Vail v. Smith

4 Cow. 71

• Court: New York Supreme Court
• Decided: February 15, 1825
• Status: Published

Opinion

[Woodworth, J.

I believe we have always considered an .exemplification sufficient.]

(a)

„ Hamilton. There is a variance. The declaration sets forth a judgment of October term, 1813. This record is continued to October term, 1814.

Payn, in reply. The variance evidently arises from a mere mistake of the attorney in making up the record. He has inadvertently drawn the placita as of the term at which judgment was rendered, instead of the term at which= the writ was returnable; and the continuance being to October next, produces the variance. The declaration is of. the term at which judgment was actually rendered, as appears by the signing in the margin. The day is altogether immaterial, as in other cases. (Brooks v. Bemiss, 8 John. Rep. 455.) But if otherwise, the Court will allow us to withdraw the record, move the Common Pleas to amend, and bring on the cause at another day.

Curia.

The text of the record must be taken as evidence of the time when judgment was rendered ; and cannot be corrected by the note in the margin of the day when it was signed. In this view, there is a fatal variance between the declaration and the evidence ;(b) but the plaintiff may withdraw his record, and move the Common Pleas to amend.

Rule accordingly.

Vid. Ladd v. Blunt, 4 Mass. Rep. 402, acc.

The question of variance in sotting forth a record, or judicial proceeding, seems to depend on whether it be set' forth as matter of description, or with a prout patet, &c. or the judgment or proceeding be barely mentioned in pleading as having taken place on a particular day, generally, or after a videlicit, without any thing more specific. In the latter case, the day is more form, as it would be in an action for goods sold and delivered. (Vid. Purcell v. Macnamara, 9 East, 157, and the cases there cited.) This last case was again considered and confirmed in Philips v. Sham, (4 Barnw. & Aid. 477,) in an action of assumpsit on a contract to indemnify against becoming special bail. The declaration was, that judgment was recovered in the suit wherein the plaintiff became bail, in Michaelmas term, 58 Geo. 3 ; whereas the record was Hilary term, 58 Geo. 3; and held no variance.