it would not have served his turn, for that had been clear [73 a] out of the issue, both in matter and form. Yet it was granted that if he had declared in ejectione firme thus, it would have been against him clearly, for there he demands and recovers the term, and therefore must take his title truly. Note, that in this case the jury might have found directly against the plaintiff non dimisit modo et forma, and could not safely have found a general verdict for the plaintiff, so that the judgment of law upon the verdict is in manner against the verdict. (1) (1) The authority of this case seems to be shaken by the rule adopted in the case of Bristow v. Wright, Doug. 640, which has since been considered as a leading case on the subject of variances. In that case the declaration stated that certain tenements were held of the plaintiff under a demise, at a certain yearly rent payable by four even and equal quarterly payments, but upon the trial it appeared that there was no stipulation about any time or times of payment, and this was held to be a fatal variance. Lord Mansfield, in giving judgment, says, 'It certainly was not necessary to allege that part of the lease that relates to the time of payment, in order to maintain the action. But since it has been alleged, it is necessary to prove it. This distinction is between what may be rejected as surplusage (which might have been struck out on motion) and what cannot. Where the declaration contains impertinent matter foreign to the cause, and which the master, on reference to him would strike out, that will be rejected by the court, and need not be proved. But if the very ground of the action is misstated, as where you undertake to recite that part of the deed on which the action is founded, and it is misrecited, that will be fatal. In the present instance the plaintiff undertakes to state the lease, and states it falsely.' So in Gwinnet v. Phillips, 3. T. R. 643, Ld. Kenyon C. J. says, 'There is no doubt but that if the plaintiff profess to set out his title he must set it out correctly.' 'If a plaintiff allege anything which forms a constituent part of his title, he must set it out correctly.' The same doctrine is recognized in 5 T. R. 496, Peppin v. Solomons. Dyer 365, Sir Francis Leake's case. 2 Saund. 206. a. n. (22) 1 Saund. 346. n. (2). So in Williamson v. Allison, 2 East 452, the rule laid down by Lawrence J. is, 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, though the averment be more particular than it need to have been, the whole must be proved or the plaintiff cannot recover. And in a plea by a commoner, justifying under a right of common to an avowry damage feasant, the plaintiff must set out his title to the common specially, and it is not enough to allege generally that he is possessed of certain land and by reason threreof, has a right of common, &c. 4 T. R. 718, Grimstead v. Marlow. 1 Saund. 346. n. (2). These principles seem to be directly applicable to the case in the text. The defendant, in his plea of justification to the avowry, undertakes, as he was bound to do, to set forth his title to the common specially. He must therefore set it forth correctly. The jury, by their verdict, negative the title set forth in the plea, or, disregarding the issue joined, find a different title from that which was [73 b] put in issue by the pleadings. Now the plaintiff's allegations as to his lease are not surplusage; they cannot be struck out without destroying his title; they are not impertinent, and therefore, according to the rule laid down by Lawrence, J. abovementioned, the whole must be proved. The plaintiff must recover, according to Ld. Mansfield, secundum allegata et probata. He failed to prove the title alleged, and, whatever else he might have proved, he was not, upon principles now recognized and settled, entitled to recover. In New York the doctrine of the case of Bristow v. Wright is recognized. Therefore where an action was brought upon a note purporting value received,' and the plaintiff, instead of stating generally that it was given for value received, set forth specially in what the value received consisted, it was held that he was bound to prove the particular value according to the averment, and that the general acknowledgment of value in the note was not sufficient to support the declaration. 7 Johns. 321, Jerome v. Whitney. See also 8 Johns. 253, Crawford v. Morrill. 7 Johns. 468, Pease v. Morgan. 10 Johns. 418, Saxton v. Johnson. 1 Johns. 96, Snell v. Moses. Ib. 129, Perry v. Aaron. 18 Johns. 451, Robertson v. Lynch. 8 Johns. 84, Smith v. Brush. 10 Johns. 140, Lawrence v. Knies. 18 See also, as to variance, 7 Mass. 325, Baylies v. Fettyplace. The rule established in the case of Bristow v. Wright, is said to be confined to cases of written contracts and records, which are entire in their nature, and therefore must be proved as laid. In the case of Wilson v. Codman, 3 Cranch 209, Marshall C. J. says, no reason is perceived for requiring the proof of a perfectly immaterial averment, unless that averment be descriptive of a written instrument, which by being untruly described, may, by possibility, mislead the opposite party. Where, then, the averment in the declaration is of a fact dekors the written contract, which fact is in itself immaterial, the party making the averment is not bound to prove it;' and accordingly in that case it was held that an averment in the declaration that the assignment of a promissory note was for value received, was an immaterial averment and need not be proved. The court say that this is an averment of a fact which is perfectly immaterial, and which forms no part of the written instrument, nor is it averred to be a part of it. It is an extrinsick fact showing how the right of action was acquired, but which contributes nothing towards giving that right of action. Those averments of a declaration which plaintiffs have been required to prove, are all descriptive of records or of written contracts; not of facts, at the same time extrinsick and immaterial. See also 7 Mass. 66, Cunningham v. Kimball. Also as to records, ante p. 52, Foster v. Jackson, n. (3.) A distinction is made between averments descriptive of the contract itself and averments of extrinsick facts. If therefore a declaration on a bill of exchange describe the bill as drawn by Crouch and the bill produced be drawn by Couch the variance is fatal. 