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FORMAL ALLEGATIONS NEED NOT BE PROVED.

The plaintiff, having obtained a verdict for injury by negligence in the care taken of a single cask, but not for any injury to the cargo by stowage, it was held that the defendants were not entitled to the costs of any part of the issue. The Court considered that, as proof of any portion of the complaint would sustain the action, the failure as to the rest affected only the amount of damages. So, in Delisser v. Towne (c), the declaration in case stated, that the defendant, without probable cause, had preferred an indictment against the plaintiff for perjury, alleged to have been committed by him as a witness in a cause at Nisi Prius. The indictment, which was set out in the declaration, contained ten assignments of perjury. The defendant pleaded not guilty. Evidence was given of want of probable cause on the last assignment, but on no other, and the plaintiff had a verdict. Upon these facts the Court held that the defendant was not entitled to his costs, with respect to the nine assignments, as to which the plaintiff had failed to establish a want of probable cause.

§ 178. Thirdly, besides the allegations which need not be proved as coming within either of the rules above mentioned, there are certain other averments which the law, for the sake of convenience, in general regards as formal. Thus, allegations of time, place, number, value, quality, and the like, unless descriptive of the identity of the subject of the claim or charge, or

(c) 1 Q. B. 333. In pronouncing judgment, Lord Denman observed: “Though the indictment contained assignments of perjury upon several parts of the plaintiff's examination upon the trial, yet it was but one charge: and the preferring that charge without probable cause constitutes but one cause of action. The plea of 'not guilty' denies that one cause of action, and amounts to an assertion that the defendant had probable cause for the whole of the indictment. That is one entire issue and, if there was no probable cause for any part of the charge, the plaintiff was entitled to a verdict. Whether there was or was not probable cause for other parts of the charge, would affect the damages, but could not affect the verdict, or show that the defendant had properly preferred the indictment, that is, with probable cause for every part of it." p. 343. On the subject of distributive issues, see also Williams v. Great Western Railway Co., 8 M. & W. 856; 1 Dowl. N. S. 16, S. C.; Amor v. Cuthbert, 1 Dowl. N. S. 160; Prudhomme v. Fraser, 2 A. & E. 645, doubted by Lord Abinger and Parke, B., in 5 M. & W. 489, 490, but quoted as sound law by Lord Denman in 1 Q. B. 344; Nicholson v. Dyson, 11 M. & W. 545; Daniel v. Barry, 4 Q. B. 59.

ALLEGATIONS OF TIME AND PLACE.

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otherwise rendered material by special circumstances, need not be proved strictly as alleged. A few examples will suffice to illustrate this subject; and first, as to averments of time and place in criminal proceedings. Every material fact stated in an indictment must be alleged to have occurred on a particular day, at a particular place (d); but these allegations need not in general be true; and it will be sufficient to prove that the occurrence happened on any day before the bill was found, and at any place within the jurisdiction of the court (e). Thus, where an indictment for misdemeanor contained several counts, in each of which a separate offence was laid on the same day, the prosecutor was allowed to give evidence of these offences, though really committed on different days (f). Indeed, the date specified in the indictment has been so far disregarded, that where a court had no jurisdiction to try a criminal, except for an offence committed after a certain day, the judges held that no objection could be taken to the indictment in arrest of judgment, for alleging that the act was done before that day, the jury having expressly found that this was not correct (g). So, also, in the case of a transitory felony, it is no objection, on the plea of not guilty, that it has been negatively proved that there is no such parish in the

(d) R. v. Holland, 5 T. R. 624, 625; R. v. Haynes, 4 M. & Sel. 214; R. v. Feargus O'Connor, 5 Q. B. 16. See 7 Geo. 4, c. 64, § 20.

