PART IV. *There seems, however, to be little difference in principle between such averments and any other; for if they are essential, they must be proved; and if they be alleged with descriptive circumstances, such description is material. Matter of Thus, if the terms of a contract be stated, though unne- inducement. cessarily, by way of inducement, they must be proved (y). 2dly. It is next to be observed, that in many instances Formal by circumstantial allegations are noticed by the law itself as law. merely formal, and as requiring no proof. These are to be regarded as exceptions made by the law for convenience sake. Thus, it is laid down as a general rule in the Trials per Pais (z), that "where the issue taken goeth to the point of the writ or action, there modo et forma are but words of form." The ground of which seems to be this, that where * certain specific facts or actual results alone are essential * 1553 to support the charge or claim, and the means, manner, and circumstances, occasioning or accompanying such facts or results, are purely immaterial, the latter may, without inconvenience, be regarded as merely formal, although perhaps originally such allegations, as well as those of time and place, might require strict proof. In trover, for instance, the alleging the mode by which the defendant became possessed of the goods, whether by finding or otherwise, is purely formal, and requires no proof; for the gist of the action is the conversion (a). So upon indictments for homicide, the allegations of the kind of weapon or poison used to occasion the death need not be precisely proved (b); it is sufficient if the same kind of death be proved with that alleged. unless from the very nature of the claim or charge the precise sum be material. Supra, 1544, and R. v. Gilham, 6 T. R. 265. On the other hand, it is certain, that whenever an allegation is material and essential, whether it fall within the scope of the term inducement, or not, or whatever its connexion may be in the order of time, or otherwise, with the other essential averments, it must be proved according to the precise and particular, though superfluous, description with which it is encumbered. Vide supra, 640. 1242-1548. (y) Bristow v. Wright, Doug. 665. And so in all cases of tort where matter of contract is alleged, though but by way of inducement. Lopez v. De Tastet, 1 B. & B. 538. Corney v. Mendez de Costa, Í Esp. C. 302. Weall v. King, 12 East, 452. [Supra, 1548.] (z) 389. (a) See Trover. (b) See Macalley's case, 9 Co. 65. PART IV. Formal by law. Macalley's case (c) is a very strong instance to show the extent of this doctrine. The indictment for the murder of Fells alleged that P. sheriff of London, upon a plaint entered, issued his precept to Fells, serjeant at mace, to arrest Murray, but on the evidence it appeared that there was in fact no precept; but that by the custom of London, after a plaint had been entered, any serjeant ex officio might arrest the defendant. in the suit. But it was held by all the Judges that the variance was immaterial, for the warrant was but one circumstance, which was not necessary to be precisely pursued in evidence to be found by a jury; for the indictment alleged that the prisoner killed Fells of malice prepense; and although the evidence varied from the special matter, 1554 yet, as it showed that the prisoner killed Fells of malice prepense it maintained the indictment. Where the demandant, in a writ of entry on an alienation made by the tenant in dower to his disinherison, alleges an alienation in fee, and the tenant pleads that he did not aliene modo et forma, as the demandant has alleged, and it is found that the tenant aliened in tail or for life, yet the demandant is entitled to recover; for the real question is, whether the tenant did aliene (d). So if in assize of darrein presentment the plaintiff allege an avoidance by privation, and the Jury find an avoidance by death; for the mere result, viz. the avoidance, is alone material; the manner of it is immaterial (e). So again, if in an action against a wrong-doer for a disturbance of the plaintiff in his office, he mistake his title in the declaration, and the special verdict find a title for him different from that on which he has declared, yet judgment will be given for him notwithstanding the variance (f); for as the disturbance occasions the action, the finding the title is held to be purely superfluous. (c) 9 Co. 65. (d) Litt. sec. 483; Trials per Pais, 387. (e) 1 Inst. 282; Trials per Pais, 385. So if guardians of a hospital bring assize against the ordinary, and he pleadeth in his visitation he deprived him as ordinary, whereupon issue is taken, and it is found he deprived him as patron, the ordinary shall have judgment; for the deprivation is the substance of the matter. (f) Cro. Eliz. 336. 