Practice Act, and should be liberally construed: Regan v. O'Reilly, 32 Cal. 11. And a disregard of a variance may be held equivalent to an amendment at the trial: Miller v. Hull, 5 Cal. 245; Coleman v. Playstead, 36 Barb. 26.

160. The complaint must agree with the summons in the description of the parties: Blanchard v. Strait, 8 How. Pr. 83; Tuttle v. Smith, 6 Abb. Pr. 336; Allen v. Allen, 14 How. Pr. 248. It was held in New Hampshire that the description of the defendants as partners under a particular name or firm in the writ, is not an averment that they promised by that name. Proof of the promise by another name is therefore not a variance: Brown v. Jewett, 18 N. H. 230.

161. It was held in New York, that a complaint setting forth a conversion by the defendant, of money deposited with him, and demanding the amount of such money, is not a variance from a summons for a money demand on contract: Goff v. Edgerton, 18 Abb. Pr. 381. So it has been held, by the Supreme Court of the United States, that a variance between pleadings and findings will not be regarded where there is no allegation that the findings were unwarranted by the proofs: Railroad Comp. v. Lindsay, 4 Wall. U. S. 650.

PLEADINGS AND PROOF.

162. Allegata and probata must correspond, and plaintiff must in general prove his case as alleged in the complaint: Gould's Pl. 160; Stout v. Coffin, 28 Cal. 65; Hathaway v. Ryan, 35 Id. 188; Tomlinson v. Monroe, 41 Id. 94. But a variance between the pleadings and proof, if it be not a material variance, that is one which has actually misled the adverse party to his prejudice, shall not be regarded: Code, sec. 475; Regan v. O'Reilly, 32 Cal. 11; Plate v. Vega, 31 Id. 383; Lettmon v. Ritz, 3 Sandf. 734.

163. Where the allegations in a pleading to which the proof is directed remain unproved in its entire scope and meaning, it is not a case of variance to be disregarded, and an amendment will not be allowed unless it clearly appear to be in furtherance of justice to allow it: Egert v. Wicker, 10 How. Pr. 193; Catlin v. Hanson, 1 Duer, 309. If evidence is offered by the plaintiff at variance with the allegations of the complaint, and the counsel for the defense does

not object to it at the time, nor move to strike it out upon the ground of variance, this error is waived: Boyce v. California Stage Co., 25 Cal. 471; Bell v. Knowles, 45 Id. 193.

164. In an action against a common carrier for not complying with a contract to carry or deliver a draft, the complaint alleged that it was signed, "John Q. Jackson;" the proof showed that it was signed, "John Q. Jackson, Agent." Held, that the variance was immaterial: Zeigler v. Wells, 28 Cal. 263.

165. Consideration. It is not a variance, if, upon the consideration stated in the count, it is proved that the defendant undertook to do an act in addition to that, the non-performance of which is stated in the count: Morrill v. Richey, 18 N. H. 295. A written agreement in this form: "Borrowed and received of A., two hundred and sixty dollars, which I promise to pay on demand, with interest;" imports a consideration on its face; and if the defendant in an action upon it, has introduced evidence tending to show that it was given without consideration, the plaintiff may prove that it was given in payment of a debt of a third person, although there is no averment to that effect in the declaration: Plate v. Vega, 31 Cal. 383; Cochran v. Duty, 8 Allen (Mass.) 324. A complaint alleged that the consideration of a contract was five thousand five hundred dollars; the proof was that the consideration was a sight draft, which was paid: Held, no variance: Nash v. Towne, 5 Wall. U. S. 689.

166. Covenant.-Plaintiffs will not be allowed to recover upon an implied covenant in a lease, totally different from the express covenant declared on, when objection is specifically made, though not taken until the evidence is all in: Merritt v. Closson, 36 Vt. 172.

167. Dates. So, when dates are in question, unless they be the gist of the action, a variance will be immaterial: Zorkowski v. Zorkowski, 3 Robertson, 613; United States v. Le Baron, 4 Wall. U. S. 642. When a contract is alleged to have been made on a certain day, it is no variance to offer in evidence a written contract which took effect on a different day: Id. Time stated in a pleading is often not material, and may be departed from in evidence: Andrews v. Chadbourne, 19 Barb. 147; but compare Walden v. Crafts, 2 Abb. Pr. 301; see, also, People ex rel. Crane v. Ryder, 2 Kern. 433. An averment in the plaintiff's statement, that notice of non-payment was given at a wrong date, is but a defect in form, and the subject of amendment. It is not necessary to aver the precise date when the notice was given. And the averment in the statement not being inconsistent with the fact that another notice was given at the proper time, if the parties go to trial on the merits, on the pleas of payment and payment with leave, etc., judgment will not be arrested on the ground of the insufficiency of the statement of notice of non-payment: Loose v. Loose, 36 Penn. 538.

