majority">Radcliff, J.

I shall examine the errors assigned, in the order in which they are stated.

1. The rule is, that what may be rejected as surplusage, and which might have been struck out, on motion, need not be proved ; as where the declaration contains impertinent matter, foreign to the cause of action ; but if the very ground of the action be misstated, as if the plaintiff undertake to recite that part of a deed on which the action is founded, and it is misrecited, it will be fatal. (Bristow v. Wright, Doug. 642, 643.) In Savage, qui tam, v. Smith, (2 Black. Rep. 1101,) it was held, that if a plaintiff set forth a judgment on which a ft. fa. issued, although it would have been sufficient to set forth the only, he shall be held to prove the judgment, and the difference is there taken, between immaterial and impertinent averments; *the former must be proved because relative to the point in question, but the latter need not.

So, in all cases, where the action depends on the proof of a contract, the contract must be proved as laid, for it is the gist of the action. (Cowp. 671. 1 Term Rep. 447. 3 Term Rep. 531.) And a trivial variation in setting out a record or any written instrument, as well as a contract, has been held to be fatal. (4 Term Rep. 560, 590, 687.) Yet in the case of King v. Peppil, (1 Term)Rep. 235,) the word “if,” in the declaration, in setting forth a precept, was rejected as sur= plusage, and the record as produced, without that word, was admitted as sufficient to support the declaration. The cases which have been cited, so far as they relate to a variance between the declaration and the evidence, are not applicable to the present, but they serve to show the principle on which the English courts have proceeded. The question here is, whether the setting out the attachment of privilege is not mere surplusage, and irrelative to the ground of action. If so, then according to the rule as laid down by Lord Mansfield, and Chief Justice De Grey, it need not be proved. That it is irrelative and mere surplusage is, I think, clear. It is *55immaterial to the plaintiff’s title to a recovery, whether a writ of attachment of privilege was ever sued out by Munro. It is not the ground of his action. The recovery or judgment against him, and against which the defendant below promised to indemnify him, is the gravamen of which he complains. This is sufficiently alleged in the declaration, without reference to the attachment of privilege.(a) • But if it was necessary to have proved that a'writ of attachment of privilege did issue, I think it was sufficiently proved by the record which was given in evidence. It is stated that P. J. Munro, the plaintiff in the suit against Ouland, sued as one of the attorneys of the court, according to the privileges of such attorneys, used and approved, &c. This may be received as sufficient evidence of the writ of attachment of privilege, on the same principle, that Holt, Oh. J. in the.case of Crawley v. Blewett, 12 Mod. 127, *56*admitted the plea-roll to be sufficient proof of the bill, where the party was alleged to have been impleaded by bill.

2. The promise was not to indemnify for the default of another ; but was made to the plaintiff himself, for an act to be done by him, as the servant of the defendant below. It was an original undertaking, and not a collateral promise.

3. The plaintiff was the servant of the defendant, and obliged to obey his lawful commands, and he commanded the plaintiff to enter into the locus in quo, claiming and declaring it to be his own. If this had been true, the entry would have been lawful. The plaintiff relying on the truth of the declaration of the defendant, did enter. The act on his part, was, therefore, lawful, and a good consideration for the promise.(a)

4. There is no ground for the fourth error alleged, for the contract of indemnity was sufficiently proved by the testimony of two witnesses.

5. The defendant below had notiee of the suits brought against the plaintiff by Munro, for when the plaintiff was arrested, he informed the defendant of it, who promised to enter bail for him, and acknowledged his promise to defend the suits, and save the plaintiff harmless. The judgments by default were obtained, in consequence of the refusal of Allaire to put in bail for Ouland, indue season. Under these circumstances, I think the defendant in error did all that could be required of him, as to the defence of the suits, and that it was incumbent on the plaintiff in error to make the defence, if any was necessary.(b)

6. The sixth error alleged is not supported by the fact, as appears from the bill, of exceptions.

7. Any inconsistency as to the dates., is now immaterial, The promise has been proved, according to the truth, to be prior to the time the breach is stated ■; besides, the defect is cured by the verdict.(c) I am, therefore of opinion, that the judgment ought to be affirmed.

*Lansing, Ch. J., Lewis, J. and Benson, J. were of the same opinion.

