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turnable, and on the production of the writ itself it appeared to be returnable on a different day from that stated in the declaration, the Court held that the variance was fatal, though the day of the return was laid under a * videlicet. The return-day was material in that case, because it was part of the description of the writ stated, which could only be proved by a writ returnable on the same day. But where the pleadings do not undertake to set out the tenor of the record, and the substance only of the record is stated,, there a variance between the allegation and the record will not be fatal, and it will be sufficient if the allegation is substantially proved. Thus in the case of the King v. Lookup, on a prosecution for perjury, where the objection was, that the indictment stated a bill in Chancery to be directed to Robert Lord Henley, &c., and it appeared in evidence to have been directed to Sir Robert Henley, Knight, &c., the Court over-ruled the objection, and held it to be sufficient, that the complainant had preferred a bill before the person who held the great seal, by whichever title he was styled (1). So in the late case of Purcell v. Macnamara (2), in an action for a malicious prosecu
(1; R. v. Lookup, cit. 1T. R. HO, (2) 9 East, I5y. See alio Philips v. 9 Eut, 163. See also R. v. Payne, cic Bacon, 9 East, 198. 9 East, I58.
* Where the circumstance averred in the pleadings, (as of a particular sum or Effect of day,) is material, the addition of a •videlicet will not render the averment imma- videlicet, terbl, (Grimwood v. Barrit, 6T.R. 460, 3); though the omission of a videlicet may in seme caste make an averment material, which would not otherwise be so. (Symmons v.Knox, 3 T. R. 65, 8.) If therefore the day laid in the declaration be material, it must he proved, notwithstanding that it is laid under a videlicet. It is by no means generally true that the omission of a videlicet will make it necessary to prove the particular sum or day, JcC. strictly as laid. Some cases hav« been already mentioned, where a variance in the proof of such circumstance* has been adjudged to be immaterial. (Vid. supra, p. 161.) It will bs sufficient to add one other example. On an indictment for stealing goods in a dwellinghouse under the statute I2 Ann. St. t. c. it is not necessary to prove that the goods were of greater value than 40s., though that may be'averred m the indicment without a videlicet. And see R. v. Burdett, 1 Ld. Raym. 149. R. v. Gillham, 6T.R. 165. Gwionet v. Philips, 3 T.R 643. and i Campb. 131,
M 2 lion,
tion, where the allegation was, that the defendant prosecuted an indictment against the plaintiff, until afterwards, sc. on a certain day named, the plaintiff was in due manner acquitted, &c.; and to prove this allegation the record of acquittal was produced, which shewed that the acquittal was on another day, the Court held that the variance was not material, and that the averment had been substantially proved. Here the day was not alleged as part of the description of the record; Dut the substance of the allegation was, that the plaintiff had been acquitted on the prosecution. And "it was no more necessary," said Mr. Justice Lawrence, " to prove the precise day of the acquittal as laid in the declaration, than it is, upon an indictment for murder or in a declaration upon promises, to prove the precise day, as laid, of committing the murder or of making the promise." In this respect, it cannot be material, whether proof is by matter of record or by parol. If, indeed, the declaration had proceeded to state that the acquittal was on a certain day as appears by the record, that might have been considered as descriptive of the record, and then the variance would have been fatal. (1)
Variance in It is a rule in pleading, that every material fact which is issuable and triable, must be averred to have happened at a certain time (2). However it will not generally be necessary to prove the time precisely as laid, unless that particular time is material. Thus in an action on a promissory note, where the declaration states that the defendant on such a day made, &c., proof that he made his promissory note on a different day would be sufficient. So in an action for assault, battery, taking of goods, &c., where the defendant pleads the general issue, the plaintiff will not be confmed to the day stated in the declaration, but may prove the assault, &c. on any other day before the commencement
(1) 9 East, 161. And see Turner Wood, 4 Taunt. 13. Com. Dig. tit. v. Eylei, 3 Bos. & Put, 456. Wigley Record, (C). v. J ones, i East, 440. Readshaw r. (1) 5T.R.6aO.
Of of the action (i). If the defendant justifies by son assault on the same day, and the plaintiff traverses the cause of justification, and at the trial the defendant proves the trespass on the same day, there the plaintiff cannot give evidence of an assault on another day (2). And though the defendant should prove the assault of the plaintiff on another day, yet the plaintiff, after having made such a traverse, cannot prove anothor assault on a different
With respect to variances in the place laid in the decla- v»ria"ce ration: It has been held, in an action for non-residence,' where the parish was described as St. Ethelburg, and proved to be St. Ethellmrga, that the variance was fatal (4): so, in an action of ejectment, where the premises were described as situate in the united parishes of A and B, but were proved to be in the parish of A, and the two parishes were united only for the single purpose of maintaining the poor (5). But where the premises were described as lying in the parish of A and B, and it appeared in evidence that part lay in A and part in B, but that there was no such parish as the parish of A and B, the Court held, that the word parish was mere surplusage, and that the plaintiff was entitled to recover the lands in B as well as in A (6). So, where the premises were laid to be in the parish of FarnJiam, and were proved to be in the parish of Farnham Royal, but it did not appear that there were two Farnhams, the Court held that the variance was immaterial (7); so also, in an action for use and occupation, where the premises were proved to lie in the parish of St. Mary Lambeth, but
(i) Co. Lit. 181,a, h. 1 Roll Ah. (4) Wilson q, t. v. Gilbert, 1 Bos. fc
687,689. tit. Verdict, (N). Com. Dig. Put 181.
