City Council of Charleston v. Schroeder

38 S.C.L. 296

• Court: Court of Appeals of South Carolina
• Decided: January 15, 1851
• Status: Published

Opinion

Curia, per

Wardlaw, J.

It may be that the particular violation of ordinance for which the defendant was sued, might have been described sufficiently by other circumstances, without mention of the name of the person to whom the sale of coal was made: or that even a statement too indefinite to identify the particular violation might, when made specific by proof, have served to sustain the action and have been liable only to the objection that it must have been held to cover all similar violations by the defendant prior to the commencement of the suit. It may, therefore, not have been necessary to introduce the name of Miss Mary Bates. But however these propositions might be determined, the name having been introduced must be proved; upon the general principle which requires immaterial matters contained in a necessary averment to be proved as they are laid. The name could not be struck out as surplusage, because it does not stand so independent that it could be separated from other parts of the averment which are plainly indispensable.

A new trial is ordered.

O’Neall, Evans, Fkost, Withers and Whit neb, JJ. concurred.

New trial ordered.