delivered the opinion of the court.

This is an action for selling the horse of the plaintiff contrary to the provisions of the act of 1833, ch. 80, sec. 5. The declaration does not alledge that plaintiff is the head of a family; and the court charged, that the jury would not regard any proof they might have heard on that point in the absence of any such allegation. This is assigned for error. If the declaration be necessary to maintain the action, its omission in the declaration cannot be supplied by the proof. If it was not necessary, no injury was done by the charge. But we think it was necessary. It was incumbent on the plaintiff in such a case, to make *57it appear in his declaration and proof, that his condition and attitude placed him within the provisions of the act of assembly. If he were not the head of a family, the act of assembly had nothing to do with him. Aside from this point, the proof in the bill of exceptions shows that the plaintiff was not entitled to a verdict.

Affirm the judgment.