
    
      The City Council of Charleston vs. Jacob Schroeder.
    
    
      Sum. pro. for selling coal in violation of a City Ordinance. The process alleged a sale to Miss Mary Bates, and the proof was of a sale to Miss Bates. Held, that the allegation was not proved.
    Immaterial matters contained in a necessary averment must be proved as they are laid.'
    
      
      In the City Court of Charleston, May Term, 1850.
    
      Sum. fro. to recover a penalty of $50, imposed by a City Ordinance, for selling coal which had not been weighed upon one of the public balances. The process alleged a sale to Miss Mary Bates. The proof was, that the defendant delivered the coal at the house of Miss Bates ; — that there were several sisters (the Misses Bates) who lived and kept school at the same place.
    The defendant moved for a nonsuit, on the ground that there was no proof of a sale to Miss Mary Bates. His Honor, the Recorder, overruled the motion; and the defendant appealed, and now, in this Court, renewed his motion.
    
      Yeadon, for the motion,
    cited Riley’s Law Cases, 66-72; 1 Rice Dig. 394.
    
      Porter, City Attorney, contra.
   Curia, per

Wardlaw, J.

It may be that the particular violation of ordinance for which the defendant was sued, might have been described sufficiently by other circumstances, without mention of the name of the person to whom the sale of coal was made: or that even a statement too indefinite to identify the particular violation might, when made specific by proof, have served to sustain the action and have been liable only to the objection that it must have been held to cover all similar violations by the defendant prior to the commencement of the suit. It may, therefore, not have been necessary to introduce the name of Miss Mary Bates. But however these propositions might be determined, the name having been introduced must be proved; upon the general principle which requires immaterial matters contained in a necessary averment to be proved as they are laid. The name could not be struck out as surplusage, because it does not stand so independent that it could be separated from other parts of the averment which are plainly indispensable.

A new trial is ordered.

O’Neall, Evans, Fkost, Withers and Whit neb, JJ. concurred.

New trial ordered.  