on an indictment for two connected felonies, the prisoner may be acquitted of one and convicted of the other; as, where he is charged with burglary and stealing, he may be acquitted of the burglary and convicted of the stealing, and vice versâ (c); or on a charge of murder, he may be convicted of manslaughter, for the unlawful killing is the substance of the charge, and the malice is only matter of aggravation (d). So, if a prisoner be charged with killing with a dagger, it will be sufficient if the evidence prove a killing with a stick; or if he be charged with killing with one kind of poison, and the evidence prove a killing with another. But if the charge be for killing by poison, and the evidence prove death by a weapon or a blow, this will be a fatal variance; for a prisoner cannot be expected to be prepared with evidence to refute a charge so totally distinct from that which is laid in the indictment. So, where A. is charged with giving a mortal blow; and B. and C. being present, aiding and abetting; the indictment will warrant a conviction, although the evidence prove B. to have given the blow, and A. and C. to have been present, aiding and abetting; for all are principals, and the blow is the blow of them all. But if two are charged as principals, and one appear to be only an accessary, he must be acquitted, for the legal offences in this case are different.

If an averment be essentially descriptive of the substantial charge, it must be proved. Thus, on an indict

(c) 2 Hale, P. C. 302.

(d) Mackalley's case, 9 Rep. 676.

ment for stealing live turkeys, a prisoner cannot be convicted of stealing dead turkeys (e). And on an indictment for obtaining money or goods by false pretences, the pretence which really operated on the prosecutor's mind must be alleged in the indictment (ƒ).

(e) R. v. Edwards, R. & R. 497.
(f) R. v. Bulmer, L. & C. 476.

CHAPTER XX.

ON VARIANCES AND AMENDMENTS.

Not only is it necessary that the substance of the case made by each party should be proved, but that the case proved should be substantially the same as that stated on the record. When this rule is violated, the party on whom the burden of proof lies must either submit to a nonsuit, to a dismissal of his bill, or to an adverse decision. In this case there is said to be a variance between the matter alleged, and the matter proved; and whenever the matter so alleged was not proved and could not at common law be struck out, or passed over as surplusage, the consequences were those which have just been stated. Therefore the same agreement as stated upon the record must be proved by the evidence, for if it differs the variance is a fatal one (a); but equity will sometimes, in special cases when an agreement is admitted by the answer different to the one alleged in the bill, permit the plaintiff to abandon the latter agreement and adopt the former (b). The rule previously alluded to still remains the same; and as it was originally established to check the carelessness and laxity of pleaders, to save the time of the courts, and to prevent parties who

(a) Legh v. Haverfield, 5 Ves. 452.

(b) Per Lord Redesdale, Lindsey v. Lynch, 2 Sch. & L. 1.

came prepared with evidence to meet one kind of issue from being prejudiced by being suddenly called on to meet a different issue; so the rule still holds that a material variance between the issue and the evidence will be fatal to the party who is responsible for the proof of the issue. But as the operation of this rule. was found to work great hardship in its original shape, even when qualified by the principles of surplusage, several statutes have been passed within the last thirty years, by which, at length, almost unlimited powers of amending records are given to the Common Law Judges whenever they are of opinion that the justice of the case requires such intervention.

The first of these acts (9 Geo. 4, c. 15), commonly called Lord Tenterden's Act, after reciting that—

"Great expense is often incurred, and delay or failure of justice takes place on trials, by reason of variances between writings produced in evidence, and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case; and such record cannot now in any case be amended at the trial;" for remedy thereof enacts" that it shall and may be lawful for every Court of Record, holding plea in civil actions, any judge sitting at Nisi Prius, and any Court of Oyer and Terminer, and general Gaol Delivery in England, Wales, the town of Berwick-upon-Tweed, and Ireland, if such court or judge shall see fit so to do, to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misdemeanor, where any variance shall appear between any matter in writing or in print produced in evidence, and the re

cital or setting forth thereof upon the record whereon the trial is pending; to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) as such judge or court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued shall be amended accordingly."

This act, it will be observed, gave judges a discretionary power of amending a record at trial only where there was a variance between the record and writings, or printed matter, adduced in evidence. It was fol

lowed by the 3 & 4 Will. 4, c. 42, which, after referring in the preamble to the previous act, extends the privilege of amending in civil cases by enacting that— "It shall be lawful for any Court of Record, holding plea in civil actions, and any judge sitting at Nisi Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document on which any trial may be pending before any such court or judge, in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record, writ, or document on which the trial is proceeding, of any contract, custom, prescription, name, or other matter in any particular or particulars in the judgment of such court or judge not material to the merits, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence; to be forth