Hawkins' v. Berkley

1 Va. 260

• Court: Court of Appeals of Virginia
• Decided: October 15, 1793
• Status: Published

Opinion

Lyons, J.

delivered the opinion of the Court.

The variance between the condition of the bond and the breach assigned, is not material. Agreements are always to be construed according to the evident intent of the parties, appearing from the deed itself, without a rigid adherence to the letter. This rule is laid down in the case of Freshwater v. Eaton , Str. 49, and is certainly a correct one. It is plain, that the intention in this case was to vest in the collector a power to bring suits, and that the exercise of such a power was necessarily involved in the under - taking on his part.

The case of Bache et al v. Proctor, Dougl. 382, Is stronger than the present. The condition oí the bond was, to render a fair, just, and perfect account, in writing, of all sums received. It was deter - mined that the obligor was guilty of a breach of the condition, by neglecting to pay over such sums. Besides, the objection in this case comes after a verdict. The defendant, if he had considered the varianee material, might have demurred.

Judgment affirmed.

(1)

Buster's ex. v. Wallace. 4 Hen. & Munf. 88