168. Deceit.--A declaration in action of tort, which alleges that the plaintiff, through his agent, procured the defendants to furnish and deliver to him a certain article, and that they negligently and carelessly furnished a different article, and that he sustained an injury by the use of the article furnished, believing it to be that which he ordered, is not sustained by proof

that the plaintiff bought the article of a third person, who obtained it of the defendants: Davidson v. Nichols, 8 Allen (Mass.) 75; see Porter v. Hermann, 8 Cal. 619.

169. Description.-So in a case where the proof, among other things, showed such lands to extend a certain distance from the northeasterly instead of the northwesterly corner of the tract, as alleged in the complaint. The judgment followed the description in the complaint. Defendant appeals: Held, that the variance in the description of the premises did not prejudice appellant; that the question was one of identity, and the fact that the corner of the small tract was called the northeasterly instead of the northwesterly corner was itself insufficient to defeat the action, if the other and more definite marks of description sufficiently indicated and identified the premises: Paul v. Silver, 16 Cal. 75; Calderwood v. Brooks, 28 Id. 151.

170. Joint Liability.—Although the proof may show a joint liability of the defendant with another, and thus may constitute a variance, yet if the objection is not taken in the mode pointed out by the Code, it is one which the defendants shall be deemed to have waived: Lee v. Wilkes, 27 How. Pr. 336. An action against two or more for a joint trespass cannot be sustained by evidence of acts committed by one of them: Davis v. Cassell, 50 Maine, 294.

171. Nuisance.-A declaration charging that the defendant dug, opened and made, is sustained by proof that he formed it partially by excavation and partially by raising walls: Robbins v. Chicago City, 4 Wallace, U. S. 657.

172. Promise.-If the declaration alleges a single promise for the performance of two different things, founded upon an entire consideration, and the evidence shows two promises, at different times, upon distinct considerations, that is a fatal variance: Hart v. Chesley, 18 N. H. 373.

173. Promissory Note.--It is held in Massachusetts, that a declaration upon an agreement to discharge the plaintiff from all liabilities, on account of certain purchases, as one of a firm recently dissolved, which alleges that a certain note was due from the firm at the time when the agreement was made, is not sustained by proof that such a note was afterwards given for a liability of the firm; but an amendment would be allowed on terms: Nichols v. Prince, 8 Allen (Mass.) 404.

174. Relief.—The complaint should agree with the summons as to the amount claimed: Johnson v. Paul, 14 How. Pr. 454. A departure of the complaint from the summons, in respect to the form of relief, is not grounds for reversing the judgment on appeal. If necessary to sustain the judgment, the summons may be amended on appeal from the judgment, so as to conform to the fact proved: Willet v. Stewart, 43 Barb. 98. But, in most states, it seems an appearance waives all errors of service or form of summons.

175. Statement of Cause of Action.-The complaint must agree with the summons in the statement of the cause of action: Ridder v. Whitlock, 12 How. Pr. 208; Boington v. Lapham, 14 Id. 360; Shafer v. Humphrey, 15 How. Pr. 564; Campbell v. Wright, 21 Id. 13. But if the complaint set forth a substantial cause of action, and the defect be one that was amendable, it is cured by verdict: Robinson v. English, 34 Penn. 324; Garland v. Davis, 4 How. U. S. 131. If the cause of action or defense be substantially proved, the failure to prove certain allegations precisely as laid is an immaterial variance which will be totally disregarded: Union India Rubber Co. v. Tomlinson, 1 Smith Com. Pl. R. 364; Lettman v. Ritz, 3 Sandf. 784.

CHAPTER II.

FORMAL PARTS OF PLEADINGS.

