Kemp v. M'Guigin

1 Tapp. Rep. 50

• Court: Stark County Court of Common Pleas
• Decided: June 15, 1816
• Status: Published

Opinion

President.

The plaintiff, in his declaration, undertakes to describe a penal bond, as one whereby the defendants acknowledge themselves to be held and firmly bound unto the said D. K. “ in,” &c. “to be paid the said D. K. when” &c. the bond produced on oyer, contains no acknowledgement to D. K. and no stipulation to whom the penalty is to be paid. The rule of law is, that any variance in setting out a written contract, will be fatal Whether we consider the words “ unto the said D. K.” erased, as forming a part of the declaration, (as the plaintiff wishes them to be taken) or, with the defendant, consider them as erased and stricken out, will make no difference; for still the contract set forth in this declaration, and the contract shewn, differ materially from each other. I think, therefore, without going into the other points raised by this demurrer, that it must be sustained.

That D. K. might recover on this bond, I have no doubt; but his declaration must show a title to recover. That his name was intended to be inserted in the penal part of the bond, is very probable; but, being ommitted, it cannot be safely declared on as though it had been inserted; proper averments of its having been made, and delivered to him, would supply the defect; as it is, he does not appear to have any right to sue for the penalty; his right, in equity, to a specific performance of the condition, in another matter, not here to be considered.

Demurrer sustained. — Judgment for defendant.