Howe v. Willson
Court for the Trial of Impeachments and Correction of Errors
Error to Onondaga C. P. Howe sued Willson before a justice, and declared for that the defendant on, &.c., with force and arms broke and entered the plaintiff’s close situate at Y. in the comity of O., and then and there took and carried away the plaintiff’s horse, &c. Plea, not guilty. The plaintiff recovered before the justice $55 damages, besides costs; and the defendant appealed.
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Error to Onondaga C. P. Howe sued Willson before a justice, and declared for that the defendant on, &.c., with force and arms broke and entered the plaintiff’s close situate at Y. in the comity of O., and then and there took and carried away the plaintiff’s horse, &c. Plea, not guilty. The plaintiff recovered before the justice $55 damages, besides costs; and the defendant appealed. On the trial in the C. P. the plaintiff gave no evidence of a breaking of his close ; but proved that the defendant entered the close of another man near by the plaintiff’s and took and carried away the…
1Opinion of the Court
By the Court, Bronson, Ch. J.
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…
2Cited by17 opinions
- Ellenwood v. Marietta Chair Co.Supreme Court of the United States · 1895
- American Union Telegraph Co. v. MiddletonNew York Court of Appeals · 1880
- McGonigle v. AtchisonSupreme Court of Kansas · 1885
- Clark v. Van VranckenNew York Supreme Court · 1855
- Boyd v. . CummingsNew York Court of Appeals · 1858
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