(a) Mr. Gould in his work on pleading has pointed out in clear and definite terras the distinction between impertinent and immaterial averments. “There is an importaxrt distinction to be observed between immatex'ial and impertinent avermexxts : viz. that the former must, in many cases, be precisely proved; whereas the latter require no proof in any ease. For the purpose of explaining this distinction, it must be premised that an impertinent averment is a statement of matter altogether foreign to the merits of the canse, and which might, therefore, he entirely struck out without injury to the pleading. An immaterial averment (as conti-a-distinguished from an impertinent one; has been variously described ; but not always with sufficient precision. In the case of Bristow v. Wright, Doug. 665, Lord Mansfield, in commenting upon the distinction Between these two species of averments, observes, ‘ The distinction is between that which may be rejected as surplusage, and which might have been stiuch out on motion, and what cannot. Where the declaration contains impertinent matter, foreign to the cause, and which the master, on a reference to him, would strike out, that will he rejected by the court, and need not he proved. But if the very ground of action is mis-stated ; as where you undertake to recite that part of a deed, on which an action is founded, and it is mls-recited; that will be fatal.’ This langixage, though sufficiently descriptive of an impertinent averment, affords rather a particular example than a general definition or description of an immaterial one. The following is therefore submitted as a substantially correct description of the latter: — An immaterial averment is one, alleging, with needless parliculaTt&yo? unnecessary circumstances, what is material and necessary, and which mighty properly have been stated more generally, and without such circumstances'W particulars; or in other words, it is' a statement of unnecessary particulars ip connection with, and as descriptive of what is material.” Gould’s PI. 160, 161, 162. The author then proceeds to illustrate his observations by an accurate and concise review of Bristow v. Wright, after which he further says : “ The same rule, in regard to immaterial averments, was recognized in the case of Savage, q. t. v. Smith, 2 Bl. Rep. 1101, 1104. This was an action of debt against a bailiff, for extorting illegal fees, on a writ of fieri facias. The declaration described the fi.fa. as having been issued, on a judgment recovered in B. R. at a specified term for £51,12, 0, debt, and £6, 10, 0, costs. But'the plaintiff having failed, on the trial, to prove such a judgment, the court held, that admitting it to have been unnecessary for the plaintiff to state any judgment; (id. 1104, and vid. 5 T. R, 498,) that is to say, admitting the statement, in that particular, to have been immaterial, yet being made as descriptive of the foundation of the fi. fa., it was necessary to be proved as made.” Gould’s Pl. 163. “The rule that immaterial averments must be strictly proved, is'however by no means universal, though it appears to have been formerly so understood: The principle of the rale, manifestly embraces ,(it is conceived) no other averments of that class than those of which a variance may lie predicated. And the rule itself is now to be. understood as limited by that principle.” Id. 164, 165. “ The rule then, as limited by the more modern authorities, appears to be, that no immaterial averment requires precise proof, unless the failure of such proof would occasion a variance between the pleading and the proof: or, (in djfEirent language,) strict proof of such averment is not, at this day, necessary, unless the subject of the averment is a record — a written instrument— or (as I conceive) an express contract. Inasmuch as these are in strictness, the only ssbject of varianee (properly so sailed) when the mistalse in the-pleading is in a point not in itself material.” Id. 164. In Cowen & Hill’s Notes to 1 Phill. Ev. 503, note 398, to p. 206, it is observed that, “ The decisions relating to the subject of the foregoing extract, both American and English, will be found to exhibit considerable want of uniformity; and this has probably arisen in some measure, from not attending to the reason of the distinction taken: Bristow v. Wright, and Williams v. Allison, cited in the text.” See the c'ases cited id. notes 401 and 407. “Where the plaintiff declared upon a special contract, alleging that he was indebted to the defendant’s testator in a certain sum secured to the testator by bond and mortgage executed by the plaintiff; and that it was agreed the plaintiff should convey the mortgaged premises to the testator — the latter to discharge the plaintiff from his indebtedness, sell the premises, and after deducting the amount due him, pay the surplus to the plaintiff, and on the trial, it turned out that the bond and mortgage were executed' by the plaintiff and another; the court, in relation to the variance, adopted the rule as stated by Mr. Chitty, I Cbitty’s PI. 295, that every allegation in an inducement which is material, and not impertinent or foreign to the eause, and which cannot be rejected as surplusage, must be proved as alleged. And it is added: ‘ this is particularly true in setting forth wiitten instruments. As this eount is framed, the allegation which respects the existence and cancelling the mortgage, cannot be stricken out as surplusage ; and if not, it should have been truly stated.’ Hess v. Fox, 10 Wend. 436, 437. It has been held, that in an action on a bill or note payable at a particular time and place, if the plaintiff aver specifically that a demand was made at the time and place, he will be bound to prove it. Conn’s adm’r v. Gano's ex’r, 1 Hamm. Rep. 483. The court concede that it is wholly unnecessary to make this averment; but they say, ‘ being made it must be proved ; in an action against the drawer or endorser of a bill, it is not necessary tosíate that the drawee accepted it; but Chitty says, if itbe stated, it must in an action against the drawer, be.proved and they cite Chitty on Bilis, 459. Pease, J. dissenting in the above ease states his views as follows: ‘ The true distinction between an immaterial averment, which it is necessary to prove, and one which it is not, I consider to be this: when the plaintiff avers in his declaration a fact, the converse of which being pleaded or proved by the defendant, would be a defenee to the action, then the averment ought to be proved. But if the fact averred, be every way immaterial — if it form no part of the plaintiff ’s right to recover, and if the converse would constitute no defence to the action, then it would not be only useless to prove it, but would be an unnecessary' waste of time and money, and a trifling with the administration of justice.’ This testis perhaps a true one in the main, but admits of qualification. Instances are of frequent occurrence, where, through the inadvertence of the pleader, an averment has been made of unnecessary particulars, in ‘ connection with and as descriptive of what is material,’ and where a failure to prove such particulars resulted fatally. And’yet, it would be hard to perceive how those particulars can be said to form an essential part of the plaintiff’s right to recover ; or the converse of them to constitute a defence. Where a declaration on a bill of exchange, by the endorsees against the acceptor, alleged that it was endorsed to the plaintiffs, as surviving assignees of A. B., after his bankruptcy; it was held that the plaintiffs were bound to establish both points ; viz. that the bill was endorsed after the bankruptcy of A. B., and to the plaintiffs as surviving assignees, &e.: though if the declaration had been general, in the names of the plaintiffs, ‘ the possession of the bills by them would have done.’ Bernasconi v. The Duke of Argyle, 3 Carr. & Payne, 29.” According to this distinction the omission to prove circumstances alleged not essential to the claim or charge, and which might have been wholly omitted, is not material, provided the circumstances so alleged do not operate by way of description of others which are essential. See 4 Stark. Ev. 1534. Utile per inutile non vitiatur. (3 Rep. 10.) Bro. Max. 82, 83. The collection of cases upon this subject is far too large to be cited in this note. The most important may be found in 1 Phil. Ev. Cow. & Hill’s ed , p. 206, et seq. Cow. & Hill’s Notes to 1 Phil. Ev. 503, et seq. 3 U. S. Digest, by Curtis, tit. Pleading, II. c. pl. 225, 229, tit. Pleading, II. d. 1 Smith Lead. Cas. 329, note to Bristow v. Wright, and see also the note to Hare & Wallace’s ed. 1 Greenleaf Ev. 59, 65, 67, 68, 69, 71, 76. 3 Stark. Ev. 1525, et seq. 1 Chit. Pl. 5th Am. ed. 208, et seq. and cases cited in the notes.

