George W. Hight, Plff. vs. Jacob White, Deft. in error

George W. Hight, Plff. vs. Jacob White, Deft. in error. This Court would never disturb a judgment on account of an error clearly in faror of the party seeking a reversal. The slightest variance in any essential portion of the description of a written instrument, or of a judgment, nas always been held fatal, unless it should conclusively appear thatthe mistake could not operate prejudicially to the party wishing to take advantage of it. Action of debt on a judgment from Illinois. Plea nul tiel record, and issue to the court. Judgment was given for the plaintiff below, who is the dft. in error, in tha District Court of Des Moines County at the February term 1840: and exceptions taken for alleged variance in this: the declaration sets out a judgment for $834,41 “ adjudged to plff. as well for the non performance of certain promises and undertakings, as for his costs and charges,” &c., and the record of the judgment produced in evidence under said declaration is for $834,41 “ besides costs.'” D. Borer and Henry W. Starr for plff. in error. Grimes and Bkowning for dft. For the plaintiff Where the original judgment was for $2500, and the scire facias to revive recited a judgment for $918 — and judgment of'revivor was.taken &c., it was error. See Ohio condensed Reports, Wolf vs. Roundsford 841. A trivial variance is sufficient to vitiate in setting out a written instrument. See 1 Ch. Plead. 304 — 1 T. R. 240 — Snell, Stagg & Co. Vs. Moses £r sons, 1 Johns. Rep. 96 to 105 — Cook vs. Grayham 3d Cranch 229 — 1 Cond. 508. A contract to build a ship is not sustained by evidence of a contract to finish a ship partly built. Smith vs. Barber 3 Bay 312. Where the declaration charges an absolute promise, proof of a conditional one will not answer — the variance is fatal. 4 Wash. C. C. Rep. 97. Where a declaration charged that a civil action was brought, in which the writ was returnable the 1st Monday in Dec. 1809, and th.e record produced showed a writ returnable 1st Monday in March 1809, the variance is fatal. Mums vs. Bupont el al. 2 Wash. C. C Rep. 482.. In debt on recognizance where the narration sets forth a recognizance to appear and answer a charge for beating one, and the recognizance produced be to appear and answer a charge for beating one, of which he died, the .variance is fatal. Biilingham vs. United Slates, 2 Wash. C. C. R. 422. An aetion on a decree for a sum eertain, cannot be supported by evidence of a decree for such sum with interest. Thompson vs. Jameson,. 1 Cranch 282 — 1 Cond. 311. The contract or writing given .in evidence must correspond with that stated in the declaration. If recited it must be recited truly: and if declared on according to its legal effect, that effect must be truly stated. Sheeby vs. Mandé-ville 7 Cranch 208 — 2 Cond. R. 476 —-Ferguson vs. Howard 7 Cranch 408 — Bing-ham et al. vs. Bichee 5 Taun. 814. — Tarburt 1or Taburt isa fatal variance. 1 Eng. Com. Law Rep. 276. Lands in the parish of B. & M. not answered by a deed for lands in the parishes of B. & M. Morgan vs. Edwards, 6 Taun. 394 — 1 Eng. Com. Law R. 423. A declaration describing a judgment as rendered on the 23d October is not supported by a transcript of a judgment rendered on 19t/¿ October. Wright's Cond. P. The Silver Lake Bank vs.'Jl. & 5. E. Hardin, 430. If a Judgmentis declared on as for the amount of the judgment, and is silent as to costs, it. is no variance if the transcript, show a judgment also for costs, but a judgment for $198,40 and l2i cents costs cannot go in evidence under a count describing a judgment for $198,40 and 47£ cents costs. Wrights Ohio Rep. 428 Jldairs admr. vs. Rogers admr. For the Defendant. Grimes. The variance is not material. The case cited in Johns, does not apply. The case in Wash. R. is not like this. As to what is a material vari-«nee the law isfoundin Story PL 336 — 3 Mor. 41 — 8 Johns. R. 455 — Page vs. Woods, 9 Johns. 82— Bissell vs. Kip, 5 Johns. 