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points relating to this subject have been discussed in the Crown Courts, and the fair and reasonable inference to be drawn from this fact is, that, in criminal proceedings, the act of George IV. affords a most inefficient relief. In indictments for perjury, libel, and a few other minor offences, amendments may occasionally be made by virtue of the act; but in the great majority, even of misdemeanors, the most trifling variances still defeat the ends of justice, while in prosecutions for felonies, criminals are so protected by legal technicalities, that it is almost a matter of surprise that any should be convicted, except in the most simple cases.

§ 165. Having now examined most of the cases that have been decided under the acts authorising amendments, it will be expedient briefly to notice some general rules which regulate the law of variance; since, in the first place, none of those acts apply to felonies, and one alone affords a partial remedy in cases of misdemeanor; and next, although in civil causes a discrepancy between the allegation and the proof, is not, as formerly, fatal, provided that it be not material to the substantial merits, yet it may still entail considerable expense on the party, who is driven to apply for an amendment. It is therefore important to ascertain, upon what occasions the opposite party is entitled to object, that the substance of the issue has not been proved.

§ 166. The first rule, in connection with this subject is, that surplusage need not be proved, and the proof, if offered, is to be rejected. The term surplusage comprehends whatever may be stricken from the record without destroying the right of action, or the charge, on the one hand, or the defence on the other. This, it is true, is a loose, and therefore an unsatisfactory, definition; but it is difficult, not to say impossible, to find one more distinct and practical. Each case must, in a great measure, depend on its own particular circumstances, and the best means of ascertaining what will, or will not, amount to surplusage, is by examining the decisions on this subject. The case of Williamson v. Allison (a) is a leading authority. That was a declaration in tort, for breach of a warranty

(a) 2 East, 446; cited by Lord Abinger in Cornfoot v. Fowke, 6 M. & W.378.

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that some claret was in a fit state to be exported to India, whereas it was at the time, and the defendant well knew it was, in a very unfit state. At the trial no evidence was given of the defendant's knowledge, and the verdict being for the plaintiff, a motion was made for a new trial, on the ground that the scienter, having been alleged, ought to have been proved; but the court were unanimously of opinion, that the allegation of the scienter was wholly unnecessary and immaterial, and therefore need not be proved. The grounds for this decision are explained with great clearness by Lord Ellenborough in pronouncing his judgment. If," said his Lordship, "the whole averment respecting the defendant's knowledge of the unfitness of the wine for exportation were struck out, the declaration would still be sufficient to entitle the plaintiff to recover upon the breach of the warranty proved. For, if one man lull another into security as to the goodness of a commodity, by giving him a warranty of it, it is the same thing whether or not the seller knew it at the time to be unfit for sale; the warranty is the thing which deceives the buyer, who relies on it, and is thereby put off his guard. Then, if the warranty be the material averment, it is sufficient to prove that broken to establish the deceit." Mr. Justice Lawrence added, "I take the rule to be, that if the whole of an averment may be struck out without destroying the plaintiff's right of action, it is not necessary to prove it; but otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, although the averment be more particular than it need have been, the whole must be proved or the plaintiff cannot recover" (b).

§ 167. So, in tort for removing earth from the defendant's land, whereby the foundation of the plaintiff's house was injured, the allegation of bad intent in the defendant need not be proved, for the cause of action is perfect, independent of the intention (c). So, also, in trespass, for driving against the plaintiff's cart, an averment that he was in the cart is immaterial (d). In like manner, where a declaration, after alleging that the plaintiff was possessed

(b) 2 East, 451, 452. See also Jackson v. Allaway, 6 M. & Gr. 942; 7 Scott, N. R. 875, S. C.; Att.-Gen. v. Clerc, 12 M. & W. 640; Tempest v. Kilner, 2 Com. B. 300. (c) Panton v. Holland, 17 Johns. 92; Twiss v. Baldwin, 9 Conn. 291. (d) Howard v. Peete, 2 Chit. R. 315.

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of a pond, and the defendant was possessed of an adjoining close, used as a private road, averred that the defendant wrongfully cut in his close used as a private road a certain large sewer, and thereby diverted the water from the pond, the court held that the words marked in italics were clearly immaterial, and that the plaintiff might recover damages, though it appeared that the sewer was cut previously to the construction of the road. "What," said

Chief Justice Tindal, "has it to do with the wrongful act of the defendant, or the measure of damages which the plaintiff is entitled to claim, whether the defendant used his close as a road, an orchard, or a garden?" (e) So, in an action against the Marshal for an escape (ƒ), the declaration stated that a judgment was recovered in Easter Term, and that in Trinity Term in the same year there was an award of execution; and thereupon the defendant was committed. The original judgment and the commitment were proved, but there was no evidence of any judgment in scire facias. The court held that this last allegation being immaterial, because a year had not elapsed from the date of the original judgment (g), no proof was necessary to support it; and they considered that the word "thereupon" was introduced, not for the purpose of connecting the commitment with the judgment in scire facias, but simply with the view of marking the progress of the cause. In a similar action against the Marshal, the plea stated that the debtor returned into custody before action brought, and that thereupon the defendant, before and at the time of the commencement of the suit, kept and detained, and still doth keep and detain, him in his custody; to this plea the plaintiff replied de injuriâ, and at the trial tendered evidence of a second escape after the commencement of the action, and before plea pleaded. This evidence was rejected by the learned judge, on the ground that the allegation of a detainer after action brought was immaterial to the defence, and was consequently not put in issue by the replication: and the court above supported this ruling (h). So, where a girl ten years old, by

(e) Dukes v. Gostling, 1 Bing. N. C. 588, 593.

