Boynton v. Robb

41 Ill. 349

• Court: Illinois Supreme Court
• Decided: April 15, 1866
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

The only error we are enabled to discover in this record is this: The judgment described in the declaration is a judgment for the sum of two hundred and fifty-nine T7/„ dollars, recovered by Robb against Whitney. The record offered in evidence shows a judgment in favor of Robb against Whitney for the sum of two hundred and forty-nine X7/F dollars. Though it may be said this was but inducement to the execution of the bond, yet the rule is that every allegation in an inducement which is material, and not impertinent and foreign to the cause, and which cannot be rejected as surplusage, must be proved as alleged. 1 Chitty PI. 295. The recital of this judgment was both pertinent and germane to the cause, and could not be rejected as surplusage. Being so, it should have been truly stated, and, not having been so stated and proved, the plea of nul tiel record being pleaded, the variance is fatal, and the judgment must be reversed and the cause remanded.

Judgment reversed.