the two questions ought to have been left distinctly and separately to the jury. And now, Scarlett, Gurney, Gaselee, and Tindal, shewed cause against the rule. By the express terms of the notice the defendants are not to be liable for any package above 57. value, unless specified, and an insurance be paid; and assuming, therefore, that the jury were of opinion that the plaintiffs were acquainted with the terms of the notice, the verdict found for the defendants was right. The case of Beck v. Evans (a) was an instance of very gross negligence, and even the authority of that case has been considerably shaken by a later decision in the Court of Exchequer, of Levi v. Waterhouse. (b) Marryat, Comyn, and R. B. Comyn, contrà. Assuming that the plaintiffs in this case were acquainted with the contents of the notice, still, as the defendants received a box of cochineal, with the contents and value of which they were acquainted, they are not discharged from their responsibility, if they have been guilty of gross negligence. Beck v. Evans is an authority in point: there the carrier had received a cask of brandy which leaked on the road, and the leak having been pointed out to the carrier's servant, he suffered it to continue, and a considerable quantity of brandy was lost. In that case, although a notice similar to the present was given, still the carriers were held responsible, because the loss accrued from their own negligence; and the late case of Bodenham v. Bennett (c), in 1819. BIRKETT against WILLAN. (a) 16 East, 244. (b) 1 Price, 280. (c) 4 Price, 31. -1819. BIRKETT against WILLAN. the Exchequer, is a strong authority to shew, that this is what the law calls gross negligence. And there, Wood Baron, speaking of these notices, says, "These special conditions were introduced for the purpose of exempting carriers from extraordinary events, but they were not meant to exempt them from due and ordinary care;" besides, this case does not come within the terms of the notice, for here the box was not lost or damaged, but it was mis-delivered. ABBOTT C. J. I certainly thought at the trial, that supposing the plaintiffs to have been acquainted with the terms of the notice, this was not such a case of gross negligence as would throw the onus of responsibility on the carrier. Upon consideration, however, I am not so clear upon that point. The case of Bodenham v. Bennett, in the Exchequer, is an authority the other way; and upon the whole, I think there should be a new trial. (b) Rule absolute. (a) See Wilson v. Freeman, 3 Campb. 527. Friday, disturbance of RICKETTS against SALWEY. In an action for ACTION for disturbance of plaintiff's right of comDeclaration stated, that the plaintiff was plaintiff's right of common, the declaration stated that he mon. possessed of a certain messuage, and divers, to wit, one was possessed of a messuage and land, with the appurtenants, and by reason thereof ought to have common of pasture, &c.: Held that this allegation was divisible, and that proof that plaintiff was possessed of land only, and entitled to the right of common in respect of it, was sufficient to entitle him to damages pro tanto. hundred hundred and fifty acres of land, with the appurtenants situate and being in the parish of Ashford Bowdler, in the said county, and by reason thereof, during all the time aforesaid, ought to have had, and still of right ought to have common of pasture for all his commonable sheep, levant and couchant, in and upon said messuage and land with the appurtenants, in, over, and upon a certain waste or common called the Wheat Common, situate and being in the parish aforesaid, in said county, every year and at all times of the year, as to the said messuage and land with the appurtenants, belonging and appertaining. And that the defendant disturbed him in that right, by digging stone quarries upon the common. Plea, not guilty. At the trial at the last Shrewsbury assizes, before Garrow B., it appeared that the right of common was claimed by the plaintiff in respect of Ashford Hall, and the land usually held with it, on which issue the plaintiff failed. It appeared, however, that he was possessed of land within the parish, in respect of which he was entitled to a right of common, but there was no messuage upon this land. The learned Judge directed a verdict to be entered for the plaintiff, giving to the defendant leave to move to enter a nonsuit. W. E. Taunton, in last Michaelmas term, having obtained a rule nisi for this purpose, on the ground that the proof did not support the right of common, as claimed in the declaration, Puller and Winter (Jervis was with them) shewed cause. Here, the title is only matter of inducement, and in Com. Dig. Action on the Case for a Disturbance, B.1., it is laid down, that in such a case, a variance found 1819. RICKETTS against SALWEY. by 1819. RICKETTS against SALWEY. by verdict from the prescription alleged is only inducement, and does not hurt. In Yarly v. Turnock (a), the declaration alleged, that plaintiff was seized of sixty acres of pasture, sixty of meadow, and eighty of arable land, and entitled, in respect of them, to a right of common. There the jury found a right of common in respect of ninety acres of arable, meadow and pasture. And there Doddridge J. takes the distinction, for he says, "Here the demand is of damages for a tort done to his common, and if it be found in any part, he has damages accordingly:" and he then notices the cases of prescription and contract which must be proved as laid. That case, therefore, is precisely in point to this. So in Gregory v. Hill (b), it was held that a right claimed in respect of a messuage" and twenty acres was well supported by evidence of a right in respect of a messuage and eighteen acres only. Bertie v. Beaumont (c), Strode v. Byrt (d), and Ferrer v. Johnson (e), shew also that in such cases a variance from the title, which is set out only by way of inducement, is immaterial. They also quoted Vowles v. Miller (ƒ), and Winn v. White. (g) Taunton and Campbell, contrà. The declaration after setting out plaintiff's possession of a messuage and land with the appurtenants, proceeds, that "by reason thereof, he was entitled to the right of common." Now the words by reason thereof" shew that the right is claimed for both, and the word appurtenants (a) Palmer, 269. 66 connects the land and messuage together. Then, if 1819. RICKETTS against SALWEY. so, the plaintiff has not proved any title in respect of In ABBOTT C.J. The general rule of pleading in cases of tort is that it is sufficient if part only of the allegation stated in the declaration be proved, provided that what is proved affords a ground for maintaining the action, supposing it to have been correctly stated as proved. There is one exception, however, to this rule, which is where the allegation contains matter of description. Then, if the proof given be different from the statement, the variance is fatal. The only difficulty in this case is to ascertain whether these words are matter of description or not. The words are, "that the plaintiff was possessed of |