
    William Durgin and Others, Plaintiffs in Review, versus John Leighton.
    In trespass for breaking and entering the plaintiff’s close, and destroying his mill-dam, evidence was admitted of the destruction of a dam in the same close, and across the same stream, at some distance above the mill, called the false dam, and used only for stopping the water for the convenience of repairing the mill-dam below.
    In trespass against three, judgment was rendered against all the defendants ; on the review .by them, the plaintiff obtained a verdict against two only, and for increased damages: the third was allowed to tax the costs of travel and attendance for himself and all the witnesses used in the defence, both on the first trial and on the review.
    This was a review of an action of trespass, in which the plaintiffs in review were original defendants, and the defendant in review original plaintiff.
    The declaration alleged that the defendants, with force and arms, broke and entered the plaintiff’s close in Shapleigh, and “ cut down, tore away, and destroyed, the plaintiff’s mill-dam, then and there being and standing across Ossipee River, and let out the water of the pond above said dam; whereby the plaintiff’s timber, stones, gravel, and other materials for another dam below said dam, were wholly swept away and destroyed.”
    The action was tried before Thacher, J., at the last October term in this county, upon the general issue; when it was proved that the plaintiff owned and possessed the close described, and the dam within said close, which was * torn down and de- [ * 57 ] strayed. It also appeared, from the testimony of witnesses, that the dam, which had been torn down and destroyed, was erected across the said river by the plaintiff, for the purpose of stopping the water above, while the plaintiff should repair his mill-dam by his mill; that the dam thus destroyed was always called a false dam, and was never called the mill-dam; that the dam by the mill was called the mill-dam, and that only; that the false dam, so called, was situated about thirty-three rods above the mill-dam, and was never designed or used for any other purpose, but that of stopping the water, while the mill-dam was under repairs, for which purpose it was necessary; and that both said dams were within the said close.
    These facts appearing, the defendant’s counsel objected to the admission of any evidence as to the destroying the false dam, so called, as not comporting with the declaration.
    But the judge, before whom the cause was tried, admitted the evidence objected to, and, on the evidence produced after said objection was overruled, instructed the jury, if they believed the defendants guilty, to assess damages equal to the injury sustained by the plaintiff by the destruction of the dam as alleged, which they accordingly did. The counsel for the defendants excepted to the said opinion, decision, and direction, of the judge; and the action was continued for the consideration of the said exceptions.
    
      Mellen, in support of the exceptions, argued that the verdict and recovery in this action would be no bar to another action, in which the defendants should be charged .with destroying the false dam. 
    
    
      Emery who was about replying for the plaintiff, was stopped by the Court.
    
      Holmes, also of counsel for the plaintiff,
    suggested that the three defendants had all been found guilty on the first trial; that, on the trial upon the review, two only had been found guilty, but the plaintiff’s damages had been increased, so that he would be entitled to
    
      double costs. The defendant, who had been acquitted [ * 58 ] on the review, was of course * entitled to costs; and he had taxed in his bill full costs for the travel and attendance of all the witnesses summoned and used in the common defence of the three defendants. Holmes moved the Court that he should not be allowed more, on account of the witnesses, than one third of the fees for their travel and attendance; observing that, if this defendant had in fact paid more than his proportion, he would have his remedy against his companions.
    
      
       6 Co. Rep. 14. — Cowper, 766. — Bac. Mr. Trespass. K. 6 & 7
    
   Curia.

The dam destroyed was a mill-dam, although, as erected for a temporary purpose, it had obtained the distinguishing name of the false dam. There is no question as to the identity of the close. The evidence was sufficient for the jury to apply it to the dam actually injured. Even in a question arising upon written evidence, this equivocal use of a proper name would not be regarded as a misnomer, or as a material variance between the averments of the declaration, and the evidence adduced to maintain the action ; and the supposed variance is altogether immaterial, and still less to be regarded, in a case depending on oral testimony, when every opportunity is given, at the trial, to remove from the minds of the jury every possible occasion of mistake or uncertainty. The exceptions are therefore overruled, and judgment is to be entered according to the verdict,

As to the question that has been made respecting the costs, had the defendant, who has been finally acquitted, paid a part of the first judgment, we should have ascertained the amount so paid by him, and given him judgment for it on this review. But that is not the present case. His claim now is for the expenses he has been put to in defending himself. To these he is entitled. We have no means of ascertaining what portion of the witnesses used in the defence was necessary to his acquittal individually. He has prevailed, and is by law entitled to the fees for his own travel and attendance, and for the travel and attendance of the witnesses, as certified on the subpoenas; and these he is to be allowed to tax for the former trial, as well as for that on the review.

ADDITIONAL NOTE.

[As to variance, see Crane vs. Dygent, 4 Wend. 675. — Guyon vs. Lewis, 7 Wend 26. — Miner vs. Clark, 15 Wend. 425. — Potter vs. Hopkins, 25 Wend. 417.—Eichel, berger vs. Smyser, 8 Watts, 181. — Chestnut Hills, &c., vs. Chase, 14 Cork. 123. — Kellogg vs. Denslow, Ibid. 411. — Neal vs. Fisher, 2 Hurr. & G. 274. — Dorr vs. Fenno, 12 Pick. 521. — Fay vs. Goulding, 10, Pick. 122.— Sumner vs. Tileston, 7 Pick. 1118. Harrington vs. Brown, Ibid. 232.

