PART IV. * 1534 Surplusage. also, that the facts proved be alone sufficient in law to support the charge or claim. And that redundancy of proof will not be material unless that which is proved, but not alleged, contradict or disprove that which is alleged. * In the first place, it seems that the omission to prove circumstances which are alleged, but are not essential to the claim or charge, but are mere surplusage, and might have been wholly omitted, or are merely cumulative, or which operate merely in aggravation, or affect merely the extent of damages, is not material, provided the circumstances so rejected do not operate by way of description of others which are material. It is a general rule, that whenever an averment may be wholly rejected without prejudice to the charge or claim (p), proof is unnecessary. Thus, where a declaration for an injury to the plaintiff's reversionary interest in land alleged that the premises were, at the time of the injury, and still were, in the occupation of A. B., whereas the occupation of A. B. had ceased previous to the commencement of the action, the variance was held to be immaterial, the possession of A. B. as tenant at the time of the injury being properly described (q). Where the plaintiff, in an action for breach of a warranty in selling goods unfit for sale, alleged in his declaration that the defendants knew the goods to be unfit for sale, it was held that the allegation of knowledge, being immaterial, need not be proved (r). So where an indictment alleged a robbery to have been committed in the dwelling-house of A. B., it was held that a variance as to the owner's name was immaterial, as it was not essential to the crime of robbery that it should have been committed in a dwelling (p) See the observations of Lawrence, J in Williamson v. Allison, 2 East, 452. The rule is of course otherwise where the averment cannot be wholly rejected without also rejecting something essential to the action. (q) Vowles v. Miller, 3 Taunt. 137. (r) Williamson v. Allison, 2 East, 452. Allegation (in an action against a sheriff for taking insufficient sureties on a replevin-bond,) that the party replevying levied his plaint at the next county-court, to wit, at the county-court holden on, &c. before A, B, C, &c. suitors of the court, the evidence was of a plaint levied at a court holden before E, F, G, &c. and held to be sufficient; for the allegation, that the court was held before A, B, C, &c. was immaterial, and might have been altogether omitted, Draper v. Garratt, 2 B. & C. 2. And note, that it was observed by all the Judges that the allegation was under a scilicet. house (s). PART IV. If an offence at common law be laid to have been committed against the form of the statute, the allegation may Surplusage. be rejected (u). Where the plaintiff alleged, that before the publication of a libel by, the defendant the plaintiff's carriage came in contact with a carriage in which E. S. was riding, and that the accident happened without any default on the part of the plaintiff, and then alleged a publication of a libel of and concerning the accident, and upon the evidence it appeared that the accident did happen through the default of the plaintiff, it was held to be no variance so as to bar the plaintiff from recovering as to part of the libel not justified, the allegations being divisible, and the averment that the accident happened without the plaintiff's default being an immaterial circumstance (x). So where allegations are merely cumulative. In an ac- Cumulative tion for words it is sufficient to prove so much of the words allegations. laid in any one count as are actionable (y). Where an information for a seditious libel alleged that outrages had been committed in and in the neighbourhood of Nottingham, it was held that the allegation was divisible, and that it was sufficient to prove that outrages had been committed fourteen or fifteen miles from Nottingham (z). 1536 * Where an indictment charges a defendant with composing, printing and publishing a libel, he may be found Proof of part. guilty of the printing and publishing only (a). If an indictment for treason charge several overt acts, it is sufficient to prove one (b). (s) Pye's case, East's P. C. 785; Johnston's case, Ibid. 786. (t) R. v. Minton, East's P. C. 1021. (u) 5 T. R. 162; 4 T. R. 202; 1 Saund. 135, n. 3. [16 Mass. Rep. 385. 3 Yeates, 407. 3 Day, 103. Acc. See 1 Chit. Crim. Law, 276. 289. Yelv. 116, note.] (x) Lord Churchill v. Hunt, 2 B. & A. 685. (y) Compagnon v. Martin, Bl. Rep. 794. R. v. Drake, 2 Salk. 660; Dy. 75, a. Hardr. 470. Supra, 845. Flower v. Pedley, 2 Esp. Č. 491. Secus, where the words alleged, but not proved at all, qualify those which are proved. (z) R. v. Sutton, 4 M. & S. 532. (a) R. v. Williams, 2 Camp. 507. R. v. Hunt, Ib. 583; 2 East's *P. C. 515, 6. (b) Fost. 194. VOL. II. 61 PART IV. On an indictment for feloniously forging and causing to be forged, the prisoner may be convicted of either. Where a declaration under the Bribery Act alleged that Proof of part. the bribe was to induce White to vote for Mr. Lockyer and Lord Egmont, it was held to be sufficient to prove that the bribe was to give his vote for Mr. Lockyer (c). In an action by the husband for a malicious prosecution of the husband and wife, the plaintiff is entitled to recover in respect of a malicious prosecution of the wife (d). In an action against the sheriff for suffering the husband and wife to escape upon an execution founded on a debt due from the wife before coverture, the plaintiff is entitled to recover, on proof that the husband