(ƒ) Bromfield v. Jones, 4 B. & C. 380.

(g) Semble, the scire facias need not have been alleged or proved, even if execution had not been taken out till after the year and day had expired: per Littledale, J., id. 285.

(h) Davis v. Chapman, 2 M. & Gr. 921. See Basan v. Arnold, 6 M. & W. 559;

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her prochein ami, sued a surgeon in case, and the declaration stated that she had employed him to cure her, and then claimed damages for a misfeasance, the court held that there was no material variance between the allegation and the proof, though the defendant had traversed the statement that the plaintiff had employed him, and it appeared that he had, in reality, been sent for by the mother, and paid by the father, of the child; for either the fact of the girl having allowed him to operate was evidence that she had employed him, and that he had accepted the employment, or, the substance of the issue being, that he was employed to cure his patient, it was immaterial by whom he was employed, and the statement that he was employed by the plaintiff might be struck out of the declaration and plea (i).

§ 168. Again, if a bill be accepted payable at a particular place, without stating it to be payable there only, it is no variance, in an action against the acceptor, to declare upon it as payable at that place, though such an acceptance is declared by the legislature to be, for all intents and purposes, a general acceptance (j); for a general acceptance, being an engagement to pay anywhere, must include, amongst others, the particular place mentioned in the declaration; and it does not lie in the defendant's mouth to say that the bill was not payable at that place, when he has himself referred the parties there for payment (). So, in an action on a promissory note, where the declaration stated that the defendant made it," his wn proper hand being thereunto subscribed," but it appeared that the note was, in fact, drawn by his son, with his authority; Lord Tenterden held that this was no variance, as the allegation respecting the defendant's handwriting might be rejected as surplusage (7).

Palmer v. Gooden, 8 M. & W. 890; 1 Dowl. N. S. 673, S. C.; Vowles v. Miller, 3 Taunt. 137. (i) Gladwell v. Steggall, 5 Bing. N. C. 733; 8 Scott, 60, S. C. (j) 1 & 2 Geo. 4, c. 78.

(*) Blake v. Beaumont, 4 M. & Gr. 7, 10. It will be seen that this case depends rather on the doctrine of estoppel, than on that of variance.

(1) Booth v. Grove, M. & M. 182; 3 C. & P. 335, S. C. This case is probably correct law, though, on one occasion, where the declaration contained similar words, with respect to an indorsement which turned out to have been made by procuration, Lord Ellenborough directed a nonsuit, Levy v. Wilson, 5 Esp. 179. In Helmsley v. Loader, 2 Camp. 450, the same learned judge, however, under precisely similar circumstances, would not allow the defendant to raise the objection,

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So, also, in an action by indorsee against the drawer or indorser of a bill for default of payment, an allegation of acceptance need not be proved (m), except in the case of a bill payable after sight. So, where the holder of a bill averred, as an excuse for not giving notice of dishonour to the drawer, that the latter had no funds in the acceptor's hands, and had sustained no damage from want of notice, this last negative averment was held to be immaterial, though the defendant had pleaded that he had sustained damage, because the acceptor had promised him to provide for the bill (n). In an action on a promissory note brought by the indorsee against the maker, the defendant pleaded that he delivered the note to the indorser to enable him to take up a former accommodation note, and that after the note declared on became due, he paid the amount to plaintiff. On a replication de injuriâ to this plea, the court held that the averment introductory to the payment of the last-mentioned note might be rejected as surplusage, and need not be proved. It amounted, in fact, to a mere unnecessary statement of the motive which induced the defendant to give the note. Mr. Justice Coleridge observed: "The distinction is between an averment, the whole of which can be got rid of without injury to the plea, and an averment of circumstances essential to the defence, which are stated with needless particularity. In the latter case, the whole averment must be proved as pleaded. In the former case, in civil or criminal pleadings, the whole may be considered as struck out, and therefore need not be proved" (0).

§ 169. The distinction here pointed out may be well illustrated by the case of Bristow v. Wright (p). That was an action on the case against a sheriff, for taking the tenant's goods in execution without satisfying the landlord for a year's rent; and the plaintiff

he having promised to pay, with a knowledge of all the facts; and his Lordship was inclined to think that, even independently of the promise, it was enough to show that the defendant's name was written by an authorised agent. Levy v. Wilson may therefore be considered as overruled.

(m) Tanner v. Bean, 4 B. & C. 312; 6 D. & R. 338, S. C.; overruling Jones v. Morgan, 2 Camp. 474. (n) Fitzgerald v. Williams, 6 Bing. N. C. 68.

(0) Shearm v. Burnard, 10 A. & E. 593, 596; 2 Per. & D. 565, S. C. (p) 2 Doug. 665; 1 Smith's Lead. Ca. 324, S. C.; explained and confirmed by Buller, J., in Peppin v. Solomons, 5 T. R. 497, 498; and by Lord Ellenborough in Williamson v. Allison, 2 East, 450. See also Savage v. Smith, 2 W. Bl. 1101; Hoar v. Mill, 4 M. & Sel. 470.