
    CAMDEN DISTRICT,
    SPRING TERM,
    1794.
    The Commissioners of the Treasury v. Brevard.
    .If a replication disclose pew matter material to support the plaintiff’s action,it must conclude with a verification: and where such a replication concluded to the country, it was held bad upon demurrer; but thg plaintiff was permitted to amend.
    Leave inaybe given to withdraw a. demurrer to replication, and to rejoin.
    Unnecessary allegations must be proved, if they are relevant to the ground of the action. The distinction is between what is immaterial merely, and what is wholly irrelevant. The former pannof be rejected as siuy plusage.
    Debt on a bond, with condition, that the defendant should, while sheriff of Camden district, well and truly demean himself as such, and in all things appertaining to the said office, perform and execute the several and respective duties thereof, as by law required. The defendant prayed oyer of the bond, set forth the condition, and pleaded performance. The plaintiffs, protesting that defendant had pot performed the condition, as by lavy required, set forth and assigned a breach, in substance, as follows : viz. That after the defendant was in office, on such a day, a writ of capias ad respondendum, issued against one Daniel Garter, in behalf of one S. T. That S. T. recovered judgment, &c., and that execution was sued out pursuant to that judgment, which execution, came into the defendant’s hands, to be executed. That S. T. had -previously demanded security for the debt, according to the terms of a cer, lain act of assembly, called the instalment law, whereof thq da? fendaiit had notice ; and that although Daniel Carter had sufficient property to satisfy the whole debt of S. T., yet the defendant levied on^y those instalments which had accrued, and neglected to secure the residue of the debt, as in duty bound, áse. The conclusion of which replication was to the country.
    The defendant demurred, because the conclusion to the country was ill, inasmuch as it precluded the defendant from answering the new matter disclosed by the plaintiffs’ replication. This demurrer was argued before Judges Grijike, Burke, and Bay, in the Constitutional Court at Columbia, in May, 1794, and determined in favor of the defendant. The court holding the rule of pleading to be well established, that where either party introduces new matter, the other side shall have an opportunity of answering suclj new matter ; and, therefore, the replication should have concluded with a verification, for the defendant might hayo special matter to allege in discharge.
    The following authorities were cited, and relied on: 2 Wils. 65. Doug. 60. 2 Burr. 772. Cowp. 408, 575. 2 Str. 871. Com. Dig. Pleader. F 5. Cro. Jac. 589. Carth. 337. 2 Wils. 113.
    On motion, the plaintiffs had leave to amend their replication, which was done by altering the conclusion; and the defendant was allowed the usual time to plead, after amendment and notice.
    To the replication as amended, the defendant afterwards again demurred, and shewed various causes of demurrer. But having conceived it better to rejoin, made application to Judge Waties, at Camden, in the Fall term of 1794, and obtained an order for leave to withdraw his demurrer filed, and rejoin issuably, on payment of costs. This application was supported by the authority of Sherlock v. Templer, 1 Barnes’ Notes, 246, and Bac. Abr. Pleas and Pleadings, N. 3.
    The defendant having rejoined, and issue joined thereon, which put in issue the material facts set forth in the replication, the cause came on to be tried in Camden district court, in the Fall term of 1794; when alter the evidence in behalf of the plaintiffs was closed, the defendant’s counsel moved for a nonsuit, on the ground that the plaintiffs had not proved their case as laid : the replication having alleged, that S. T. before the entry of the execution in the sheriff’s office, had required security of Carter, and given notice thereof to the defendant, in consequence of which, the defendant was bound by the instalment law, to have sold under the execution, to secure the whole debt, and not for the instalments only, which were due in cash ; and no proof having been given t<j support this allegation. The. following authorities were cited, and relied on : Doug. 665. 2 Bl. Rep. 1104. 3 T. R. 643. 5 T. R. 497. And see 1 Bos. and Pul. 281, where the latter part of an averment was unnecessary, yet required to be proved.
    The case in Doug. (Bristow v. Wright,) goes much further than this case, requiring that even immaterial averments must be proved, ,if laid in the declaration, or set forth in the pleading. But the allegations laid in this replication, which have not boon proved, arc material, and necessary to ground the present action. Therefore, a multo fortiori, they ought to be sufficiently proved.
    In answer to these objections, the plaintiffs’ counsel denied the authority of the cases cited, .in our courts, and contended that the matters alleged, and not proved, were not material. That the replication would have been good without them ; and that if they had been omitted, and the defendant had demurred for that cause, the demurrer would have been overruled. Wherefore, he insisted that now they ought to be rejected as surplusage, and no evidence required to prove them.
    Foki>, for plaintiffs, Falconer, for defendant.
   By the court.

Waties, J.

Although I feel very great reluctance to determine any case upon a point of law which concerns .pot the merits of the case ; as it involves great hardship on the party against whom the decision is made, in a case like the present, by being turned back to where he begun, after a tedious attendance pn his suit, and after much expense and trouble about it, in consequence of a mere slip or mistake of counsel in pleading, or an inadvertency in preparing all the requisite proof to evince some circumstance, perhaps npt at all material to the real merits of the cause : yet the authorities, referred to by the defendant’s counsel, are too strong to be got over. I do not feel myself at liberty .to contradict the opinion of a judge of so much wisdom and liberality as Lord Mansfield, who was never indulgent to objections of .mere form, and ever was careful to examine exceptions which seemed more nice than useful, and bring them to the test of reason and sound sense. He has decided that a variance like the present is fatal; and his reasoning seems to bo conclusive, I am, therefore, hound to decide that there ought to be a nonsuit.

The plaintiffs acquiesced in this decision,  