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Variance in time.

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; but 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)

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 confined 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 v. Eyles, 3 Bos. & Pul. 456. Wigley v. Jones, 5 East, 440. Readshaw v.

Wood, 4 Taunt. 13. Com. Dig. tit.
Record, (C).

(2) 5 T.R.620.

of

of the action (1). 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 another assault on a different day. (3)

With respect to variances in the place laid in the decla- Variance in place. ration: It has been held, in an action for non-residence, where the parish was described as St. Ethelburg, and proved to be St. Ethelburga, 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 Farnham, 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

(1) Co. Lit. 282, a, h. 2 Roll. Ab. 687,689. tit. Verdict, (N). Com. Dig. tit. Pleader, (S. 12).

(2) Downes v. Skrymsher, Brownl 233; 2 Roll. Ab. 687. 1 30, S. C.

(3) 2 Roll Ab. 68, tit. Evidence, (C), Art. 3. Thornton v. Lyster,

Cro. Car. 514, contrà, (Jones J. doubting), Roll. Ab. Ib. See 2 Saund. 5. note, 3.

(4) Wilson q. t. v. Gilbert, 2 Bos. & Pul 281.

(5) Goodtitle dem. Pinsent v. Lam-
miman, 2 Campb. 274.

(6) Goodtitle dem. Bremridge v.
Walter, 4 Taunt. 671. The case of
Wilson v. Clark, therefore, (1 Esp. N.
P. C. 273.), seems doubtful.

(7) Doe dem. Tollet v. Salter,
13 East, 9.

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were described in the declaration as in the parish of Lambeth, which last was the name generally known (1). 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 is void. (7)

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SECT. VI.

That the best Evidence is to be produced, which the Nature of the Case admits.

THE next general rule is, that the best evidence must be given of which the nature of the thing is capable (1). 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

(1) Gilb. Ev. 13. Bull. N. P. 293. (2) Gilb. Ev. 13. Bull. 293. nons v. Swift, I Faunt. 507.

Gar

(3) Rhind v. Wilkinson, 2 Taunt. 237

(4) Williams v. East India Company, 3 East, 193, 201.

M 4

and

and dangerous kind, without giving due notice of their na ture. It appeared in evidence at the trial, that the goods were delivered by the officer of the defendants, with a written order to the plaintiff to receive them, in which order nothing was said as to their nature, that they were received by the chief mate of the plaintiff's ship, who had since died, and that no other person was present at the time of the delivery. It was further proved, by the captain of the ship and the second mate, that no communication had been made to either of them, nor, as far as they knew, to any other person on board. Upon this evidence, the plaintiff, who had to prove the negative, was nonsuited, on the ground, that he had not given the best evidence of the want of notice, which it was in his power to produce, by calling the company's officer, who delivered the articles on board. And the nonsuit was afterwards affirmed by the Court of King's Bench. "The best evidence, (said Lord Ellenborough in delivering the opinion of the Court,) should have been given, of which the nature of the case was capable. The best evidence was to have been had, by calling, in the first instance, upon the persons immediately and officially employed in the delivering and in the receivng of the goods on board, who appear in this case to have been the first mate, on the one side, and the military conductor the defendant's officer, on the other; and though the one of these persons, the mate, was dead, that did not warrant the plaintiff in resorting to an inferior and secondary species of testimony, (namely the presumption and inference arising from a non-communication to the other persons on board,) as long as the military conductor, the other living witness, immediately and primarily concerned in the transaction of shipping the goods on board, could be resorted to; and no impossibility of resorting to this evidence, the proper and primary evidence on the subject, is suggested to exist in this case."

It has been already observed, that, although the best evidence is to be given which the nature of the case admits,

yet

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