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duced was that

"note, subscribed by them under the name, style, title SHEERY and firm of Robert B. Jameson, bearing date the "same day and year, and then and there delivered the MANDE"said note to the Plaintiff, and by the said note, did, VILLE. ❝ under their firm aforesaid, promise to pay to the said "Plaintiff, or to his order, six hundred and four dollars the note pro"and ninety one cents for value received, negotiable at which was in"the bank of Alexandria, by reason whereof and by tended to be "virtue of the law in such cases made and provided, described in the "the said Defendants became liable to pay to the said "Plaintiff the said sum contained in the said note ac❝cording to the tenor and effect of said note,” and being "so liable, &c.

Which note the Court below refused to suffer the Plaintiff to read in evidence to the jury, because it varied from that set forth in the declaration, to this refusal the Plaintiff excepted. The Plaintiff then contended before the jury that the existence, the execution, the amount, and the validity of the note set out in the declaration, were determined by the judgment of the Court upon the demurrer, and claimed damages to the full amount of that note without producing it. But the Court, upon the motion of the Defendant, instructed the jury that it was necessary for the Plaintiff to produce the note, or sufficiently account for its non-production, otherwise the jury may and ought to presume that the note has been paid, or has been passed away by the Plaintiff to a third person for value received, and in such case' ought to assess only nominal damages. To this instruction the Plaintiff also excepted.

The Plaintiff, then, in order to rebut the presumption that the note mentioned in the declaration had been paid or passed away to a third person for a valuable consideration, produced and offered to show to the Court and jury the record and judgment on the Defendant's first and second pleas, which had been adjudged bad upon demurrer, and also the same note in the said pleas mentioned to have been the foundation of the suit and judgment set forth in the said pleas-(which was a separate suit and judgment against R. B. Jameson upon the same note as the sole note of Jameson, and which judgment Mandeville had pleaded in bar to the present action, averring the note to be the same but which VOL. VII.

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declaration.

SHEEHY plea was by this Court adjudged bad on demurrer,) and v. also the fieri facias issued against Jameson upon that MANDE- judgment with the return of nulla bona; and also offered VILLE. to prove by a competent witness that the promissory

note produced to the jury, and in the said record of the suit against Jameson mentioned, is the same promissory note upon which the present declaration was founded, and the same which was intended to have been therein set out and described, and that the omission to state in the declaration the time in which the said note was originally made payable, arose from a mere oversight of the attorney who drew the declaration, and that there was no other note ever intended to have been described in that declaration or answering the description therein contained, but the Court rejected the whole of the said evidence as incompetent; to which the Plaintiff also excepted.

The jury assessed the Plaintiff's damages, and judgment was rendered accordingly at one cent only; whereupon he brought his writ of error.

E. I. LEE, for the Plaintiff in error.

It being the prime object of Courts to do justice, the Court will decide in favor of the Plaintiff if the justice of the case be with him, unless there be some technical rule so strong as to leave the Court no ground in his favor.

1. The first question is whether there be any variance between the note declared upon, and that produced before the jury on the execution of the writ of enquiry.

What is, in law, a variance? The rule is that the allegata and probata must correspond in all material points.

The note produced was payable "sixty days after date." The declaration does not state when it was payable. There is therefore no repugnance, no inconsistency, between them. To have made it a variance, the declaration should have expressly averred that the note was payable on demand. The omission to state a fact, without a direct averment of a different fact, is not a variance. 1. Bos. and Pul. 225.

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The declaration leaves it uncertain when the note SHEEHY was payable; but the note itself renders that certain which had been left uncertain on the face of the declara- MANDE tion.

An averment is a positive statement: and is used in opposition to argument, or inference. Cowp. 683, 684.

From the statement in the declaration, it is only matter of inference that the note was payable on demand.. But there is no variance between the assumpsit laid, and the note offered. The statement of the note in the declaration is only inducement ;-but in the assumpsit it does not say when the money was to be paid.

In setting forth the matter of inducement, exact certainty is not required. 5. Com. Dig. 35. C. 30.

The declaration states what, in law, is considered as a parol agreement-and the action is a general and not a special indebitatus assumpsit. Under the count of general indebitatus assumpsit, any evidence substantially corresponding with the cause of action set forth in the declaration, may be given in evidence.