419; B. N. P. 76; 1 Will. Saund. 346 (2). Secus, if the plaintiff set out an insufficient title. Dorne v. Cashford, 1 Salk. 363. Crowther v. Oldfield, 2 Ld. Raym. 1230; 1 Will. Saund. 346, a. note (2.) But on issue joined on a plea of justification, under a right of common, to an action of trespass, or avowry damage-feasant, the title, by prescription or otherwise, must be proved as laid. Supra, 1211.. Sir Francis Leke's case, Dyer, 365 ; law. ᏢᎪᎡᎢ IV. In these and the like instances the variances are * immaterial, not because such allegations are in their own nature merely formal, but because the law considers them to be so with reference to the matter directly in issue; the Formal by very same allegations, where the point arose collaterally, would be material. For it is also laid down as a rule, that "where a collateral point in pleading is traversed, there modo et forma is of the substance of the plea (g)." And therefore, if a feoffment be pleaded by deed, and the defendant traverses "absque hoc quod feoffavit modo et forma," the Jury cannot find a feoffment without a deed (h). So if a feoffment by two be alleged, and it be found to be the feoffment of one only (i). Another distinction is, that although the issue be upon a collateral point, yet, if by the finding of part of the issue it shall appear to the Court that no such action lieth, there modo et forma are but words of form (k). That is, partial and deficient proof may be sufficient * in law to show that no action is maintainable, although* 1556 by reason of the defect the proof be insufficient to support the affirmative of the issue, the proof of which lies on the defendant. The lord distrains; the tenant brings trespass. The lord pleads that the tenant holds by fealty and rent, and prays judgment of the writ. The tenant replies that he does not hold modo et forma. If the verdict find that the tenant holds by fealty only, yet the writ shall abate, although the tenant does not hold as the lord has alleged; for as the plaintiff was tenant, he cannot maintain trespass 1 Will. Saund. 346, n. (2). Even although it would have been sufficient for the defendant to have relied on his possession alone: as where the defendant justifies an escape of the cattle from a common to the close in which, &c. through defect of a fence which the plaintiff is bound to repair, or an escape from the defendant's own close (Faldo v. Ridge, Yelv. 75); for although all that is necessary in such a case is to show that the cattle were not trespassers in the place from which they escaped, as if the defendant was tenant at will, or had a license to put the cattle there, yet if the defendant does not rely upon the averment of possession, but alleges a precise estate, the averment is traversable. Sir Francis Leke's case, Dy. 365; 1 Will. Saund. 346, (2). [Yelv. 195. a. note (1). Dalis. 42. pl. 20; 2 Saund. 207, a. n. (24).] (g) Trials per Pais, 389; B. N. P. 301. See the preceding note. (h) Co. Litt. 282; Trials per Pais, 389. (i) Ibid. So if the issue be, whether A. and B. were churchwardens, proof that one was, but that the other was not, would not be sufficient. 2 Roll. 706; B. N. P. 299. (k) Co. Litt. 282; Trials per Pais, 389; B. N. P. 301. PART IV. Formal by law. Videlicet. against his lord, although he distrain for services which he ought not to have (); for the only material question is, whether he holds of him, or not (m). But it would have been otherwise in replevin, for there the avowant must make out his title, to have a return according to his allegations (n). Probably in early times precise proof was required of the formal allegations, even of time and place; indeed, the Statute of Gloucester in the case of an appeal of murder required the very hour to be stated; an idle and nugatory enactment, unless proof of the averment were requisite. The place was essential for the purpose of awarding the venire. The inconvenience of requiring strict proof has, in these and many other instances, left the mere form and semblance of precision; and as the law pronounces such allegations to be purely formal, they