The opinion of the Court was drawn up by

—• The act of 1824, c. 255, provided, “ that no person whatever shall bo allowed to place or set any net for the purpose of taking herring in any river, stream, harbor, creek, or cove, in the county of Washington,” except for the purpose of taking bait. The declaration alleges, that the defendant, being an inhabitant of Cutler, in that county, “ at said Cutler on the fifteenth day of September, 1840, a certain net for the purpose of taking herring, and with intent to take herring not for bait only, in a certain harbor or cove commonly called Little Machias Bay, in said county, did set and place contrary to the form of the statute.” It is contended, that the declaration would have been sufficient without the words, “ commonly called Little Machias Bay,” and that they may be considered as introduced for the purpose of venue, or may be rejected as surplusage.

*170In the case of the Company of Navigation v. Douglas, 2 East, 497, which was an action on the .case for obstructing the navigation of the river Irwel], it was held, that when it was doubtful, whether the place of injury was laid in the declaration as venue, or as local description, it should be referred merely to venue. Lord Ellenborough states in that case, that “ a plaintiff in such an action may indeed make it neces.sary to prove the gravamen in a particular place by giving it a specific local description.” The'same Judge says, in Purcell v. Macnamara, 9 East, 157, “ there are two sorts of allegations; the one matter of substance, which must be substantially proved,' the other of description, which must be literally proved.” This distinction was affirmed in Phillips v. Shaw, 4 B. & A. 435, and in Stoddart v. Palmer, 3 B. & C. 2.

It cannot be doubtful in this case for what purpose the language before alluded to was introduced. The venue had before been laid in due form at Cutler in that county; and the particular harbor or cove in which the net was placed was intended to be designated. An averment, which limits the. general language to some one harbor or cove, is necessarily descriptive. If the restrictive averment might have been omitted, being a part of the declaration, it became necessary to prove it as laid, and it could not be rejected as surplusage.

Exceptions overruled. .