1 Denio 181 | Court for the Trial of Impeachments and Correction of Errors | 1845
In actions for torts the plaintiff may, as a general rule, recover without proving the whole declaration, provided he proves so much of it as would, standing alone, constitute a good ground of action. There is an exception to the rule where the count contains matter of description, and, in consequence of proving only a part, the proof does not correspond with the allegation. . There, the variance will be fatal. (Ricketts v. Salwey, 2 Barn. & Ald. 363, per Abbott, Ch. J.) The plaintiff might well recover for the taking of the goods without proving the rest of the count; but his case unfortunately falls within the exception to the rule. The allegation is, that the taking of the goods was part of a trespass in which the breaking of the close was the principal thing; (Taylor v. Cole, 1 H. Black. 555;) and that the taking was in the close. This must be regarded as matter of description; and it is not only unsupported by the evidence, but it is proved to be false. There was no entry into the plaintiff’s close, and the taking was in the close of another man. Although the taking of goods is in its nature transitory, it is here so coupled with the breaking of the close, which is local, that both are made local; and both must be proved as laid. There should have been a count for the taking alone. In Smith v. Milles, (1 T. R. 479,) Buller, J., in speaking of this kind of action, said, the general use of adding the second count is this ; the first charges an injury done to the land, and taking the goods there: that is
The plaintiff relies on the rule, that the pleadings in justices’ courts are to be liberally construed; but the rule has nothing to do with this case. There is no defect in the declaration, either in form or substance. The difficulty is, that the declaration is not supported by the proof; and for that reason the plaintiff was properly nonsuited.
Judgment affirmed.