Thus in the case of Doe v. Jesson, where it was proved that a person wênt to sea at a particular time, which was the last account given of him, his death was presumed at the end of seven years from that time. And therefore, where the defendant pleaded coverture in bar of an action of assumpsit, and proved her marriage, and that her husband went abroad twelve years before the commencement *of the action, this was held not to be sufficient, and the defendant was required to prove that her husband was alive within seven years (1): without such additional proof, the jury might have presumed the death of the husband at the time of the promise, which would have been against the defendant's plea (a).

Although, in general, it is necessary for a party, who brings an action, to prove all the material facts which he alleges in support of his claim, yet where the defendant

(1) Hopwell v. De Pinna, 2 Campb. 118.

shall absent him or herself the one from the other by the space of seven years together within the king's dominions, the one of them not knowing the other to be living within that time." It has been held, that the last clause, (namely, "the one of them not knowing," &c.) relates only to the 2d clause, and not to the first respecting commorancy beyond the seas; and consequently that the second marriage is not felonious, where either of the parties is beyond the seas for seven years, though the party in this country had notice that the other was living. 3 Inst. 88. 1 Hale P. C. 692. 4 Bl. Com. 164.

(a) So, although the proof of the fact of loss lies upon the insur ed, yet, where the vessel has not been heard of for a length of time, it will be presumed that she foundered at sea. There is no general rule established as to the period after which the presumption may be made, but each case must depend on its peculiar circumstances; and all that it is incumbent on the insured to show is, the time when the vessel sailed on the voyage insured, and that she had never been heard of at the port of destination. 2 Marsh. 488, 489, 490. Green v. Brown, 2 Str. 1199. Newby v. Read, Park 63. Cohen v. Hinckly, 2 Campb. 51. Twemlow & others v. Oswin, Id. 85. Brown v. Neilson, 1 Caines'. Rep. 525. Gor den v. Bowne, 2 Johns. Rep. 150.

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if the declaration contain several actionable words, the plaintiff will be entitled to a verdict on proving some of them (1). In the late case of Hall v. Smith (2), where the declaration stated, that the plaintiff was a trader at C. and also a trader at O., and that the defendant spoke concerning the plaintiff as such trader, that he was a bankrupt at C., &c., it was proved at the trial, that the plaintiff carried on a trade at O., but not that he carried on the other trade at C. as stated, and the words spoken of him were, that he was a bankrupt at C. in the liquor trade, (which was the trade carried on at Q.), the court held, that the substance of the charge had been proved, and that the place where the plaintiff was stated to have become a bankrupt was im material (b),

(1) Compagnon v. Martin, 2 Bl. Rep. 790.

:

(2) 1 Maul. & Sel. 287.

(b) The sense as well as manner of speaking the words must be the same: therefore, where the words were laid in the third person, "He deserves to be hanged for a note he forged on A.; proof that the words were used in the second person, "You deserve," &c. was held not to support the declaration; for there is a difference between words spoken in a passion to a man's face, and spoken deliberately behind his back, the first being more excusable. Aparillo v. Rogers, Bull. N. P. 5, 2 Esp. Dig. 23. 8 Johns. Rep. 75. Contra, Tracy v. Harkins, 1 Binney 395. n. So, words laid affirmatively are not supported by proof of words spoken interrogatively as where the words laid were, "he cannot pay his labourers;" evidence that the defendant had asked a witness, "if he had heard Barnes could not pay his labourers," was held not to support the declaration. Barnes.v. Holloway, 8 Term Rep. 150. So, in an indictment the words were laid to have been spoken of a justice of the peace in the execution of his office; at the trial the words were proved to have been spoken to the justice, and judgment was, therefore, given for the defendant. The King v. Berry, 4 Term Rep. 217. If the words laid are, that the plaintiff stole the goods of A., proof of the defendant's saying, that the plaintiff stole the goods of B., would not support the declaration; because, although stealing the goods of B. is an indictable offence

In an action of replevin, where the defendant avowed taking the cattle as damage-feasant, the plaintiff pleaded in bar, that one W. was seized of a house and land, &c. whereto he had common, &c. and demised the same to him to hold from a certain day next before for a year, the avowant traversed the lease modo et forma, upon which issue was taken; the jury found a special verdict, that W. made a lease to the plaintiff on the day stated for a year; and the plaintiff had judgment, for although this is not the same lease as pleaded, (since this begins on the day and the other not so soon), yet, the court said, the substance of the issue is, whether or not the plaintiff had such a lease, as by force thereof he might have common at the time, and this appeared to be the case here (3). But, the court added, it (the verdict) must not depart altogether from the form of the issue; for if it had been found that he had right of common by a lease from another, or as an owner, that had been clearly out of the issue both in matter and form. And they admitted, that if the plaintiff had declared *thus in ejectione firme, it would have been clearly against him, for there he demands and recovers the term, and therefore must make his title truly. In the principal case, as the reporter observes, the jury might have found directly against the plaintiff non dimisit modo et forma, and could not safely have found a general verdict for him; but, the jury having found specially, the court gave judgment for the plaintiff (1).