1. The formal parts of pleadings consist of the caption, commencement, prayer, verification, and subscription. The caption consists of: 1. The name of the State and county in which the action is brought; 2. The name of the court, and, 3. The names of the parties, plaintiff and defendant: 1 Chitt. Pl. 261, 527, 528; 1 Arch. 72, 168; Steph. Pl. 440; Topping v. Fuge, 1 Marsh. 341. In the forms throughout this work, the caption will be indicated by the word "Title," which will be understood to include both the venue of the action and the names of the parties.

2. The first subdivision of the complaint is an essential part thereof, and constitutes the title of the action. This embraces the name of the State and county or venue of the action, the name of the court in which the action is to be tried, and the names of the parties to the action: See Cal. Code, sec. 426; 4 Comst. 253. An omission to state either of these is an irregularity: 1 Van Santv. 203, which may cause the complaint to be set aside or action dismissed on motion: Williams v. Wilkinson, 1 Code R. 20.

The California Code provides:

SEC. 426. The complaint must contain:

1. The title of the action, the name of the court and county in which the action is brought, and the names of the parties to the action;

2. A statement of the facts constituting the cause of action, in ordinary and concise language:

3. A demand of the relief which the plaintiff claims. If the recovery of money or damages be demanded, the amount thereof must be stated.

3. County.-Naming the county in the title of the cause, as above, is a sufficient designation of the county in which the plaintiff desires the trial to be had: 1 Chitt. Pl. 266; Swans. Pl. 141; Williams Pl. 97; Tidds. Pr. 434; Steph. Pl. 280; Tappan v. Powers, 2 Hall, 277; Slate v. Post, 9 Johns. 81; Clapp v. Gelman, 2 Blackf. 45; Davison v. Powell, 13 How. Pr. 287; McKenna v. Fisk, 1 How. U. S. 211; Loehr v. Latham, 15 Cal. 418.

4. Court.-Every complaint shall be entitled in the proper court: Cal. Code, sec. 426; see Codes of Oregon, Nevada, and Arizona, 1 Chitt. 263; Tidd's Pr. 43; 1 Van Santv. 202; Kippling v. Watts, Leg. Obs. 86. If a suit be brought in a local court, the full title of the court should be given: e. g., "The City Court of Brooklyn." But where the summons and complaint are served together, its omission from the complaint is a technical irregularity which cannot injure the defendant: See Van Namee v. Peoble, 9 How. Pr. 198; cited in Van Benthuysen v. Stevens, 14 Id. 70. But if neither the summons nor complaint names any court, no cognizance of the action need be taken: Ward v. Stringham, 1 Code R. 118. The above authorities have special reference to the New York practice, which in service of summons and commencement of actions differs from our own. It is nevertheless authority upon the general propositions.

5. Name. The law knows only one christian name, and all intervening initials are no part of the name: People v. Cook, 14 Barb. 261. That the law recognizes but one christian name was held in the case of Garwood v. Hastings, Cal. Sup. Ct. July T., 1869. It seems that the word "Junior" is no part of a name: People v. Cook, 14 Barb. 261. Nor the word "Senior." These are mere unnecessary additions, and should not be inserted in the complaint. Yet we do not see why the terms "Junior" or "Senior" may not be properly used in a complaint, for the purpose of more clearly identifying the person.

6. Name, Mistake in.-Though the names of the parties must be correctly stated, yet a mistake in the name even of the plaintiff is not fatal, but may be corrected at any time: Barnes v. Perine, 9 Barb. 202; Bk. of Havana v. Magee, 20 N. Y. 356. The objection to a misnomer may be raised at any time: Elliot v. Ilart, 7 How. Pr. 25; cited in Dole v. Manley, 11 How. Pr. 138; Farnham v. Hildreth, 32 Barb. 277.

7. Parties.-The caption shall contain the names of all the parties, plaintiff and defendant: Cal. Code, sec. 426; N. Y. Code, sec. 142; Oregon Code, sec. 65; Nevada, sec. 39; Arizona, Id. The rule is that the names of the parties must be fully set forth and be properly designated, the complaining party as plaintiff, and the adverse party as defendant: Cal. Code, sec. 308; N. Y. Code, sec. 70; and see Codes of Oregon, Idaho, Nevada, Arizona, etc.

8. Parties Joined.-Properly the names of all the parties plaintiff and defendant should be set forth in the title. If, however, some are named in the title, and all are correctly named in the body of the complaint, it will be sufficient: Hill v. Thacter, 2 Code, R. 3; 3 How. Pr. 407. But being once stated, it is sufficient afterwards to designate them as "the plaintiff" and