
    Martha Sanders vs. Randolph Palmer.
    A trespass must be proved as laid.
    Where the declaration stated, that a trespass had been committed on t. certain day, upon a Horse and Cow, proof that the trespass was com-roitted on the Horse in 1817, and on the Cow in 1820, will not sup, port the declaration.
    If the trespass be of a permanent nature, in which the injury is continually renewed, the declaration should state it with a cmiiinuando.
    
    Spartanburg].! district — -Spring Term, 1821. Tried be* fore 'Mr. Justice Huger,
    
    TCniS was an action of trespass for an injury to a horse, aud two cows. There was but one count in the declaration, alleging the trespass to have been committed on the. same day on the horse and cows.
    The'plaintiff proved the trespass on the horse in 1817, and offered to prove the trespass on the cows in 1820.
    The defendant objected to the testimony, insisting that the plaintiff ought to elect a trespass.
    The' Judge overruled the objection, and charged the • jury that they were authorized to find for both trespasses,.
    A verdict wag given for the plaintiff for one hundred dollars.
    And a motion was now made for a new' trial, because the plaintiff could not.recover for two distinct trespasses, three years remote from each other, under a declaration containing a single count, and alleging the trespasses on a single day.
   Mr. Justice Colcock

delivered t’ne opinion of the Court.'

No rule in pleading is better established, than .that the probata and allegata must correspond. Now the charge here was, that on a given day a trespass was committed on a horse and two cows, and the proof was, that on the day mentioned in the declaration, a trespass was committed on the horse alone. The reason of the rule is obvious. If one thing could be charged and another proved, how could a defendant come prepared with, testimony? In the case before us vvhat was there to induce the defendant, when called upon to answer for a trespass alleged to have been committed in 1817, to know that he was to be prepared to •answer for another committed in 1820? Would the exhi-bill on of one charge be sufficient to require him to answer for the transgression of a whole life ; Surely not.

M’Duffie, for the motion.

Gist, contra.

It is a rule that if the trespasses are of a permanent nature, in which the injury is continually renewed, the declaration should state it with a continuando. But where the injuries and acts terminate in themselves, and being once done, cannot be done again, there can be no continu-ando. As killing a number of horses, each of which is a separate act, these are to be declared on as done diversis diebus et vicibus, between sucli and such a time. (1 Espinasse N. P. Gould Edi. part 11, 295.) And in 2 Ghitty, 367, note (s) it is said,' “ But if only one day be mentioned, the plaintiff will not be permitted to give evidence of more than one act of trespass; and ior this refers to the highest authorities. The evidence therefore ought to have been rejected, and the motion is granted.

Justices Neff, Johnson, Richardson and Gantt, concurred.  