Repsher v. Shane

3 Yeates 575

Opinion

The court declared their opinion, that though in setting out a record, deed or written contract, which is the foundation of the action, the party must state it correctly, and a small variance is fatal, because the allegata et probata must agree; yet, in the present instance, the judgment in Belmont county being set out only by way of inducement, and not as the ground of the suit, the variance in the declaration from the record given in evidence is wholly immaterial; and therefore the plaintiff is entitled to judgment.