Miller v. M'Kee 3 Md. 593

GENERAL COURT,

MAY TERM, 1797.

William Miller against Robert M‘Kee.

THIS was an action of assault and battery. The defendant pleaded son assault demesne, to which the plaintiff replied de injuria sua propria, &c. Issue was joined, and the jury sworn.

It appeared, by the evidence produced, that a battery was proved by the plaintiff on a different day, and at a different place, from that laid in the declaration, and, on motion of the defendant’s counsel, The Court (Duvale, J. contra) were of opinion that the plaintiff should not be allowed to give in evidence a battery on a different day, at a different place than that laid in the declaration, and cited Esp. 38. 320. 39f. Whereupon, on motion of the plaintiff’s counsel, leave was given to withdraw a juror, for the purpose of amending the declaration upon payment of the costs of the term up to the time.

An amended declaration was immediately filed, and, by order of court, a rule laid upon the defendant to plead by a certain day within the term. At which day the plea was filed, and the cause put to issue, and tried at the same term.

The declaration stated the battery to have been committed on a particular day in April, 1795, “ in a place called the yard of a certain David Dimoiddied’ The plaintiff proved a battery, but at a place different from that stated in the declaration.

It was contended, on behalf of the defendant, that the plaintiff was bound to prove the battery to have been committed in the place laid in the declaration.