(3) Pope v. Skinner, Hob. 72. S. C. cited, Bull. N. P. 300.

(1) S. C. cited as to this point, Com. Dig. tit. Pleader, S. 7.

yet it is a different offence from stealing the goods of A. So, when the defendant says, that the plaintiff with B., C. and D. conspired, &c., it is not enough to prove that he said, the plaintiff, together with B, and C. conspired, &c. ; because, although it may be indictable for the plaintiff to conspire with B. & C., yet it is a different offence from his conspiring with B., C. & D.; he may have been guilty of both, and punishable for both. Johnston v. Tate, 6 Binney 121.

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So, if the issue

In replevin, if the defendant avow taking the cattle as damage-feasant, and the plaintiff justify for common, and aver that the cattle were levant and couchant, on which issue is joined, proof only for part of the cattle is not sufficient, for the issue is upon the whole (2). joined between the parties were, whether A. and B. were churchwardens, proof, that one was and not the other, would not be sufficient (3). So, where the declaration averred, that the plaintiff was constable of a particular parish, and that he was assaulted in the execution of his office as constable, and it appeared on the evidence, that he' had been sworn in to serve for a whole liberty, of which the parish formed a part, this was held to be a material variance (4).

On a charge of petit treason, if the killing with malice is proved, but no circumstances of aggravation are proved to make the offence treasonable, the prisoner may be found guilty of the murder. So, on an indictment for burglary and stealing goods, if it appear that no burglary was committed, as where the breaking and entering were not in the night, the prisoner may be found guilty only of the simple larceny (5); so, on a charge of robbery, where the *property was not taken from the person by violence or by putting him in fear (a). So, on the trial of an indictment for murder, the jury may find the prisoner guilty of manslaughter only; for the principal matter is the killing, and the malice is only a circumstance in aggravation (1). And

(2) Sloper v. Allen, 2 Roll. Ab. 706. tit. Trial, C. 41. S. C. cited Bull. N. P. 299. See also Coney v. Verden, cited from MS. in 1 Selw, N. P. 393; Griffin v. Blandford, Cowp. 62; Brook v. Willett, 2 H. Bl. 224; 1 Campb. 314, 5; as to variances in the proof of a prescription or custom.

(3) Bull. N. P. 299.

(4) Goodes v. Wheatly, 1 Campb. N. P. C. 231.

(5) 2 East P. C. 513.

(1) Mackalley's case, 9 Rep. 67. b. Co. Lit. 282. a. Gilb. Ev. 233.

(a) So, on an indictment for a forcible entry and detainer, the jury may find the defendant guilty of the detainer only. The Peo nle v. Anthony, 4 Johns. Rep. 198.

if the manner or means of the death proved agree in substance with the means charged in the indictment, it will be sufficient; as, where the indictment is for killing with a dagger, and the evidence prove a killing with a staff (2); so, if the indictment be for killing with one sort of poison, and the evidence proves the killing with another, such evidence maintains the indictment, because the proof of the instrument is not absolutely necessary to the proof of the fact, itself (2); but if the charge is for poisoning, and the death is proved to have been caused by striking or starving, &c., this evidence would not support the indictment as the species of death in the one case is totally different from that in the other (3).

So, if the indictment charges that A. gave the mortal blow, and that B. and C. were present abetting, &c., but on the evidence it appears that B. struck, and that A. and C. were present, &c., this is not a material variance, for the stroke is adjudged in law to be the stroke of every one of them, and is as strongly the act of the others, as if they all three had held the weapon, and had altogether struck the deceased (4). But if two persons are indicted as principals, and one is proved to be only accessary, he must be discharged on this indictment (5). So, one indicted as accessary before cannot be convicted upon evidence proving him to have been (principal in the second degree) present aiding and abetting at the fact (6). In Mackalley's case (7), where the prisoner was tried for the murder of a *sergeant at mace in London, the indictment charged, that the sheriff made a precept to the sergeant for the arrest, and it appeared upon the evidence that there was no such precept, but that the sergeant made the arrest ex officio at the plaintiff's request on the entry of the plaint, according to the custom of the city; and all the judges held, that the

(2) 9 Rep. 67. a. Gilb. Ev. 231.

1 East P. C. 341.

(3) Ib. and 2 Inst. 319.

Mackalley's case, 9 Rep. 67. b. 4 Rep. 42, b. Wallis's case, 1 Salk. 334.

(5) Gilb. Ev. 233.

352.

Gordon's case, 1 East P. C.

(7) 9 Rep. 61. b. 67. a. 68. a.

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