputing the crime of felony. statement of the proceedings within the Tempest v. Chambers, 1 Stark. 67. Elmeaning of 23 Geo. II. cap. 11. s. 1; lenborough, C. J. 1815. and it would not have been a material 37. So, though the magistrate cause variance if it had been alleged that the the plaintiff to be apprehended on susbill was filed against B. only. Rex v.picion of felony. Leigh v. Webb, 3 William Benson, 2 Campb. 508. El- Esp. 165. Eldon, C. J. 1800. lenborough, C. J. 1810. 38. And semble, that no action can be 29. An allegation, "that there has maintained in such case. immemorially been a vestry, composed 39. A surviving partner may declare of a certain number of select persons," without naming the deceased. But if can be supported only by proof that the goods sold by two partners be described vestry consisted of a definite number. as the goods of the survivor, the vaBerry and another v. Banner and another, riance is fatal. Ditchburn v. Spracklin Peake, 156. Kenyon, C. J. 1792. and others, 5 Esp. 31. Ellenborough, 30. So where it is averred that the C. J. 1803.

Ibid.

And see Greenway v. Horneblow, ful steerage of the defendant's ship. Hardres, 221; ante, ACTION, pl. 33. Hullman v. Bennett, 5 Esp. 226. El

And the court refused a rule for a new

trial. Ibid. 228.

40. Where the defendant justifies lenborough, C. J. 1805. under a peace officer, and the person appears to be merely a patrol employed by the parish, and not a constable, the evidence does not support the plea. Cliffe v. Littlemore, 5 Esp. 39. Ellenborough, C. J. 1803.

41. An averment that A. was on a particular day indebted to B. for goods sold and delivered, is not supported by evidence of the delivery of goods upon a contract for payment in bills which would not be due on that day. White v. Jones, esq. Marshal of the King's Bench, 5 Esp. 161. Ellenborough, C. J. 1804. 42. Secus, if it appear that the original agreement was for ready money, and that the payment in bills was an accommodation afterwards extended by the vendor. Ibid.

And see ante, AGREEMENT, A. (a) 1; ASSUMPSIT, A. (a) 1.

46. An averment in an information that "an order was made for the landing of goods on a quay or wharf," is not supported by evidence of an order to deliver" at the king's warehouse," though it appears in evidence that the warehouse stands on the quay. Rex v. Cassano, 5 Esp. 231. Ellenborough, C. J. 1805.

47. Where an indictment charges the defendant with obtaining, by false pretences, a sum of money, the property of A. and it appears that the money belonged to A.'s servant, who was afterwards reimbursed by his master, the variance is fatal. Rex v. Douglass, 1 Campb. 213. Ellenborough, C. J. 1808.

48. But such an averment is supported by shewing that the servant had in his hands at the time an equal sum belonging to his master. Ibid.

43. If the plaintiff declare as indorsee of a promissory note drawn by the defendant, payable to the order of A. and 49. Declaration charges the defendavers that A. indorsed it, his own proper ant with committing a nuisance to the hand being thereunto subscribed, and the injury of the plaintiff's reversionary inwhole note, when produced, appears to terest in premises, in the occupation of be indorsed by B. per procuration for their tenants. The plaintiffs are seized A. the variance is fatal, as the indorse-in trust for the parish of B.; the prement is a material and necessary aver-mises are occupied by paupers, and by ment, and if stated according to the fact a parish officer appointed to take care would have afforded the defendant the of them. The averment of tenancy is opportunity of shewing that no such not proved. Martin and another v. authority was given, which would have Goble, 1 Campb. 320. Macdonald, C. been an answer to the action. Levy v. B. Horsham, 1808. Wilson, 5 Esp. 180. Ellenborough, C. J. 1804.

50. The omission of the place of payment contained in the body of a 44. But semble, that proof that a bill promissory note, is not cured by an was indorsed by an unauthorized agent averment that the note was duly prein the name of the principal, is sufficient sented. Roche v. Campbell, 3 Campb. to support an averment of an indorse-247. Ellenborough, C. J. 1812. ment made by the principal, his own 51. An outgoing tenant cannot ́deproper hand being thereunto subscribed; clare for goods sold, upon an executed and that at any rate the defendant can- agreement to take the fixtures. Nutt v. not be allowed to take the objection Butler, 5 Esp. 176. Ellenborough, C. after a promise to pay, made with the J. 1804. full knowledge of this circumstance. Helmsley v. Loader, 2 Campb. 450. Ellenborough, C. J. 1810.

