
    Pollard vs. Thomason.
    1, In an action for the sale of a horse contrary to the provisions of the act of 1833, ch. 80, the declaration must aver that the plaintiff is the head of a family.
    
      2. Where an allegation is necessary in a declaration to maintain an action, its omission in the declaration cannot be supplied by the proof.
    This was an action of trover by Pollard against Thomason, Sheriff of Grainger county, for the seizure and sale of a horse by fi. fa. against said Pollard. The declaration did not aver that plaintiff was the head of a family. The defendant pleaded not guilty, and at the trial it appeared that Pollard had but one horse, and no mule or yoke of oxen; that he was engaged in agriculture, and was the head of a family, and that the horse was worth $30.
    The presiding Judge, Robert M. Anderson, charged the jury, that in an action under this statute it was necessary to aver that plaintiff was the head of a family as directed by the 5th section of the act, and that not being averred in the declaration, no proof could supply its omission, and that all proof to that point was inadmissible.
    The jury rendered a verdict for the defendant. The plaintiff appealed.
    
      Peclc, for the plaintiff in error.
    
      J. A. McKinney J. Netherland, for the defendant in 'error.
   Reese, J.

delivered the opinion of the court.

This is an action for selling the horse of the plaintiff contrary to the provisions of the act of 1833, ch. 80, sec. 5. The declaration does not alledge that plaintiff is the head of a family; and the court charged, that the jury would not regard any proof they might have heard on that point in the absence of any such allegation. This is assigned for error. If the declaration be necessary to maintain the action, its omission in the declaration cannot be supplied by the proof. If it was not necessary, no injury was done by the charge. But we think it was necessary. It was incumbent on the plaintiff in such a case, to make it appear in his declaration and proof, that his condition and attitude placed him within the provisions of the act of assembly. If he were not the head of a family, the act of assembly had nothing to do with him. Aside from this point, the proof in the bill of exceptions shows that the plaintiff was not entitled to a verdict.

Affirm the judgment.  