case Eardley against TURNOCK Michaelmas term James roll a variance as to  damage between the original writ and the declaration be aid after verdict by  Elizabeth c ante     march term Rep c b Cowp in a action for disturbance of  common a variance between the verdict and the prescription be not fatal ante  Com dig Bac ab Cowp dougl to Rep plaintiff shall be in pity for those issue  that be find against he roll ab cro car dyer   more cro Elizabeth Com dig b r  h error of a judgement in the common plea the error assign be because the writ  original in the common plea which be remove hither be that Eardley be seize in  fee of a message and sixty acre of land sixty acre of meadow and eighty acre  of pasture in Heiton and that he and all his ancestor have have common  appurtenant in two hundred acre of waste and that the defendant have enclose  three acre thereof and disturb he of his common to the plaintiff damage of  forty pound the declaration suppose it to the plaintiff damage of one hundred  pound so for this variance betwixt the original and the declaration it be  object that the plaintiff ought not to recover but shall be bar for otherwise  it be allege the king will be deceive in his fine and it be not a trial  without a original but it be a ill original croak throw but all the court hold  although it have be a good exception in the common plea before the plea plead  for the variance yet now be after verdict upon not guilty plead the jury find  but twelvepence damage it be well enough and not assignable for error but if  the verdict have find more damage than be comprise in the writ and less than  be in the declaration yet it have be ill and the judgement erroneous for there  be not any writ to warrant it but when the damage be less than they be in the  writ or count it be otherwise wherefore it be hold to be no error at the  commonlaw especial now upon the statute of Elizabeth the variance not be in  matter of substance or in point of the judgement wherefore it be hold by all  the justice to be well enough a second error assign be that the declaration  suppose common to sixty acre of land sixty acre meadow and eighty acre pasture  and the verdict find that he have common to a message and ninety acre of land  meadow and pasture croak James er p thereto appertain and for the residue that  he have not common so that they have not find such common whereof the  plaintiff count no more likewise do they show the quantity of every the acre  of the land meadow and pasture respective but confuse to ninety acre of land  meadow and pasture wherefore this be not any such common as the plaintiff  declare say non allocatur for the common be but the inducement to the action  and the substance be the enclosure which do the tort and if he have common to  more or less land it have not be material in this action or upon this issue  but if it have be a special issue whether he have common for so much land it  may peradventure have be otherwise wherefore c a three error assign be because  the judgement be quod defendens sit in pity and also the plaintiff in pity pro  falsely warcry c for that land which be find against he whereas he ought not  to have be in pity for it be not material as in a action for word when part of  they be find for the plaintiff that they be actionable and part find against  he the plaintiff shall not be in pity because it be not material vide Edward  dyer Doderidge and chamberlain hold it to be no error for inasmuch as he  declare false although he have cause to recover he shall be in pity because  his complaint be false in some part fide   a Beechers case but lea chief  justice doubt thereof wherefore he will advice but afterward in easter term  James it be move again the first day of the term and notwithstanding any of  these exception the judgement be affirm vide post