As to costs in case of joint parties, see Hinman vs. Booth, 20 Wend. 666. — Warner vs. Lowndes, 1 Hall, 224. — Maus vs. Maus, 10 Watts, 87. — Weed vs. Richardson, 2 Dev. & Bat. 535. — Matthews vs. Vining, 21 Pick 335. — F. H.] 
      
      
         [As to the breaking and entering the close, there could be no question ; for it was admitted that the description was correct, so far as it related to the close. For this wrong the plaintiff was entitled to nominal damages. But the variance between the matters alleged as special damage, and the proof, presents an important question. The charge was the destroying a mill-dam; the proof was, that there were two dams in the close, one of which was, and was always called, a mill-dam, and the other neither was, nor was ever called, a mZZ-dam; but was a dam erected for a temporary purpose, and called a false dam. Did the judge properly admit the evidence under the above allegation ? The Court say, u The variance is altogether immaterial, and still less to be regarded in a case depending on oral testimony, when every opportunity is given, at the trial, to remove irom the minds of the jury every possible occasion of mistake or uncertainty.” But what distinction, in this regard, can there be between a case depending on written, and a case depending on parol testimony ? Is it enough, in either case, that the jury can be made to understand, at the trial, the nature and extent of the plaintiff’s claim from the proof he introduces ? Has not the defendant a right to be apprized beforehand of the specific nature and extent of the claim or charge that is made against him, in order to prepare his defence ? Are not the court to be informed, from the record, whether the facts have been proved which are necessary to support the verdict, so that they may render the proper judgment? Ought not the record to agree with the proof, so that the defendant may avail himself of the verdict and judgment, should the same rights or liabilities be again discussed ? Starkie says, w It is a most general rule, that no allegation, which is descriptive of the identity of that which is legally essential to the charge or claim, can ever be rejected. Were it otherwise, and if proof could be admitted which varied from the record, in consequence of the omission to prove any allegation descriptive of an essential particular, it is plain that the proof would no longer agree with the cause of action, oi charge alleged, to any extent; they would differ throughout in respect of that descriptive allegation ; and as the proof would be more general than the allegations, it would no longer be partial proof of the same charge or claim, but of a different and more general one. As an absolute and natural identity of the claim or charge alleged with that proved, consists in the agreement between them in all particulars, so their legal identity consists in their agreement in all the particulars legally essential to support the charge or claim; and the identity of those particulars depends wholly on the proof of the allegations and circumstances by which they are ascertained, limited, and described. Foz instance, if, in an action for breaking the plaintiff’s close, he were to describe it as abutting on the several closes of A, B, C, D, these would all be allegations descriptive of that which was material, that is, of the subject matter to which the injury was done, and a variance from any one Would be fatal. For if the allegation that the locus in quo abutted on the close of A could be rejected as immaterial, the other abuttals might also be disregarded. Evidence would then be admitted of a trespass in an entirely different close; the defendant might come prepared to rebut the charge of trespass as far as regarded the close described, but be wholly unprepared to justify an entry into any other close, and the record would afford no evi dence, or, what is worse, might mislead in case of future litigation between the same parties. So, if a man were to be charged with stealing a black horse, the allegation of color, though unnecessary, yet being descriptive of that which is material, could not be rejected: to admit evidence that ne stole a white one, would not be to prove a part of that alleged, but to prove an offence in respect of a subject matter proved to be different. The very omission to prove the boundaries in the former case, or the color in the latter, would be fatal, although different boundaries or different color should not be proved; for neither the trespass nor the larceny could be considered the same with that alleged, until the allegations descriptive of identity were proved; that is, whilst the proof was general, but the description special; for so long it would be pos sible that the subject matter proved was wholly different from that alleged. It seems, indeed, to be a universal rule, that a plaintiff or prosecutor shall in no case be allowed to transgress those limits which, in point of description, limitation, and extent, he has prescribed for himself; he selects his own terms in order to express the nature and extent of his charge or claim; he cannot, therefore, justly complain that he is limited by them : to allow him to exceed them would, for the reasons adverted to, be productive of the greatest inconvenience. Upon the same principle, no allegation can be proved partially in respect of extent or magnitude, where the precise extent or magnitude is in'its nature descriptive of the charge or claim. But in case of redundant allegations, it is sufficient to prove part of what is alleged according to its legal effect, provided that that which is alleged, but not proved, be neither essential to the charge or claim, nor describe or limit that which is essential; and provided, also, that the facta proved be alone sufficient in law to support the charge or claim. And redundancy of proof will not be material, unless that which is proved, but not alleged, contradict that which is alleged.” —Stark. Ev. pt. 4, pp. 1530,1, 2,3. — See, too, Chitty, Plead. 4th ed. pp. 348, 9. — Roscoe, Real Motions, vol. ii. pp. 671, 2, as to necessary allegations in trespass qu. cl. — Ed.]
     
      
       [But see West vs. Brock & Al., (3 Pick. 303,) where two of three defendants, were al'owed two thlzds of the costs of and witnesses.— Ed.]
     