of war which are printed by the King's printer; Bradley v. Arthur, 4 B. and C. 304, R. v. Withers, cited 5 T. R. 446; yet the book called "Rules and Regulations for the Government of the Army," will not be judicially noticed. Bradley v. Arthur, 4 B. and C. 304.

THE SUBSTANCE OF THE ISSUE ONLY NEED BE PROVED.

The substance of the issue joined between the parties need alone be proved. 1 Phill. Ev. 190. Thus, on a count against a sheriff for a voluntary escape, the plaintiff may prove a negligent escape. Bonafous v. Walker, 2 T. R. 126. So on a count on a policy for a total loss, he may prove a partial loss. Gurdiner v. Croasdale, 2 Burr. 904. So if a plea in trespass allege two matters, either of which amounts to a justification, proof of one of them is sufficient, though they are both put in issue by the replication. Spilsbury v. Micklethwaite, 1 Taunt. 146. In an action on a bond, the condition of which is, that the obligor will not cut down any trees, if the plaintiff assigns a breach, that the obligor cut down twenty trees, he may prove that part of that number only were cut down. Co. Litt. 282 (a). In slander, the plaintiff is entitled to a verdict on proof of some of the actionable words laid. Compagnon v. Martin, 2 W. Bl. 790. In replevin, the defendant, who avows for rent arrear, is entitled to a verdict, though he prove less to be in arrear than he has alleged. Harrison v. Barnby, 5 T. R. 248. When an averment is divisible, it is sufficient to prove one part of it. Thus, where in a declaration for a false return to a fi. fa. against the goods of A. and B. it was alleged, that A. and B. had goods within the Bailiwick, it was held sufficient to prove that either A. or B. had goods. Jones v. Clayton, 4 M. and S. 349.

The doctrine of variances in general depends upon the rule that the substance of the issue only need be proved.

Variance-amendment.] By a late act, the court has the power of ordering the record to be amended in case of variance. By 9 Geo. IV. c. 15, it is enacted, that it shall and may be lawful for every court of record holding pleas in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer, and general jail delivery in England and Wales, the town of Berwick upon Tweed, and Ireland, if such court or judge shall see fit to do so, to cause the record on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pend

ing, to be forthwith amended in such particular by some officer of the court, on payment of such costs, if any, to the other party, as such judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea and returned together with the record, and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly. See Webb v. Hill, 1 M. and M. 253, stated post. Where a judgment is stated in the record as of one court, and it appears by the production of an examined copy to have been obtained in another, the judge may order the record to be amended under the above statute. Briant v. Eicke, 1 M. and M. 359. Where in replevin the de-, fendant avowed for rent arrear, and on production of the lease. it varied from the terms of the tenancy stated in the avowry, Park J. refused to permit an amendment under this statute, observing, that it only applied to cases where some particular written instrument was professed to be set out or recited. Ryder v. Malbon, 3 C. and P. 594. So where certain words had been added to an acceptance of a bill, obviously after the bill was accepted, and the declaration stated the acceptance with the addition of these words, Lord Tenterden refused an amendment, saying that it was not one of those cases where there had been a verbal mistake in setting out some written document. Jelf v. Oriel, 4 C. and P. 22, and see Rutherford v. Evans, Id. 79. Where the declaration against the acceptor of a bill misstated the date of the bill, Parke J. allowed an amendment without costs. Bentzing v. Scott, Id, 24.

Variance in contract—in the parties.] It is a fatal variance, if it appear that a party who ought to be joined as plaintiff has been omitted; Graham v. Robertson, 2 T.R. 282; 1 Saund. 291, h (n); but it is no variance to omit a person who might have been joined as defendant; the non-joinder must be pleaded in abatement. Evans v. Lewis, 1 Saund. 291, d (n). Thus, where the declaration stated a bill of exchange to have been drawn upon, and accepted by the three defendants, and it was proved to have been drawn upon and accepted by them jointly, with a fourth, it was held no variance. Mountstephen v. Brooke, 1 B. and A. 224. Where a contract has been made with two persons, one of whom has since died, and the action is brought upon such contract by the survivor, without stating the fact of his being survivor, it is a fatal variance; Jell v. Douglas, 4 B. and A. 374; but it is otherwise with regard to the party against whom an action is brought, who need not be stated to be survivor, for the joint debt may, by reason of the death of the party, be treated as if it had been originally a separate debt. Richards v. Heather, 1 B. and A. 29. Where a contract