There is no variance whenever the time or date is uncertainly set forth or omitted. It may be supplied by pleading, or by finding, and therefore in order to render, by finding, that certain which is omitted, or which does not correspond with the statement in the narration, evidence must be heard. Cromwell v. Grumsden, 1. Lord Ray, 335. If a patent be pleaded without a date, and the one produced has a date, it is not a variance. 5. Com. Dig. 395. Every thing is form, without which the right of action appears to the Court. Hob. 233.—5. Com. Dig. 139. This suit was brought after the note became due, therefore the time of payment was then not material to the Plaintiff's right of action. The promise, for a valuable consideration gives the right of action. The time of payment was not material and could not have been put in issue. 5. Com. Dig. 27.

The omission is cured by the statute of jeofails. Virg. Laws. 112. sect. 26.

If after verdict the Plaintiff could not be required to

VILLE.

SHEEHY show such a note as is set forth in the declaration—sʊ upon a judgment by confession, nil dicit, or non sum inMANDE- formatus, he is not bound to shew such a note.

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2. If there be a variance, it is not a material one. 1. Wash. 72, Evans v. Smith. In the bond, in that case, the obligor was stated to be "of the county of Essex," which part of the description was omitted in the declaration, and it was held to be an immaterial variance.

It is only necessary to prove substantially the cause of action declared upon. 1. Wash. 199, M'Williams v. Willis. In that case the agreement was made by Willis, "as treasurer of the jockey-club." The declaration omitted this description, and it was holden no variance. The reason was that he was equally liable whether he contracted as treasurer or not. So in this case the Defendant was equally liable whether the note was payable in sixty days or on demand, the sixty days having expired before the suit was brought.

In the case of Peter v. Cocke, 1 Wash. 257, the suit was upon a bond given to U. P. "of the county of Surrey, on account of Messrs. G. and P. merchants in Glasgow." The declaration stated the bond to be given to W. P., without stating on whose account; yet it was holden no

variance.

In the case of Wroe v. Washington and others, 1 Wash. 357, the declaration stated an agreement by which the Appellant was to rent and furnish a house in Leedstown, and entertain one of the Appellees, two of their storekeepers and a servant with meat and drink for one year, for which the Appellees agreed to pay him for the three first 251. each, and for the last 81.

The evidence offered did not show any agreement respecting the renting of a house at Leedstown; but it showed an agreement to pay 831. in gross. Held no variance.

The date of a deed is not of its substance. 2 Co. 5. (a) Goddard's case. Upon the same principle the time of payment is not of the substance of a contract.

A variance between the date of the bond declared

upon, and that cited in the award, is not fatal, if they SHEEHY agree in every other particular. 3 Call. Ross v. Overton. 3 Hen. and Mun. 237, Lyons v. Gregory.

In the case of Baptiste v. Cobbold, 1 Bos. and Pul. 7, the contract stated in the declaration was for 52 10 0 for rum-money; the evidence was a note by which the Defendant agreed to allow the Plaintiff the above sum; together with a pint of rum per day-and held no vari

ance.

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The grounds upon which the law requires that the probata should agree with the allegata, are 1. To apprize the Defendant of the nature of the charge; and, 2. To enable him, by a reference to the record itself, to plead the judgment in bar of another action for the same cause. The declaration in this case did apprize the Defendant of the nature of the charge; for he peared and pleaded to the action, and by his plea identified the note. The second object is obtained by the record, by which it appears that the note offered in evidence is that which was declared upon. If this note had been received in evidence, it would have been filed and formed a part of the proceedings which the clerk is bound, by the statute of Virginia, to retain.

If the reason of the rule requiring the allegata and probata to correspond, is attained in this case, and if there was no danger of a second suit being maintained upon the same cause of action against the Defendant, the variance cannot be material.

3. The Plaintiff was not bound to produce, upon the execution of the writ of enquiry, the note or the evidence of the debt.

Where there is judgment by default in an action upon the case on a promissory note, the court will (without a jury) direct the clerk to ascertain the damages. 1 H. Bl. 252, 529, 541. These cases were decided upon the ground that the amount claimed in the declaration is admitted in the same manner as if the action was debt; because a sum certain is demanded, and it is not like the case where the cause of action sounds in damages, and not in contract, ascertaining on its face the amount plaimed.

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