(a) In the case of Coventry v. Barton, 17 Johns. R. 142, it was held that if a consideration be illegal, it will not support an assumpsit As if one request or direct another to do an act which he knows, at the time, will be a trespass, and promise to indemnify him, the promise is void ; but if the party who does the act at the instance or by the command of another does not know, at the time, that he is committing a trespass, the promise to indemnify is valid. As, where the plaintiff, being ordered out by the overseer of highways of work on a certain road, was ordered by the overseer of the highways, and by the direction, also, of the commissioner of highways, to pull down and remove a turnpike gate and fence, erected at the intersection of the road, on which the parties were working, with a turnpike road, supposing it to be a nuisance, and the plaintiff, accordingly, removed the gate and fence, on the promise of the overseer to indemnify him ; this was held to be a valid promise, on which the plaintiff might maintain an action to recover of the defendant an indemnity, for what he had been compelled to pay on a judgment in an action of trespass recovered against him, by the turnpike company whose gate had been'so removed. And in Stone v. Hooker, 9 Cowen, 154, it was held that a promise to indemnify one against a trespass includes an authority to the promisee to employ and indemnify agents; and if he is compelled to pay such agents damages recovered against them for the trespass, he may recover over against his promisor, the same as for damages paid by the promisee directly, to the person trespassed upon; and, where such agents were severally sued by the person trespassed upon, the original promisor having notice, one of them after trial and recovery against another, gave a cognovit in his own suit, and paid, and his promisor paid him ; held, the agent appearing to have acted in good faith, that the original promisee might recover the amount of what he thus paid.

(b) Stone v. Hooker, cited supra, n. a. Trustees of Newburgh v. Galatian 4 Cowen, 340. Mott v. Hicks, 1 id. 513. Hale v. Andrus, 5 id. 225. A special count on a promise to indemnify must allege the plaintiff damnified. Farnsworth v. Nason, Bray. 194. Hide v. Childs, 1 Chip. 230.

(c) See 1 Saund. 238,.n. .1.

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