is made by one of several partners (the partnership being really interested) it is no variance, that the action is brought in the names of all the partners; Garrett v. Handley, 4 B. and C. 664; for the action may be maintained either in the name of the person with whom the contract was actually made, or in the name of the parties really interested. Skinner v. Stocks, 4 B. and A. 437. Thus, where an attorney carried on business under the firm of " A. and Son," the son not being in fact a partner, but acting as a clerk to his father, and receiving a salary, it was held that A. might maintain an action in his own name, to recover from a client the amount of a bill for business done. Kell v. Nainby, 10 B. and C. 20. It is a fatal variance to describe a bond conditioned for payment by A. B. and C. as a bond for payment by A. B. and D., though the bond be several as well as joint, and the action be against A. seve rally. Adams v. Bateson, 6 Bingh. 110. The non-joinder of a secret partner cannot be pleaded in abatement. Mullett v. Hook, 1 M. and M. 88. See post Assumpsit Defence."

Variance in contract-in consideration.] It is not necessary for the plaintiff to set out all the several parts of a contract consisting of distinct and collateral provisions, it is sufficient to state so much of the contract as contains the entire conside→ ration for the act, and the entire act to be done in virtue of such consideration, including the time, manner, and other circumstances of its performance. Clarke v. Gray, 6 East, 568. Parker v. Palmer, 4 B. and A. 387. Thus, where the plaintiff declared, that in consideration of his redelivery to the defendant of an unsound horse, the defendant promised to deliver to him another horse, which should be worth 80l. and be a young horse, and a breach was assigned in both those respects, it was held no variance, though it was proved that the defendant also promised that the horse was sound, and had never been in harness. Miles v. Sheward, 8 East, 7. The omission of any part of the consideration is a fatal variance. Thus, in assumpsit by landlord against the assignees of a bankrupt, on an agree ment to pay ten shillings in the pound for rent due from the bankrupt and themselves, it appeared that part of the consideration was, that the plaintiff should accept a surrender, which consideration being omitted, the plaintiff was nonsuited. Dashwood v. Peart, Munning's Index, 308. So where the contract declared on was, that the defendant should deliver to the plain tiff all his tallow at 4s. per stone, and the contract proved was, that the defendant should deliver it at 4s. per stone, and so much more as the plaintiff paid to any other person, the variance was held fatal. Churchill v. Wilkins, 1 T. R. 447. It seems, that if the declaration state the consideration to be certain reasonable reward, evidence that a specific sum was agreed

on will not be a material variance. Semb. Per Chambre, J. Bayley v. Tricker, 2 N. R. 458, see post, p. 45.

