4 Ill. 25 | Ill. | 1841
delivered the opinion of the Court:
The record in this cause shows that Stevens Stebbins brought his action of petition and summons in the Hancock Circuit Court, against Moses Stevens. The petition is in the usual form, to which the defendant filed the plea of nil debet.
On the trial, the plaintiff offered in evidence a note corresponding precisely with the note set out in the petition, with this exception ; the note described in the petition is made payable to Steven Stebbins, and the one offered in evidence is payable to Stevens Stebbins.
The defendant objected to the reading of said note in evidence, upon the ground of variance, and the Court overruled the objection.
The defendant below brings the cause into this Court, and assigns for error the decision of the Court below in permitting said note to be read in evidence.
The law does not treat every slight and trivial variance, such as the omission or addition of a letter, as fatal. The variance should be a substantial and material one, such as would render the instrument offered in evidence a different and distinct instrument from the one described in the petition, to authorize the Court to exclude it from the jury on the ground of variance. The rule- of idem sonans, when strictly adhered to, is considered too rigid, and has been much relaxed in modern practice.
Even in a criminal case, the Supreme Court of Indiana has decided that “ there is not a fatal variance between the name Beck-with, in a warrant named in the indictment, and Beckworth in that produced on the trial.”
In the case of Tumble et al. v. the State,
Judgment affirmed with costs.
Judgment affirmed.
4 Blaekf. 171.
4 Blaekf. 437.
4 Bac. Abr. “ Misnomer.'
Vide 7 Am. Com. Law 51.