State ex rel. Reynolds v. Reynolds

1 Del. Cas. 398

• Court: Delaware Court of Common Pleas
• Decided: July 15, 1796
• Status: Published

Opinion

Upon the trial before the Court, MiUer objected: first, the scirefacias contains the words “their several and respective shares of' the valuation money of the landed estate of the said Richard': Reynolds, deceased,” which words are not in the recognizance; secondly, it is the joint and several recognizance of H. Reynolds, and H. Moleston, and the scire facias is against defendant solely. These variances he insisted were fatal upon the plea of nul tielrecord, and he cited Doug. 93 and 4 Term 558.

Bassett, C. J.

A scire facias upon a recognizance is in nature of a declaration. The scire facias need not follow the words of' the recognizance. It is sufficient if it is according to its legal effect and import. The first objection regards words which may be-considered as surplusage and therefore may be rejected. And as. to the second, the recognizance being several, scire facias against, one recognizor is good, and so is the case in [2] Esp.N.P. 743.

Judgment for plaintiff. Fisher and Bayard for plaintiff.

Johns, J.

A variance which is not substantial cannot be fatal. If the record is in effect the same with the scire facias, there is no variance. A variance must be in the sense in order to be material.