52. In assumpsit against schoolmaster for delivering fireworks to plaintiff's son, his scholar, and suffering him 45. Evidence of the improper stowing to retain them, contrary to defendant's of the defendant's anchor, whereby it duty and undertaking, with special dabroke into another vessel and damaged mage, delivery must be proved as averthe plaintiff's goods, will not support a red. King v. Ford, 1 Stark. 421. Elcount charging the injury on the unskil-lenborough, C. J. 1816.

SUFFICIENTLY PROVED.

53. Where two lots are sold under an C. MATTER OF DESCRIPTION, WHERE inclosure act, a declaration upon a sale of "divers, to wit, two lots, &c." is bad. The agreements are separate both (And see post, VENUE, pl. 2; Waste,

in law and fact, and cannot be stated as one contract. James and another v. Shore, 1 Stark. 428. Ellenborough, C. J. 1816.

54. And if the commissioners have resold under the conditions, they cannot recover upon the general count, as for a sale to defendant. Ibid.

55. An allegation of "a charge of felony," is supported by proof of a charge upon suspicion. Davis v. Noak, 1 Stark. 377. Ellenborough, C. J. 1816. And the court discharged a rule for a new trial. Ibid.

56. In an action against A. for the negligence of his waggoner, an averment that the waggoner was employed by A. is supported by evidence of his being employed by B. who horses a different part of the same line of road. Waland v. Elkins, 1 Stark. 272. Gibbs, C. J. 1816.

pl. 5.)

61. Where, in a declaration for a false return, the plaintiff sets out a judgment to recover two distinct sums, and the record when produced appears to be a judgment for three distinct sums, semble, that the omission is no ground of nonsuit. Phillips v. Eamer et alt. sheriffs of London, 1 Esp. 355. Kenyon, C.J. 1795.

62. The omission of a party's addition, (the younger,) is not a fatal misrecital of a record, where it gives rise to no ambiguity. Amey v. Long, 1 Campb. 15, and 6 Esp. 116. Ellenborough, C. J. 1807.

63. If a declaration describe a writ as having issued against " M. B." and it appear to have been issued against "M. B. spinster," the variance is immaterial. Secus, if the writ be against " M. B." and the declaration describe it as having And see ante, PARTNER, pl. 6. issued against M. B. spinster." 57. An allegation that the plaintiff Brown v. Jacobs, 2 Esp. 726, 7. Kengave bail to the sheriff for his appear-yon, C. J. 1799. ance at the return of the writ, is not 64. An averment that it was ordered supported by evidence that he paid the by a bye-law that there should be a debt, and 101. for the costs, into the court consisting of certain officers, is hands of the sheriff. He is, therefore, supported by evidence of a law, enacting precluded from recovering for the conse- that these officers should be sufficient to quential damage. Bristow v. Haywood, constitute the court. Rex v. Campbell, 4 Campb. 213. Ellenborough, C. J.1815. 1 Campb. 91. Ellenborough, Ĉ. J. 58. Declaration against an attorney 1807, and K. B. 1808.

for suffering A. to be superseded, averred 65. In an action for not accepting the that A. was justly indebted to the plain-assignment of a shop, and taking goods tiff. It was proved that A. was a mar-at a valuation, the declaration stated ried woman. The variance was held that the plaintiff was possessed of prefatal. Lee v. Ayrton, one, &c. Peake, mises for the remainder of a certain term 119. Kenyon, Č. J. 1792. of years, which he agreed to assign to 59. In debt, gui tam, for setting a the defendant. It appeared that the person to work in the trade of a sawyer plaintiff was merely lessee from year to who has not served an apprenticeship, year, with a promise of a term for 14 if that business appears to have been years. Held, that the legal estate of the merely auxiliary to the trade actually plaintiff was sufficient to support the carried on, the variance is fatal. Spen- averment in the declaration. Botting v. cer, qui tam, v. Mann and others, 5 Esp. Martin, 1 Campb. 317. Ellenborough, 110. Ellenborough, C. J. 1804. C. J. 1808.

60. But semble, that a mere misdecription of the trade of the party who sets the unqualified person to work, is immaterial. Ibid.