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(e) See Arch. Crim. Pl. 37-41; 2 Russ. C. & M. 800-803. The rule, which requires a day to be specified, but does not require that day to be proved, appears to rest on much the same foundation as the argument used by Corporal Trim in telling his unfortunate story of the King of Bohemia. There was a certain King of Bohemia, but in what year of our Lord,"—"I would not give a halfpenny to know," said my uncle Toby. " Only, an' please your Honour, it makes a story look the better in the face." My uncle Toby's reply," Leave out the date entirely, Trim; a story passes very well without these niceties, unless one is pretty sure of 'em!" is founded on good sense. Either allege a date and prove it, or omit it altogether.

(ƒ) R. v. Levy, 2 Stark. R. 458, per Abbott, C. J.

(g) R. v. Treharne, 1 Moo. C. C. 298. In this case the Court claimed jurisdiction under 11 Geo. 4 & 1 Will. 4, c. 66, § 24, which provides that forgers and utterers may be tried in the county where they are apprehended or in custody. That Act came into operation on the 20th July. The prisoner was tried where he was apprehended. The act of forgery complained of was laid in the indictment as having been committed on the 2nd July, but the jury found that it had been committed after the 20th.

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county, as that in which the offence is stated to have been committed (e).

§ 179. There are certain exceptions, however, to this rule, which it is important to notice. First, in indictments for those offences which the law regards as bearing a local character, the proof respecting the place must strictly correspond with the allegation, as any substantial variance will entitle the prisoner to his acquittal. The distinction between local and transitory offences is not very clearly drawn, but in the former category may be safely included, among others, burglary (ƒ), but not highway robbery (g); housebreaking (h); stealing in a dwelling-house (i); sacrilege (j); riotously demolishing churches, houses, machinery, &c. (k); maliciously firing a dwelling-house, perhaps an out-house, but not a stack (1); forcible entry (m); poaching (n); nuisances to highways (o); malicious injuries to sea-banks, mill-dams, or other local property. In most of these cases it is sufficient to allege and prove the parish, township, or other local district, less than a county, in which the offence was committed (p); but, in some, a more accurate description is necessary. Thus, an indictment for not repairing a highway must specify the situation of the road within the parish, and any material variance between the description and the evidence will be fatal (g). So, on an indictment for night poaching, it has been held, by a majority of the judges, that the locus in quo must be described either by name, ownership, occupation, or abuttals, and that it is not sufficient to allege that the prisoner was found "in a certain close in the parish of A." (r) If the defendant be charged with taking or

(e) R. v. Woodward, 1 Moo. C. C. 323; R. v. Dowling, Ry. & M. 433. (f) 1 Russ. C. & M. 826; R. v. St. John, 9 C. & P. 40.

(g) R. v. Dowling, Ry. & M. 433.

(h) R. v. Bullock, cited in n. to 1 Moo. C. C. 324.
(i) R. v. Napper, 1 Moo. C. C. 44.
(k) R. v. Richards, 1 M. & Rob. 177.
(m) 2 Leon, 186.

(j) Arch. Cr. Pl. 237.

(1) R. v. Woodward, 1 Moo. C. C. 323.

(n) R. v. Ridley, R. & R. 515. (0) R. v. Steventon, 1 C. & Kir. 55. (p) See R. v. Napper, 1 Moo. C.C. 44. (2) R. v. Great Canfield, 6 Esp. 136; R. v. Upton-on-Severn, 6 C. & P. 133; R. v. Steventon, 1 C. & Kir. 55. See R. v. March. Dow. of Downshire, 4 A. & E. 232. If a carriage-way is described as a bridle-way, the variance is fatal, R. v. St. Weonard, 6 C. & P. 582. See also R. v. Lyon, Ry. & M. 151.

(r) R. v. Ridley, R. & R. 515, under the repealed act of 57 Geo. 3, c. 90, § 1;

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destroying fish in water adjoining a dwelling-house, it is sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment, or in any such local district adjoining the water (s); and if the charge be that of stealing oysters, or oyster brood, the bed, laying, or fishery may be described by name or otherwise, without stating it to be in any particular parish, township, or vill (t).

