Ch. I. Circum stances. Grim on the 23d; and the plaintiff was nonsuited on account of this variance. So in a plea of Variance in set-off to a bond, where the defendant is required by the statute to set out in his plea the exact sum due to the plaintiff; if he state a less wood v. sum to be due than actually is, the sum so stated may be traversed, and the defendant 460. will fail on his plea. Barrit, 6 T. Rep. In the above cases the days and sums were so material, that no form of pleading could have helped the party; but where the day or sum is not material to the merits of the cause, the plaintiff may, by stating it under a videlicet (as observed above) escape the danger of a variance, which might otherwise be fatal. Thus, where a Declaration on a Durston V. Tuthan, warranty of sheep stated, that in consideration cor. Buller the plaintiff would buy of the defendant 45 at N. P. cited 3 sheep for 54. 11s. 6d. the defendant pro- T.Rep.67 mised they were sound; and it appeared in evidence, that the price was 547. 128. 6 d.; this not being laid under a videlicet, the plaintiff was nonsuited; but had the Declaration stated the purchase to have been for a large suin of money, to wit, 54 l. 11 s. 6d. the variance would have been immaterial. Contracts should in all cases be truly set out; 1 T. Rep. if the contract be different from the Declaration 240. in any part, the whole foundation of the action fails; because the contract is entire. So criffin v. where a right or custom is pleaded, it should be stated with all exceptions and modifications Cowp. 62. to which it is liable; otherwise the pleading ford, stances. v. Hutch ins, Cowp. 807. Ibid. Part II. will not be supported by the evidence. If a Variance in custom be stated as that of a particular place, Circum- evidence will not be received of the like custom prevailing in a place adjoining. Thus Furneaux the custom of tithing in the parish of A. will not be evidence of the custom of tithing in the parish of B. if the custom of that parish only be pleaded. But had it been laid as the custom of a larger district, including both A. and B. it would have been evidence in support of the issue. In like manner the custom of one Chapter of manor will not be evidence of the custom of another adjoining, unless in cases of some Duke of general law or quality, of which description Somerset is the general rule of most manors in the 1Stra. 654. northern counties bordering on Scotland, Dean and Ely v. v. France, and therefore called Border Law, that the tenant shall be admitted, and pay a fine on the death of every new lord. In cases where the law gives a general form of Declaration, as in trover ejectment, &c. the plaintiff has only to prove his title to recover, and by a fiction of the law, that title is considered as proving the case stated on the Record, and the Jury are directed to find the facts so stated. Actions may be again considered as they are local or transitory. Local actions must, as the term implies, be laid in the county where the cause of action arises. The county is in this case a material circumstance in the cause, and unless the plaintiff prove it as laid in the Declaration, this variance is fatal to his action. But Ch. I. Variance in Place. But in those actions which are transitory, the plaintiff has the privilege of electing any county he pleases, and the place laid in the Declaration is merely formal, and need not agree with the proof. Thus where in an action for run- Drewry v. ning down the plaintiff's boat, the declaration Twiss, 4 stated the injury to have been done near Half- 558. Way Reach, in the River Thames; and it was proved to have happened in Half-Way Reach; the proof was held to support the Declaration. So where an action of assumpsit was brought, Frith v. Gray,ibid. on an agreement to procure the plaintiff a 561, note, booth at a horse-race, and the Declaration stated that there was a race upon Barnet Common, in the County of Middleser; and it appeared in evidence that the whole of Barnet Common was in Ilertfordshire; this was also held to be no variance. In these transitory actions, however, the defendant may change the venue by motion to the Court, founded on an affidavit that the cause of action arose wholly in another, county; and the plaintiff cannot bring it back to the county where it was originally laid, without undertaking to give material evidence in that county. This undertaking makes the action Santler v. in some degree local, and unless the plain- Blac.1031. tiff comply with the condition, he will be nonsuited on the trial. The defendant therefore should, in all cases where the plaintiff has so undertaken, be prepared to produce the Rule at the trial, in order to bind the plaintiff to his engagement. Heard, 2 Part II. in Place. I Sid. 442 It was formerly held, that on an undertaking Variance of this nature, the plaintiff could not give any evidence which arose in another county, but that all his evidence must arise in the county wherein Salk. 669. the venue was laid; but it is now deemed sufficient if he give any one material piece of 2 T. Rep. evidence arising in that county; and even in actions in their nature local, if the different facts which constitute the right of action arise in different counties, the plaintiff has his election in which to lay his cause. 241. Watkins, v. Towers, 275. A Deed inrolled in Middlesex, or the pro2 T. Rep. duction of a Rule for payment of money into Court in the action, though obtained after the Rule to change the venue was discharged, is a sufficient compliance with the undertaking to give material evidence in that county. Gerard v. 1 H. Blac. So it has been said that proof of the cause Roebeck, of action arising in a foreign country, is suffi280. cient, but the bare circumstance of the witnesses residing in the county where the venue Santler v. is laid, will not alone satisfy the undertaking'. Heard ut sup. Another method by which the defendant may confine the generality of the plaintiff's statement, and consequently narrow his proof, is by obtaining a Judge's Order for the particulars of the plaintiff's demand. This is granted almost as of course in most actions founded on. contract, and when a bill of particulars is delivered under the Order, the plaintiff will not Wade v be permitted to give evidence at the trial of Esp.Cas.7. any demand not contained therein. Thus if, in a bill of particulars so delivered, the plain v. Beasley, 4 $ tiff state his cause of action to be on a Promise Ch. I Orders for Particulars of Demand. v. Hop Bof. & P. sory Note only, and it appear that the note is void for want of a stamp, the plaintiff cannot go into evidence of the consideration whereon it is founded, though the Declaration contain counts on such consideration. Again, where Holland the Declaration contained counts for goods kins, 2 sold and delivered, and for money had and received, and the plaintiff delivered a particular merely for horses sold to the defendant; the Court held that he was precluded from going on his count for money had and received, and proving that the defendant had sold horses on his behalf to third persons, and received the money for them. 243. Iffue, As, the rules of pleading allow, in some cases, General a general form of Declaration to the plaintiff, so in many actions the defendant is allowed a general form of plea, which disputes every thing in the Declaration, except those legal fictions which are considered as indisputable; and puts the plaintiff upon proving the whole of the case he has stated in the Record. In other forms of action, on the contrary, the defendant is by the rules of the Common Law obliged to select a particular part of the Declaration in his plea, and the plaintiff is not compelled to prove more than the fact which is denied by it. Since the Statute for the 4 Ann. amendment of the Law, however, this distinction is in a great measure done away; for, though the defendant cannot by one compendious plea deny the whole of the Declaration c. 16. |