And see Beach v. Turner, 4 Burr. 2449.

66. In an action brought by Elizabeth H. the record of a judgment in the mayor's court was produced, in which the now defendant was garnishee, and Eliza H. was defendant. But it appearing that the plaintiff's attorney, in

X

the present suit, had called her Eliza H.110; Ahitbol v. Beneditto, 2 Taunt. It was held to be no variance. Huxham 401.

v. Smith, 2 Campb. 21. Ellenborough, 73. A count for not taking away goods C. J. 1809. according to conditions of sale, one of 67. In an action by C. and D. as as-which was stated to be the payment of signees of A. a notice entitled " in an " 1." omitting the sum, which apaction between C. and D., assignees of pears in evidence to have been 101. is A. and B.," &c. is inoperative. Harvey bad. Mertens v. Adcock, 4 Esp. 251. v. Morgan, ubi supra, pl. 4. Ellenborough, C. J. 1803.

And the court refused a rule for a new trial. 2 Stark. 19.

And see Samon v. Pitt, Cro. El. 432; S. C. 5 Co. 77, b; Martham v. Jemx, Yelv. 97, 8; ante, DEED, pl. 3, 12.

68. The words " accepted on myself, payable everywhere," inserted in the 74. Declaration for an escape averred margin of a promissory note, payable that J. S. was brought by habeas corpus seven days after sight, are not to be before a judge of K. B. who committed declared upon as part of the original him to the custody of the marshal, “as instrument, though contemporaneous in by the said writ of habeas corpus, and point of fact. Splitgerber v. Kohn, 1 the return thereof, and the said commitStark. 125. Ellenborough, C. J. 1815. ment thereon, now remaining in the said 69. Declaration stated that the de-court, more fully appears." Held, that fendant had preferred an indictment the production of the writ from the against the plaintiff, charging her with King's Bench prison, where it was filed, having feloniously stolen three promis-would not support the action. Turner sory notes. The indictment, when pro- v. Eyles, 5 Esp. 8. Alvanley, C. J. duced, was found to charge the plaintiff 1803.

with having stolen the notes in a dwel- And the court of C. P. discharged a ling house. It was urged that the in-rule for setting aside nonsuit. Ibid. dictment proved the allegation and more, and 3 Bos. & Pul. 456. and that upon an indictment so framed, the plaintiff might have been convicted of the simple grand larceny. The count was held bad. Graham, B. Bristol, Summer Assizes, 1819.

Sed vide Wigley v. Jones, 5 East, 440; S. C. 1 Smith, 458; 1 Wms. Saund. 39, n.

75. Plaintiff declares for a false return to a fi. fa. indorsed "to levy 6001. 70. The plea of not guilty to an in- together with the sheriff's poundage, formation in the exchequer for receiving officers' fees, and other legal charges run goods, puts in issue only the facts and incidental expenses attending the which form the gist of the action; and levy.' The writ when produced ap where an indictment for perjury com- pears to have been indorsed to levy mitted at the trial of the information, 6001. together with the sheriff's poundavers that issue was joined upon facts, age, officers' fees, et cætera. Semble, some of which were merely laid as in- that the variance is fatal. Stiles v. ducement, though necessary to be proved Rawlins and another, 5 Esp. 133. Elat the trial, the variance is fatal. The lenborough, C. J. 1804. King v. Richard Hawkins, Peake, 8. 76. An agreement to deliver soil, Buller, J. 1790. cannot be declared upon as a contract 71. Declaration for not removing to deliver soil or breeze, if it appear goods in a reasonable time. Contract, soil and breeze are different articles. to remove in a month. The variance Clark v. Manstone, 5 Esp. 239. Mansis fatal. Hore v. Milner, Peake, 42, a. field, C. J. 1805. Kenyon, C. J. 1797.

72. Semble, that the mis-spelling of a name in setting out a record is fatal, though the words be idem sonantia; secus upon a plea in abatement. Brown v. Jacobs, gent. 2 Esp. 726. Kenyon, C. J. 1799.

And see Dickenson v. Bowes, 16 East,

that

S. P. e converso, Penny v. Porter, 2 East, 2; Turner's case, Gilb. Ev. 168; 13 Ed. 4, 46.

77. Indictment for not repairing a road leading from A. to B. and from thence to C. is not supported by evidence of the non-repair of a direct road from A. to C,, not passing through B.,