Eleanor Chapel versus William H. Congdon el al., 18 Pick. 257

Putnam J. delivered the opinion of the Court. A mistake, which is obvious to all, has beers made by the magistrate in the drought of the bond. If it be in matter of substance, it will be fatal; if it be only redundant matter of description, which is not necessary to be literally proved, the claim may be supported, if enough remains to establish the identity.

The rule is well stated in 3 Stark, on Evid. 1529. “ It is a most general rule, that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected.” Now the thing which was essential to the plaintiff’s claim or accusation was, that William H. Congdon was the father of the child of which the plaintiff was then pregnant, which if born alive would be a bastard. Whatever is essential to the description of that accusation may not be rejected.

But the converse of that proposition would seem to be true, that whatever is set forth which is not essential to the charge, may be rejected. They would be considered as redundant allegations, which may be rejected, and which need not be proved, provided that there be left sufficient allegations and proofs, to maintain the accusation. It would be absurd to hold a party bound to prove what may be wholly rejected from his complaint, leaving nevertheless a sufficient charge to be legally established by competent evidence. Thus in Colburn v. Downes, 10 Mass. R. 20, the plaintiffs alleged that they, “ James S.

Colburn and William Gill,” sued one Burton, and that the defendant became bail, &c. But in the bail bond, the plaintiffs were called John S. Colburn and George W. Gill, but were described as “of Boston, in th county of Suffolk, merchants and copartners in trade jointly negotiating in business, under the firm of Coburn & Gill.” It was held to be a sufficient description of the plaintiffs. So in Shrewsbury v. Boylston, 1 Pick. 105, it was held, that the wrong date of a statute may be rejected, as surplusage, where the reference is clear without it. And see Rodman v. Forman, 8 Johns. R. 27; Page v. Woods, 9 Johns.

R. 82; Vowles v. Miller, 3 Taunt. 137. So in Judge v. Morgan, 13 East, 547. In an action for a malicious prosecution, the judgment was recited, “ that the plaintiffs should take nothing by their writ, but that they and their pledges to prosecute ” should go without day. But the record had not the words “ and their pledges to prosecute.” Held to be an immaterial omission. Now this bond was given for the purpose of compelling the principal to appear at the Court of Common Pleas in October, 1833, to answer to the accusation before described.

And it is set forth in the accusation, that the party complaining was then pregnant, and that the principal in the bond was the father of the child. The accusation is sufficiently set forth in the condition of the bond, notwithstanding the particular day on which it was made is mistaken, and a time inserted, which is necessarily inconsistent with the fact of existing pregnancy. The bond is dated on the 16th of September, 1833.

Rer ject the words “ in the year of our Lord eighteen hundred and sixteen,” (which are, in the condition, recited as the time when the accusation was made,) and there will be still left a sufficient recita of the accusation. It will appear that W. H. Congdon was to appear at the Court of Common Pleas, as above expressed, to answer the accusation which the plaintiff had made against him, of being the father of the bastard' child of which she was then pregnant. The day on which she made her accusation is not an essential part of the description of it.

It was to that accusation, that the principal was to appear and answer. and abide the order of the court thereon. He could not mistake his duty. But he failed to do it; and we all think that the judgment should be entered up against him upon the bond.