tit. Pleader. (S. t1). (5) Goorftitle dem. Pinsent v. Lam
* (1) Dowries v. Skrymsher, BrownL miman, 1 Campb. 174.
133; tRolLAb. 687.1 30, S.C. (6) Goodtitle dem. Bremridge v.
?3) 1 Roll. Ab. 68c, tit. Evidence, Wilter, 4 Taunt. 671. The case of
(C), Art. 3. Thornton r. Lv&ter, Wilson v. Clark, therefore, (1 Esp. N.
Cro. Car. 514, centra, (Jones J. doubt- P. C. 173.), seems doubtful,
ingl, RuU. Ab. Ib. bee a Saund. 5. (7) Doe dem. Toilet v. Salter,
were described in the declaration as in the parish of Lambeth, which last was the name generally known (i). And this has over-ruled an older case, where a variance between the parish of Chelsea and the parish of St. Luke's Chelsea was held at nisi prius to be fatal (2). In an action for use and occupation, although it is not necessary to describe where the premises lie (3), yet if they are described in the declaration as situate in a certain parish, and are proved to be in a different parish, the plaintiff cannot recover (4). Where the parish or place mentioned is mere matter of venue, and not of local description, (as, in an action for a nusance defamatory to the plaintiff's character, where the declaration stated, that the defendant erected the nusance, complained of, in the parish of A, in a street adjoining to the plaintiff's house, &c.) the actual situation of the house is immaterial, and the plaintiff may recover, though it should be proved that there is no such parish. (5)
The same rule, which has been laid down with respect to civil actions, applies also to the case of an indictment; on the trial of which, it will be sufficient to shew, that the offence was committed in some place within the county or other division; and it seems to be agreed, says Mr. Serjt. Hawkins (6), that a mistake of the place in which an offence is laid will not be material upon the evidence on "not guilty" pleaded, if the fact be proved at some other place in the same county. Where a felony is stated to have been committed at a certain place named in the indictment, and there is no such place in the county, the indictment ii void. (7)
(1) Kirtland v. Poussett, i Taunt. (5) Jcfferies v. Duneombe, 1 1 East, J7o. 226; iCampb.3, S.C.
(2) And see 3 Taunt. 140. (6) B. 2. ch. 25. s. 84.
(3) Kingv. Fraser, 6East, 348. (7) St. 18 Hen. vi. c. 12. Hawk.
(4) Guest v. Caumont, 3 Campb. ib. See the case of Goodtitle dcm. 13j. Bremridge v. Walter, mfra, p. 165.
That the best Evidence is to be produced, which the Nature ef the Case admitu
The next general rule is, that the best evidence must be given of which the nature of the thing is capable (i). The true meaning of this rule is, not, that courts of law require the strongest possible assurance of the matter in question, but that no evidence shall be given, which, from the nature of the thing, supposes still greater evidence behind in the party's possession or power; for, such evidence is altogether insufficient, and proves nothing, but carries with it a presumption contrary to the intention for which it is produced. Thus, if a party offer a copy of a deed or will, where he is able to produce the original, this raises a presumption, that there is something in the deed or will, which, if produced, would make against the party; and therefore the copy in such a case is not evidence. But, if he prove the original deed or will to be in the hands of the adverse party, to whom he has given notice to produce it, or that the original has been destroyed without his default, no such presumption can reasonably be made, and a copy will be admitted, because then such copy is the best evidence that can be produced (2). For the same reason parol evidence is not admissible to prove the contents of a licence from the crown, though the licence is lost, because there must be some register of it at the secretary of state's office, and that register would be better than parol evidence. (3)
This principle is strongly illustrated by a late case (4), where the question was, whether the defendants had put on board the plaintiff's ship some articles of a combustible
fl) Gilh.Ev.13. Bull. N. P. 193. (3) Mund v. Wilkinson, 1 Taunt,
(x) Gilo. Ev. 13. Bull. 203. Ga- 137noai v. Swift, 1 Taunt. (4) Williams v. East India Company,
3 East, 193, ioi.
M 4 and