Variance in contract-in the promise.] It is only necessary to state so much of the promise, for the breach of which the plaintiff proceeds, supra. But the omission of a qualification in the promise will be fatal. Thus, the statement of a general warranty of a horse is not supported by proof of a warranty of soundness, excepting a kick on the leg. Jones v. Cowley, 4 B. and C. 445. So when the plaintiffs declared, that for certain hire and reward the defendants undertook to carry goods from London, and deliver them safely at Dover, and the contract proved was to carry and deliver safely (fire and robbery excepted) the variance was held fatal. Latham v. Rutley, 2 B. and C. 20. So a promise in the alternative cannot be stated as an absolute promise. Penny v. Porter, 2 East, 2. So any addition to the promise will be a fatal variance. Thus, a contract to deliver soil cannot be declared upon as a contract to deliver soil, or breeze, if it appear that soil and breeze are different articles. Clark v. Manstone, 5 Esp. 239. So the omission of any part of the entire promise, for the breach of which the plaintiff proceeds, will be fatal. Thus, where land was alleged to have been demised at a rent of 15l. and, in evidence, the rent appeared to be 15l. and three fowls, the variance was held fatal. Sands v. Ledger, 2 Ld. Raym. 792. So where the allegation was, that the defendant promised to farm certain land in a husbandlike manner, and the proof was that he promised to farm the land in a husbandlike manner, to be kept constantly in grass, the variance was held fatal. Saunderson v. Griffiths, 5 B. and C. 909. But, if the omission does not alter the legal effect of the promise, the variance is immaterial. Thus, where the promise was stated to be to deliver a quantity of gum Senegal, but the contract appeared by the evidence to be for the delivery of rough gum Senegal, the variance was held immaterial, it appearing that all gum Senegal on its arrival in this country is called rough. Silver v. Heseltine, 1 Chitty, 39. So where the declaration stated that the defendant had agreed to buy a large quantity of head matter and sperm oil in the possession of the plaintiff, which was afterwards ascertained to be a given quantity, and the contract proved was for the purchase of all the head matter and sperm oil, Per the Wildman," it was held no variance. Wildman v. Glossop, 1 B. and A. 9.

Variance in contract—in legal effect.] It is in general sufficient to describe a contract according to its legal effect. See Thornton v. Jones, 2 Marsh. 287. An agreement to sell oats at so much per bushel must be taken to mean the Winchester

bushel, and will not be supported by evidence to sell by some other bushel. Hockin v. Cooke, 4 T. R. 314. So if a bill of exchange is stated to have been drawn for a certain sum of money, it will be intended to be English money. Kearney v. King, 2 B. and A. 301. Sprowle v. Legge, 1 B. and C. 16. But, upon a common count for money lent, it is no variance if the loan is proved to have been of foreign coin, as pagodas. Har rington v. Macmorris, 5 Taunt. 228. It has been held, that a statement of a contract to deliver saddles to the plaintiff at a reasonable price, is supported by proof of an agreement to deliver saddles "at 24s. a 26s." Laing v. Fidgeon, 6 Taunt. 108, and see Bayley v. Tricker, 2 N. R. 458, unte p. 44. But where the declaration was for not removing goods in a reasonable time, and the contract proved was to remove in a month, it was ruled by Lord Kenyon to be a fatal variance. Hore v. Milner, Peake, 42, a. So an averment of a contract to do an act on request, is not proved by a contract to do it on a certain day. Bordenave v. Bartlett, 5 East, 111. So the allegation of an agreement to take a full cargo of wheat is not supported by evidence of an agreement to take on board 500 quarters of wheat, though that quantity in fact amounts to a full cargo. Harrison v. Wilsm, 2 Esp. 708. But see Wickes v. Gordon, infra. An allegation of a retainer "at a certain salary, to wit, 250l. per annum,” can be supported only by proof of a contract for a specific annual salary. Preston v. Butcher, 1 Stark. 3. The statement of a contract for the purchase of a certain quantity, to wit, eight tons of goods, is supported by proof of a contract for the purchase of about eight tons, the precise quantity having been ascertained to be eight tons. Gladstone v. Neale, 13 East, 418. The statement of a contract to deliver stock on the 27th of February, is proved by evidence of a contract to deliver on the settling day, coupled with proof that the settling day was fixed for, and understood by the parties to mean the 27th February. Wickes v. Gordon, 2 B. and A. 335. An averment, that a bill was drawn by certain persons using the style of " Ellis, Needham, and Co." is supported by proof, that the bill was drawn by A. only under the firm of Ellis, Needham, and Co. Bass v. Clive, 4 M. and S. 13. So a general averment, that a bill was accepted by the defendants, is proved by evidence, that it was accepted by their authorized agent for them. Heys v. Heseltine, 2 Campb. 604. And a conveyance to the defendant's nominee, supports an averment that the defendant became the purchaser. Seaman v. Price, R. and M. 195. A declaration on a joint bond is supported by proof of a joint and several bond. Middleton v. Sandford, 4 Campb. 34. In an action on a promissory note by A.B., if the plaintiff allege that the note was made payable to him by the name of A.C., and the note ap