Pearsall v. Phelps

COLLIER, C. J. — A distinction, it is' said, is established betwéen allegations of matter of substance, aind allegations of matter of description. The former, may be proved substantially; the latter, must be proved with great exactness. Pear-cell v. Macnamara, 9 Ests. 157; Phillips v. Shaw, 4 B. & A. Rep. 435; Walters v. Mace, 2 B. & A. Rep. 758, ’9,1 Chitty’s Plead. 304. That is, it is sufficient to establish an allegation of’ matter of substance by showing a state of facts, the meaning, and legal effect of which, is in harmony with the matter alleged. But if a party undertakes to set forth a written instrument in hmc verba, his averments and proof, must correspond most- strictly, and if in the recital, he varies in a word or letter, so as thereby to create a'different word, it is fatal. Sheechy v. Mandeville, 7 Oranch’s Rep. 208‘, 217;' Commonwealth v.'Stow,.! Mass. Rep; 54; The State v. Coffey, 2 Mur-phey’s [527] Rep. 321. If, however, tfia'insfrument is merely described-by its substance and effect;,there ¡will be no variance,., ifthé^roof and the allegations agree in all essential particulars^* Thus, in Page v. Woods, 9. Johns. Rep. 82, which was an action against a sheriff for an- escape, the declaration alleged a judgment, recovered in the-Octet, of Common Pleas, held at. Salem, in Washington county;ijp|hé .record produced, the place -in which the Court was. holden, did not appear; this, it was.^hfld, was not a material variance,, as the law had prescribed the place where the Court Should be holden. But .where^ in a plea of justification,iait-execution issued by a Justice'of the Peace, was described :a¡¿ returnable in ninety days, when it was in fact, returnable in.sjjty days, the.variance was con&icíered fatal: Toof v. Bentley, 5 Wend. Rep. 276. And a similar conclusion was attained, whe'fe in an action for maliciously bringing a civil suit and 'demanding excessive bail, the plaintiff’s declaration alleged,' that'the writ upon which he was held to bail, was returnable on the first Monday of December, 1809, whereas it . was;in truth, returnable on the firsf Monday in March: Munns v. Dupont, 3 Wash. C. C. Rep, 31. So in an action against-the Sheriff on the statute, 8 Ann. 14, for taking goods off thg .premises, without paying rent; the declaration stated, that “ by virtue of, and under pre-tence of a certain writ, of our said lord 'the King, before the King, himself, before that time,’sued .out;‘the defendant took,” &c.-:it was held, that a writ issued-from the Common Pleas, did not sustain the averment; Sheldon v. Whitaker, Ry. and Mood, Rep. 366; Impey v. Taylor, M. & S. Rep. 166. Where debt was brought upon ..a decree in chancery, for £860 — 12,—1, and the decree was fpr that sum, with interest, from a certain day, to the day of the' rendition of the decree, the. variance was held fatal: Thompson v. Jameson, 1 Cranch’s Rep. 282. See De Kentland v. Somers, 2 Root’s Rep. 437; Dillingham v. United States, 2 Wash. C. C. Rep. 422. In conclusion, upon this point/it may be well to remark, that the general doctrine of vai-iance’is very similar, whether applied to a record, specially, of .’other. inferior grade of written evidence; and it may be laid "down ás a general proposition, sustained by most of the decisions, that when the variance does not change the nature of the- vyriting, so as to render [528] the one set out, a'different instrument in legal 'contemplation from that offered in evidence, it will not be regarded fatal to ‘ the action or defence: Ferguson v. Harwood, 7 Cranch’s Rep. 408, 414; Silver v. Kendrick, 2 New Hamp. Rep. 160; The Commissioners, &c. v. Muse, 1 Const. Rep. So. Caro. 465, 3 Phil. Ev. C. & H’s Notes, 518 to 527. We have thought it proper to take this brief view of the law of variance, for the purpose of ascertaining principles by which we might be guided to a correct conclusion in the case before us; esteeming it safer to rest our judgment upon the approved decisions of other Courts, than to rely upon our own unassisted reasoning. In the case at bar, it ig insisted, that .the exemplification offered in evidence, does not correspond with the declaration. The allegation describes a judgment, recovered at.-, in the county of Richmond, in the State of Néw York, by and before the Supreme' Court of Judicature for said county and State. The judgment produced, appears to have been render ed by the Supreme Court of Judicature of the people of the State of New 'York, at the city of Albany; We must look alone to the exemplification, for the purpose of ascertaining in what Court, the judgment authenticated was rendered ; and as a designation of the Court alleged in the declaration, is materially different from that described in the transcript adduced at the trial, we cannot know, that though differently designated, there is in fact but one tribunal. There may be a Supreme Court of Judicature, holden in the county of Richmond, and the natural inference, from the declaration is, that the judgment described, was rendered there; while that produced, appears to have been rendered in the Court holden at Albany. We cannot intend that every thing stated in relation to the county. of'Richmond, is immaterial, nor are we permitted to reject it as surplusage, for it must be regarded as descriptive of the judgment, and the evidence being defective in this' respect, we think it should not have been received by the Circuit Court. We infer frota the exemplification, that it is the practice in New York, to make up the, pleadings in the Supreme Court, and send the cause for trial to the county in which the venue is laid,’ and after the issue ig disposed of, to return the cause, wi'th the proper indorsement, that the Supreme' Court may [529] render judgment. So that in point of fact,” as well as law, the. judgment is- the act of the Supreme Court, and should be declared on as such. The consequence is, the judgment of the Circuit Court is reversed, and the cause remanded., - ■