§ 180. It would be extremely difficult to advance any sensible argument in favour of this distinction which the law recognises between local and transitory offences. On an indictment, indeed, against a parish for not repairing a highway, it may be convenient to allege, as it will be necessary to prove, that the spot out of repair is within the parish charged; and in those very few cases, where the statute upon which an indictment is framed gives the penalty to the poor of the parish in which the offence is committed, a similar allegation may be properly inserted (u); but why a burglar should be entitled to more accurate information respecting the house he is charged with having entered, than the highway robber can claim as to the spot where his offence is stated to have been committed, it is impossible to say; either full information should be given in all cases or in none. In actions of ejectment it is now sufficient, at least on motion in arrest of judgment, that the declaration should state the county in which the lands lay without further local description (v); and if a similar latitude of pleading were allowed in all criminal cases, no real hardship would be imposed upon prisoners, while the substantial ends of justice would be greatly promoted.

§ 181. Another exception to the rule, which renders it unnecessary

R. v. Crick, 5 C. & P. 508, per Vaughan, B., under 9 Geo. 4, c. 69, § 9. In R. v. Owen, 1 Moo. C. C. 118, where the close was described by name and occupation, but the name proved was different from that alleged, the judges held that the variance was fatal. See R. v. Andrews, 2 M. & Rob. 37.

(s) 7 & 8 Geo. 4, c. 29, § 34.

(t) 7 & 8 Geo. 4, c. 29, § 36.

(u) See 4 & 5 Will. 4, c. 76, §§ 98, 99, as to fines imposed for disobeying the orders of the Poor Law Commissioners.

(v) Doe v. Gunning, 7 A. & E. 240.

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ALLEGATIONS OF NUMBER AND VALUE.

to prove strictly the allegations of time and place, is recognised in those cases in which records, deeds, bills of exchange, or other documents, are recited in the indictment. In such cases, the dates and places alleged, being considered descriptive of the written instruments referred to, must be proved correctly; and in felonies, almost every variance between the indictment and the evidence in these respects, will be pronounced fatal. In misdemeanors, indeed, these variances may in general be amended, but the judges, as we have seen, have hitherto shown no great readiness to exercise the powers, which the act of 9 Geo. 4, c. 15, has given them (v).

§ 182. In civil actions averments of time and place are usually immaterial (w); but here, as in criminal proceedings, they should be proved as laid, if they be alleged by way of essential description (x). However, since discrepancies on this head would now in almost all cases be amended, it is unnecessary to discuss the matter further in the present work.

§ 183. Allegations of number and value are also in general immaterial both in actions and indictments. Thus, proof of cutting the precise number of trees alleged to have been cut in trespass; or of the exact amount of rent alleged to be in arrear in replevin; or of the precise value of the goods taken in trespass or trover, is not necessary (y). So, proof of a tender of a larger sum will support a plea of tender of a smaller sum, though the plaintiff, by his replication, has denied the tender in manner and form as alleged (z). If, however, to such a plea the plaintiff reply a prior or subsequent demand and refusal, the sum stated in the plea becomes material, and the plaintiff must allege and prove a demand of that precise sum (a), unless, indeed, the replication

(v) See ante, § 162.

(w) See Ring v. Roxborough, 2 Tyrwh. 468; 2 C. & J. 418, S. C.; Beesley v. Dolley, 6 Bing. N. C. 37; Arnold v. Arnold, 3 id. 81.

(x) Steph. Pl. 329, 330; Nightingale v. Wilcoxson, 10 B. & C. 215; Edge v. Strafford, 1 C. & J. 391; Fox v. Keeling, 2 A. & E. 670.

(y) Co. Lit. 282 a; Steph. Pl. 336; Hutchins v. Adams, 3 Greenl. 174.

(2) Dean v. James, 4 B. & Ad. 546; 1 N. & M. 393, S. C.

(a) Spybey v. Hide, 1 Camp. 181, per Lord Ellenborough; Rivers v. Griffiths,

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