3 Bos. & Pul. 559, Whitwell v. Bennett. So a bill described as drawn on John K. in the declaration, is not supported by a bill drawn on Abraham K. though the name, in the declaration is laid under a videlicet. 4 Taunt. 810, Hutchinson v. Piper. But where a lease was stated in the declaration to be made by the plaintiff on the one part and T. R. on the other part, but turned out, on evidence, to have been made by the plaintiff and his wife on the one part and T. R. on the other, it was held that this was no variance, because the lease was described according to its legal effect. 1 Brod. & Bing. 443, Arnold v. Revoult. See also 4 M. & S. 474, Hamborough v. Wilkie. So where, in covenant the plaintiff declared that the defendant demised to him a wharf and storehouses, and in the deed produced the word was storehouse, it was held to be a fatal 1 4 In describing an instrument, the words, to the tenor following' or 'as follows,' or in the words and figures following,' bind to an exact recital. Doug. 97, Boyce v. Whitaker, 2 Salk. 660, Reg. v. Drake. And if the condition of a bond be set forth on oyer, a variance from the tenor will be fatal. 5 Taunt. 707, Waugh v. Bussell. When an instrument is described merely by its substance and effect, it is sufficient to prove it by one which corresponds in legal effect. 5 Taunt. 707. 2 Salk. 659. 4 T. R. 616, Ankerstein v. Clerke. 3 J. B. Moore 214, Bonfellow v. Steward. 3 Bro. & Bin. 186, Cockell v. Gray. 1 Bing. 6, Glover v. Coles. If the substance and effect of an instrument be alleged with more particularity than in the instrument itself, the variance will not be material, if the particulars be true in fact. Thus a writ directed generally to the sheriff of a county, may be described, in pleading, as directed to the individual by name who was in fact sheriff when the writ issued. 2 Camp. 525, Batchellor v. Salmon. And in such case also, insensible and superfluous words in the description may be rejected as surplusage. 1 T. R. 235, King v. Pippet. But if the instrument produced in evidence, be, in its legal effect, different from the description, the variance will, in general, be fatal. 2 Camp. 270, Scandover v. Warne. 6 Co. 15, Treport's case. 2 Saund. 97. b. n. (2.) If an instrument is not described by its tenor, or by its effect or substance, but referred to by its date, or names, or sums, or days of payment, &c. a variance from the precise allegations in these particulars will be fatal. 8 Taunt. 737, Wells v. Girling. Post 249, Thorp v. Taylor. For a full and clear view of the law and decisions on the subject of variance, see Starkie on Evidence, vol. 3, p. 1526 et seq. Am. edition. See also ante p. 52, Foster v. Jackon. n. (3.) [73 c] [73 d] CURTICE'S CASE. A melius inquirendum, after ignoramus found on a former writ, ought to be at large. TREDWAYE'S CASE. A popish recusant forfeits not the land itself, but only the profits of it. [74] Use in abeyance, whether it shall carry the remainder BARNES' CASE. Whether an use in abeyance shall transfer the remainder in abeyance, quære. THIS was the sole question in the Court of Wards, whether a use, rising by covenants, to the right heirs of into abeyance. a daughter yet alive, should so far transfer the remainder in abeyance that it should not be as a reversion still in the covenantor, whereof livery should be sued after his death; because there is no person in being (which is the word of the statute of uses) in whom the land may vest. Cheq. ry how far extended. KNIGHTLEY'S CASE. General words may be restrained by special matter. RICHARD KNIGHTLEY was to sue a general livery as heir to his father Edward, and an especial livery as heir to his mother the Lady Bevil, and sued a special livery in these words, Concedimus Richardo Knightley filio et hæredi domina Mar. Bevil, that he without any livery of his inheritance, or any part thereof may enter into all and singular A special live- the manors, &c. quæ fuerunt dictæ domina Mar. Bevil. et de quibus eadem Maria aut aliquis antecessorum præd. R. Knightley, cujus hæres ipse est, fuit qualitercunque seisitus diebus quibus obierunt separatim, vel de quibus aliqua persona seisita fuit ad usum dicta Maria vel aliquorum antecessorum dicti Richardi Knightley. Tanfield and I held clearly, that upon the consideration of the connexion and coupling of these words, this special livery could be extended no further than to the inheritance of dame Mary Bevil. ROY vs. BISHOP OF NORWICH. SPARK VS. PURNELL. ROY vs. BISHOP OF NORWICH. The king cannot, by non obstante, enable a person disabled by act of parliament or common law. 189 [75] SPARK VS. PURNELL. The words of a will may be transposed by construction to effectuate the manifest intent of the testator. The word heir, in a will, may be taken in its vulgar, and not in its technical meaning. A devise that A. shall be the heir of the testator's land, will give to the devisee such an estate in the land as the testator had, whether freehold, tail or fee. Rot. 692. de tences trans Winch. Ent. Br. Devise 38, JOHN SPARK brought an ejectione firmæ against Thomas Hill. 11 Jac. Purnell for lands in Reyhurst. Upon not guilty, the case Canc. Waller. Ejectione One John Faireman vise. Senby special verdict was found thus. was seised of the lands in question, and of twenty acres posed to serve of land more in fee, and had issue three sons, James, Wil- meaning liam, and Anthony, and by his will gave to William his 407. Mo. 864. second son ten acres of the twenty, and to Anthony the other ten acres, and then gave to James his eldest son the lands in question, and willed that when James should die without heirs of his body, that William should be his heir, and Anthony should have his part; and if either the said William or Anthony should die, that then one of them should be the other's heir, and died. Then James died without issue; then died William, leaving issue Robert, under whom the defendant claims, upon whom Anthony entered and made the lease, upon whom the defendant reentered. And it was adjudged that the plaintiff should be barred; for the last clause, that William and Anthony should be one another's heirs, was to be applied to the first clause of the division of twenty acres between them, (though the gift to James, and so to William for the lands in question came between them,) and could not be applied to that part, because that last part was reciprocal for lands, either of them might take from other, which fitted well the twenty acres, because William might take from Anthony by survivor, as well as Anthony from William, 7 |