| Vt. | Dec 15, 1854
The opinion of the court was delivered by
I. In regard to the question of jurisdiction, we do not see how, by any fair construction of the declaration, it can be said to appear, that the sum claimed to be due is less than $100. The judgment is alleged to have been rendered for $3188.94, September term, 1851, and that there were payments of $2500, December 15th, 1851, and $635.92, February 23d; 1852, with the distinct allegation, that defendants owe plaintiff $150 and unjustly detain the same from him, and that an action hath accrued to plaintiflj to recover the balance due on said judgment, which by computation is obviously more than $100. The ad damnum is a sufficient allegation of damage, to entitle plaintiff to interest, which we presume the writ contains, although not copied. Indeed, the payments should strictly, first be applied, to extinguish the interest, already accrued, at the time of the several payments, and that will leave due of the debt, on the strictest construction of the declaration, more than $100, at the date of the last payment.
II. The question of variance is new, and has certainly been argued with a good degree of plausibility, and is supported by some of the cases cited. But a majority of the court do not regard it as amounting to any variance, according to the general law upon that subject.
1. It is conceded, as it must be, that the judgment created a debt to the plaintiff in his private capacity, upon which he might sue, if he had ceased to be administrator, or upon which his executor or administrator might sue. This judgment then became a debt, due and owing from defendants to plaintiff.
2. In declaring upon it, the plaintiff may describe it with more or less particularity. For instance he might state the original cause of action, as was attempted in Edwards v. Lucas, 5 B. & C. 339. (11 E. Com. Law 250.) and in Baynes v. Forrest, 2 Strange, 892. And if this is attempted it must be done truly, as is held in both these cases. But we suppose no lawyer would be prepared to argue that it was necessary to allege the cause of action, upon which a judgment was rendered. If the judgment had been upon a promisory note the plaintiff might even go to the particularity of describing the date and amount of the note, but he need not do it. But if the note be recited in the judgment as it may be, and he attempts to describe it and fails, the variance is fatal. There is no end to illustrations of this rule.
If a promisory note be described as payable to the plaintiff or order, and on production, the words, or order, do not appear in the note, the variance is fatal, but if it be described as a promise to pay plaintiff, there is no variance, although it contain the words, or order, 1 Smith’s L. C. 642 & note. So too, if the pleader describe a note, as expressed to be for value received, or as bearing a particular date, and the note on production does not contain these words or the date, the variance is fatal. This is the effect of the case of Saxton v. Johnson, 10 Johns. 418" court="N.Y. Sup. Ct." date_filed="1813-10-15" href="https://app.midpage.ai/document/saxton-v-johnson-5473292?utm_source=webapp" opinion_id="5473292">10 Johns. 418, and is no doubt sound law. But the case of Rossiter v. Marsh, 4 Conn. 196" court="Conn." date_filed="1822-06-15" href="https://app.midpage.ai/document/rossiter-v-marsh-6573630?utm_source=webapp" opinion_id="6573630">4 Conn. 196, which holds that if this allegation be omitted in the declaration, and the note on production, contain them, it is fatal, is certainly
This distinction between a substantial and a descriptive averment, and between the redundancy of description, and of proof has always been maintained, or been attempted to be, since the decision in Bristow v. Wright, Doug. 6 fib; and applies with great force to the present case. The plaintiff might here have described himself, in his writ, as administrator, or have averred in the declaration, that he recovered the judgment in that capacity, or he might altogether omit these averments, as the capacity in which the judgment was recovered, no more entered into the qualities, or the necessary description of the substance of the judgment, than did the original cause of action, both which might be omitted, but if alledged must be done truly. As was said by Ld. Mansfield, in Bristow v. Wright, “ He need not set forth the material parts, in words and letters.” “ It will be sufficient to state the substance and legal effect.” It certainly was not necessary to state this part of the case. “ But since it has been alleged, it was necessary to prove it.”
The English statutes requiring the courts now to allow amendments of all variances, “not material to the merits of the case,” in any stage of the trial, very few decisions have been made there since the case of Bristow v. Wright, except as to what amendments are material to the merits of the case; and we certainly do not feel called upon to go beyond the rule laid down in Bristow v. Wright, which has been very seriously questioned, in England, and which led to the English statutes, which have pretty much done away with questions of variance there, the counsel not choosing to litigate such matters, as may be evaded, at slight expense. And unless we do go beyond the case of Bristow v. Wright, we could not regard this defect of allegation, as any variance.
A defect of allegation is never a variance, unless the part omitted is a qualification of the averment made, as where a contract is in the alternative, and is alleged, as absolute, or where the particular omitted is essential to the plaintiff’s cause of action. It is admitted not to be essential to the plaintiff’s cause of action, that he should sue as administrator in this case. And I do not understand that it is claimed, that the judgment creates any different obliga
In New York, without any statute, except as to writings and records, in describing parol or oral contracts, it was liolden long ago that no variance is to be regarded' as fatal, unless it is calculated to mislead the defendant, and their courts have in terms overruled the principle laid down in Bristow v. Wright, as being too stringent. Boston Timber Co. v. Persons et al., 2 Hill, 126.
The case from Massachusetts and that from Connecticut, where it was held a variance not to allege, that the judgment was recovered, while the party was called “Jr,” is strangely nice, but not more so than some of the English cases, in regard to deeds, and which they are attempted to be based upon. These cases in regard to “Jr.” were virtually overruled, certainly, by this court, more than twenty years ago, in Brainard v. Stilphin, Jr., 6 Vt 9 ; where Mattocks, J., makes some sensible criticisms, and where it was held that the court, on inspection, would take notice that Cornelius Stilphin, in the body of a warrant, is the identieal person with Cornelius Stilphin, Jr., who signs the same, as captain, the amercement by Stilphin, and issuing the warrant by Stilphin, Jr., being at the same place, and within a few days of each other, thus rendering the presumption of identity, more difficult. On any fair construction of these cases, if the party had, in the record been described, as residing in a different town from that set forth in the writ, it would require an averment of identity, or of removal, wbjch would be far more nice, than the rules of construction, as to pleas in abatement, or any class of pleas, least favored by courts. I am always content to resort to my Lord Coke’s astuteness, to preserve, but not so, for purposes of destruction.
In King v. Pippett, 1 Term. 240, it is said to have been decided, that in an indictment for perjury, committed in swearing in a chan
Upon the principle claimed, in Rossiter v. Marsh, a promisory note whose date was not set forth, if it contained one, could not be given in evidence, on the ground of variance, and by parity of reasoning, no recovery could be had upon it, under the general counts. It is scarcely possible, in my judgment, to conceive a more absurd decision in regard to the law of variance. It is, if possible more strange and unaccountable, than those in regard to “Jr.” The English reports, seldom, if ever, contain any such absurd decisions. But I recollect one, recently made there, in regard to setting forth the name of the party, by initial letters, and another where Arabic numerals were used in a declaration, in both of which cases, the declaration was held fatally defective. A similar decision was made in this state in regard to the $ in pleading, but that rule does not extend to contracts. There is no end to absurd refinements, if one is in the mood.
Judgment affirmed.