deceive no one. * 3dly. In some instances precise proof is rendered unne* 1557 cessary by the form of allegation (o), which shows that the party did not mean to bind himself to precise proof; as where sums or magnitudes are averred under a scilicet or videlicet, the effect of which is to render precise proof unnecessary, in some instances, where it would otherwise have been essential (p); although it never renders precise proof unnecessary where from the nature of the case it is otherwise essential (g). Neither does the want of it ever render precise proof necessary, where from the nature of the case it is not essential (i). Where the consideration was alleged to be the forbearance of 211. 6s. without a videlicet, and the proof was of a forbearance of 20l. 18s., the variance was held to be fatal (r). (1) Co Litt. 282; Trials per Pais, 387; B. N. P. 301. (n) B. N. P. 302. (0) See the observations of Chambre, J. 1 N. R. 210. (p) See 2 Will. Saund. 291. R. v. Aylett, 1 T. R. 63; Stark. Crim. Plead. 252, 2d edit. Symmons v. Knox, 3 T. R. 65. [2 Pick. 222.] (q) Infra, 1558; 4 Taunt. 320; 1 T. R. 656. [Vail v. Lewis & al. 4 Johns. 450; Bissel v. Drake, 19 Johns. 66.] (i) An allegation under a videlicet, that the Court was sitting on a day out of term, may be rejected as surplusage, Luckett v. Plumber, 2 B. & B. 659; and see Draper v. Garratt, 2 B. & C. 2. Supra, 1534. An allegation of a promise to remove goods within a reasonable time is satisfied by evidence of a promise to remove them in a month, Hore v. Milner, Peake's C. 42, a. (r) Arnfield v. Bate, 3 M. & S. 173. So where the consideration PART IV. But where the declaration alleged that S. F., the father of the defendant, was indebted to the plaintiff in a certain sum, to wit, the sum of 26l. 13s. 6d., being the unpaid balance of a larger sum; and that in consideration of the Videlicet. plaintiff's forbearance to sue for the recovery of the balance of 261. 13s. 6d., the defendant undertook to accept a bill for the amount of the balance of 261. 13s. 6d., and the balance really due was 261., it was held to be no variance, the payment of the balance being the consideration for the promise, and the statement of a particular sum was unnecessary (s). * But it is a general rule that a videlicet will not protect, where precision is rendered essential by the nature of the case. The defendant avowed that the plaintiff held certain lands of him, as his tenant, at a certain rent, to wit, at 1107. rent, payable half-yearly; upon non tenet pleaded, it appeared that the land had been let by a written contract at 15s. per acre, and that the whole amounted to 1117. per annum; and the variance was held to be fatal (t). Where the defendant pleads a set-off to a bond the averment of the sum really due is material, and traversable, though laid under a videlicet (u). for the purchase of sheep was alleged to be 54l. 11s. 6d., and turned out to be 54l. 12s. 6d. Durston v. Tuthan, cited in Symmons v. Knox, 3 T. R. 67; 2 Will. Saund. 291, c. In the case of Laing v. Fidgeon (6 Taunt. 108), it was held that an allegation of a contract to deliver saddles to the plaintiff at a reasonable price, was supported by proof of an agreement to deliver saddles at 24s. and 26s. And it seems, that if the declaration state the consideration to be certain reasonable reward, proof that a specific sum was agreed on will not be material as to variance. Bayley v. Tucker, 2 N. R. 458. (s) Bray v. Freeman, 2 Moore, 114. [8 Taunt. 197. S. C.] (t) Brown v. Sayce, 4 Taunt. 320. Note, that Mansfield, C. J. said that the record would certainly be evidence as to the amount of the rent between the same parties in another action. So where the plaintiff alleged that he had agreed to sell, and the defendant to buy, certain goods and merchandises (to wit, 328 chests and 30 half-chests of oranges and lemons), at and for a certain price (to wit, the price of 6231. 38.), and the contract proved was for 300 chests and 30 half-chests of China oranges, and 20 chests of lemons, it was held to be a fatal variance. Crispin v. Wiliamson, 1 Moore, 547. [8 Taunt. 107, S. C.] See also Green v. Rennett, 1 T. R. 656. White v. Wilson, 2 B. & P. 116; infra, 1560. Pope v. Foster, 4 T. R. 590. Grimwood v. Barritt, 6 T. Ř. 460. Johnson v. Pickett, cited ibid. infra, 1570. Bristow v. Wright, Dougl. 665. R. v. Mayor of York, 5 T. R. 71. Gilbert v. Stanislaus, 3 Price, 54; supra, 1545. (u) Grimwood v. Barritt, 6 T. R. 460. * 1558 |