alone was taken in execution, and suffered to escape (e). If a plea allege two matters, either of which amounts to a justification in trespass, it is sufficient to prove one, though the whole be put in issue by the general plea of de injuria (f). If the defendant avow for rent and a nomine pœnæ toge* 1537 ther, without alleging any demand of rent, the * avowry is good for the rent, though it be ill for the penalty (h). Aggravation. And not only may merely useless and cumulative averments be rejected, but so also may averments which are material by way of aggravation, provided they be not essential to support the charge or claim, or describe or limit that which is essential. As in civil cases, where matters are alleged in aggravation of trespass or slander, or other ground of action. Thus, if in trespass quare clausum fregit the plaintiff allege that the defendant is an inferior tradesman or dissolute person, although he fail in the proof, he is still entitled to damages for the trespass (i). So on indictments for special and aggravated offences, including more general ones, if the prosecutor fail in proving the circumstances in which the aggravation consists, the defendant may still be convicted of the inferior and more simple offence (k). (c) Coombe v. Pitt, 3 Burr. 1586. (d) Smith v. Hixon, 2 Str. 977. (e) Roberts & Ux. v. Herbert, 1 Sid. 5; B. N. P. 299. (f) Spilsbury v. Micklethwaite, 1 Taunt. 147. (h) 1 Saund. 286; B. N. P. 56. (i) Pallas v. Rolle, 2 Bl. Rep. 900. (k) Stark. Crim. Plead. 323, 2d edit. Macally's case, 9 Co. 67, b.; Co. Litt. 282, a. But where an indictment alleged that the defendant rescued goods which had been seized by the prosecutors, Under a count against a sheriff for a voluntary escape, the plaintiff is entitled to recover if he prove a negligent escape (1). PART IV. In the case of Coombe v. Pitt (m), Lord Mansfield said "In penal actions, the material fact must be charged, and a fact must be proved in such a manner that all those consequences will follow the verdict * which ought to attend * 1538 it. But aggravations, and all circumstances that do not Omission to vary the offence, are out of the case as to the necessity of prove the proving them." So in general a variance as to the extent of the damages alleged is immaterial. If a plaintiff declare on a policy for a total loss he may recover for a partial loss (n). So if a plaintiff prove part of his breach of covenant (0), or promise (p). But here, as in all other cases, although the omission to prove that which operates merely by way of aggravation will not be fatal, yet part of that which is alleged, and which is sufficient to support the charge or claim, must be proved. The plaintiff, in an action of covenant, alleged that the defendant had not treated the farm in a husbandlike manner, but on the contrary thereof had committed waste. The defendant pleaded that he had not committed waste, &c. and issue being taken on this plea, it was held that the plaintiff could not go into evidence to show improper treatment of the farm, short of the commission of waste (q). Here it is to be observed, that as the only breach in issue was the commission of actual waste, a term of known legal import, acts of bad husbandry not amounting to acts who were bailiffs, under a writ of fieri facias and warrant, and upon motion in arrest of judgment the indictment was held to be bad, for not setting out the writ, the judgment was arrested, although the Court held that an indictment would have lain for the single battery. R. v. Westbury, 8 Mod. 357. (1) Bonafous v. Walker, 2 T. R. 126. (m) 3 Burr. 1586. (n) Gardiner v. Croasdale, 2 Burr. 904. Nicholson v. Croft, 2 Burr. 1188; 1 Bl. Rep. 198. And see Goram v. Sweeting, 2 Saund. 205. (0) Burr. 1907; 1 Bl. Rep. 200. (p) 2 Burr. 904. (q) Harris v. Mantle, 3 T. R. 307. whole damage. 1 PART IV. Number, magnitude, extent. * 1539 Sums, &c. * 1540 of waste could not constitute any part of the breach in issue. Again, a mere variance as to number, magnitude, or extent, is not material, unless the quantum be descriptive of the nature of the claim or charge. * If a defendant be charged with engrossing 1,000 quarters, he may be convicted on proof of having engrossed 700 quarters (r). If a plaintiff declare in ejectment for a fourth part of an estate, he may recover a third of one fourth part (s). In an action of waste for cutting down trees, it is sufficient to prove that the defendant cut down part of the number alleged (t). So in an action to recover double the value of goods fraudulently removed to avoid a distress for rent, the quantum of rent alleged to be due is immaterial (u). he If a defendant avow for half a year's rent in arrear, will be entitled to a verdict, though he prove but a quarter's rent in arrear (x). Proof of the tender of a larger sum will support an allegation of the tender of a smaller sum (y). On an indictment for taking illegal brokerage, i. e. more than 10s. in the pound, it is sufficient to prove that the defendant did in fact take more, without proving the precise excess as alleged, although it be alleged without a videlicet (z). So on an indictment for extortion, alleging that the defendant extorted 20s. it is sufficient to prove that he extorted 1s. (a). In debt for using a trade without having served an apprenticeship, the whole time laid in the declaration need (r) Vaux v. Austin, Lane, 59. (s) 1 Sid. 239; 1 Burr. 330. [See Vol. II. 540, 541.] (x) Harrison v. Barnby, 5 T. R. 248. Forty v. Imber, 6 East, (z) R. v. Gilham, 6 T. R. 265. (a) Per Holt, C. J. R. v. Burdett, 1 Ld. Raym. 149. |