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Serjeant at mace in London, the indictment charged, that the sheriff made a precept to the Serjeant for the arrest, and it appeared upon the evidence, that there was no such precept, but that the serjeant made the arrest ex officio at the plaintiff's request on the entry of the plaint, according to the custom of the city 5 and all the judges held, that the variance between the indictment and the evidence was not material, because the warrant to arrest was only a circumstance, and the substance of the matter had been found, which was, that the prisoner killed an officer in the lawful execution of legal process. The Judges were also of opinion, that the indictment might have been general, (that the prisoner feloniously and of his malice prepense killed, &c.) and that the special matter might have been given in evidence; and since the indictment in the principal case contained such an averment, they held that the charge of murder had been proved, notwithstanding that the special matter given in evidence might vary in substance from the special matter contained in the indictment.

Averments A great variety of cases occur in the books with respect wiitexiaT. to necessity of proving averments in pleadings. Immaterial averments need not be proved; but because an averment might have been unnecessary, it will not therefore follow that it is immaterial (1). The general rule on this subject is, that if the whole of an averment may be struck out without destroying the plaintiffs right of action, it will not be necessary to prove it; but it is otherwise, if the whole 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 the plaintiff cannot recover (2). Thus in the case of Bristow v. Wright (3), which was an action against the sheriff for taking the lodger's goods without

(1) 1 Mavil Sc Sel. 204. Crawley (2) By Lawrence, J. in Williamson v. Blcwett, 1 i Mod. 127. Savage q. t. 'v.Allison, 2 Kast, 452. v. Smith, 2 B'ac. Rep. 1191. Turner (.;) 2 Dou^. 664. See 5 T. R. 496; v. Eyles,3 B01. & I'ul^b. 1 East, 4,50,2; 8 East, 9.

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 shew 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. And the case of Williamson v. Allison (1) 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, 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.

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), so, 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), so, 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 nighttime (4); in these cases, all the judges were of opinion, that

{\) i East, 446. Sco alsoPeppin (.1) Pye's case, Johnstone's case.ib. v. Solomon, c T. R. 496. (4) Minion's case, 1 East, P. C.

(a) Wardle's case, 2 East,P.C.785. 1021.

the the convictions were proper, and the prisoners were ousted of the benefit of clergy. But where the averment in the indictment is sensible and material, it ought to be regularly proved; as, where the prisoner was indicted for a burglary in the house of J. D. with intent to steal the goods of J. W.y and it appeared in evidence that no such person had any goods in the house, but that the name J. W. was put by mistake for J. D. (i), 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.

Variance in Where the action is brought upon a contract, the conntract. tract 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 such or such a 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). It will not be necessary for the plaintiff to state all the several 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,

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manner, and other circumstances of its performance (1). 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 (1). So, in an action on the 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 redelivery 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 which are entirely collateral and irrelevant to those stated (2). In the late case of Gladstone v. Neale(3), 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.

In all cases of joint contracts, in writing or by parol, or ex quasi contractu, and in all cases of joint obligations, it seems now to be settled, that, if one only be sued, he must plead the matter in abatement, and cannot take advantage of it afterwards upon any other plea or in arrest of judgment, or give it in evidence. Thus in an action against the defendant as drawer of a bill of exchange, who pleaded non assumpsit, and it appeared in evidence at the trial, that the bill was drawn by the defendant and another jointly; on a motion to set aside the verdict, (which had been found for the plaintiff,) upon the ground of this supposed va

(1) Clarke v. Gray, 6 East, 564,9; (1) Miles v. Sheward, 8 East, 7. and see supra, p. 144, S. C. (3) »3 4'°

M ' riance, riance, the Court of Exchequer were clearly of opinion, that there was no variance between the bill of exchange proved and that which was declared upon (i). The same rule holds, when the action is brought against one of several partners; the defendant must plead in abatement, and cannot give the partnership in evidence under the general issue{2). Formerly, a different rule was adopted, on the ground of a supposed variance (3). But with respect to the parly suing, the rule is still the same; namely, that if an action of assumpsit is brought by one only of several persons, who ought to join, the defendant may take advantage of it upon non assumpsit. (4)

proof"" Where a deed is declared upon, and it appears on comdttJ. paring and reading the record with the instrument produced, that some of the words stated in the pleadings as descriptive of the deed, (and which cannot be rejected as surplusage,) vary from the deed, the variance will be fatal (5); and though some parts of the deed, which the declaration purports to set out at length, need not have been stated at all, or might have been stated shortly according to their legal effect and operation (6), yet if they are set out at length, they ought to be proved as laid, and in case of a variance the plaintiff must fail.

A similar rule has been laid down, where a record is referred to in the pleadings. If the allegation is descriptive of the record, it ought to be strictly and literally proved as laid. Thus, in the case of Green v. Rennett(7), where a writ was described in terms, when sued out and when re

(1) Evans v. Lewis, i 794, MS. case, (5) Pitt r. Green, 9 East, 188;

reported in Mr. Serjt. Williams's edit BowJitch v. Mawlcy, I Carapb. 195.
of Saund. I V. 191. d. See also Ger- (6) Dundass v. Lord Weymouth,

main v. Frederick, MS. case, id. and Cowp. 665 ; Price v. Fletcher, Cow p.

Covrp. 83a. 727; Roulston v. (larks, z H. Bl. 563.

(2) Rice v. Shute, 5 Burr. 2611. (7) 1 T. R. 656; 9 East, 161,163.

Abbott v. Smith, 2 Black. 947. Brown v. Jacobs, 2 Esp. N. P. C. 726.

(3) Bo.on v. Sandford, 2 Salk. 440. R. v. Taylor, 1 Campb. N. P. C 404.

(4) 2 Sir. 820. Graham v. Robert- See also Com. Dig. tit. Record, (C), son, 2 1*. R. 282; and see I Saund. (Dj. 291. f. note.



in proof of rezord.

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