Sanders v. Palmer

12 S.C.L. 165

• Court: Supreme Court of South Carolina
• Decided: May 15, 1821
• Status: Published

Opinion

Mr. Justice Colcock

delivered t’ne opinion of the Court.'

No rule in pleading is better established, than .that the probata and allegata must correspond. Now the charge here was, that on a given day a trespass was committed on a horse and two cows, and the proof was, that on the day mentioned in the declaration, a trespass was committed on the horse alone. The reason of the rule is obvious. If one thing could be charged and another proved, how could a defendant come prepared with, testimony? In the case before us vvhat was there to induce the defendant, when called upon to answer for a trespass alleged to have been committed in 1817, to know that he was to be prepared to •answer for another committed in 1820? Would the exhi-bill on of one charge be sufficient to require him to answer for the transgression of a whole life ; Surely not.

M’Duffie, for the motion. Gist, contra.

It is a rule that if the trespasses are of a permanent nature, in which the injury is continually renewed, the declaration should state it with a continuando. But where the injuries and acts terminate in themselves, and being once done, cannot be done again, there can be no continu-ando. As killing a number of horses, each of which is a separate act, these are to be declared on as done diversis diebus et vicibus, between sucli and such a time. (1 Espinasse N. P. Gould Edi. part 11, 295.) And in 2 Ghitty, 367, note (s) it is said,' “ But if only one day be mentioned, the plaintiff will not be permitted to give evidence of more than one act of trespass; and ior this refers to the highest authorities. The evidence therefore ought to have been rejected, and the motion is granted.

Justices Neff, Johnson, Richardson and Gantt, concurred.