89. Browning. There is 90 variance. The judgment is declared on as to its legal effect. The costs follow the judgment, but the judgmént is not for .any specific sum as costs. But admitting there is a variance, is it such as the pHT. can take advantage of. Where the error assigned is such as is no detriment to the plaintiff, he cannot take advantage of it. Cond. Ohio Rep. 386. Rorer, in reply. The case cited by the defendant is silent as to costs. Not so this case, whieh declares that the judgment was as well for damages as costs. The judgment is specific for damages and costs. Costs are not incident to judgment. The position that plaintiff cannot bring error for an error in his favor that is no detriment to him, cannot be sustained. [MAJORITY — Williams, J.] Bv the Court Williams, J. This was an action of debt brought upon a judgment obtained by the defendant against the plaintiff in error in the Circuit Court of Adams county, in the State of Illinois. The-declaration in the Court below sets forth the amount of the said judgment tobe $834 41, ad-judgedto the plaintiff below, ‘for his damages which he had sustained as well by reason of the non-performanoe by the said defendant of certain promises and undertakings entered into by the said defendant to .the said plaintiff before the sitting of said Court, as for his costs aud charges by him, the said plaintiff, in said suit expended.” The record produced on the trial showed a judgment for $834 41 damages besides his costs. ' This variance was objepted to on the trial, but the Judge overruled the objection, and judgment was rendered for the plaintiff'below; to reverse which the cause has been brought into this Court by a writ of error. On the part of the defendant, in error, it is contended that the variance objected to is not such as to prove fatal on the trial — that the effect of it was merely to diminish the amount of the judgment which would otherwise have been rendered against the defendant below, and that it was therefore wholly for his advantage. If these positions are all tenable, the judgment below must be affirmed:- for this Court would never disturb such a judgment on account of an error clearly in favor of the party seeking a reversal. So far as concerns the present suit merely, there is no doubt but the variance objected to operated beneficially to the defendant below. The plaintiff claimed $834 41 for his damages and costs recovered in the Adams County Court. His recovery in the Court below must have been limited to that sum, whereas, if he had stated his claim truly, and produced the requisite evidence, he might, in addition thereto, have recovered the-costs of the original suit. But this same argument might have been used if the declaration had described the original judgment as'having been for $500 instead of $834 41. In that case, however, the ready answer would be suggested that such á recovery would not be a sufficient protection against subsequent suits for the same subject matter. Would that same answer be applicable to the present argument? Had the declaration been silent as to whether the amount set forth were for damages and costs, or for damages only, it would have been sufficient. The case would then have been brought within the rule laid down in Story's Pleadings, page 336, and followed in the case of Adair's Adm'r. vs. Rogers' Adm'r., Wright's Ohio Rep. 428. But in the present case, the declaration is not silent as to costs, but it expressly avers that the sum of $834 41 is the amount of damages as well as costs. It is true the amount of those costs does not appear, but we are bound to presume they were something, and, consequently, the amount of the judgment described in the declaration must have been essentially different from that in the transcript produced on the trial. The reason of the rule in Story’s Pleadings appears to be that costs are an appendage to, rather than a material portion of the judgment. Had the declaration been silent as to costs, and had the amount of the original judgment as therein stated been found exactly equal to the damages alone as set forth in the transcript, there would have been no essential variance. The same would probably also have been the case, if the amount set forth in the declaration had been exactly equal to the damages and costs both, as stated in the transcript. In either of these cases, the exact correspondence of suras would have furnished so strong a presumption of identity as sufficiently to protect the defendant from a subsequent suit on the same judgment. But in the present case, although there is this exact correspondence of sums, the identity is negatived by the express averment, that the one is the amount of damages and costs, and by the strongest evidence that the other is the amount of damages only. The judgment described and that produced in evidence are essentially different, and there is weight in the argument, therefore, that if the defendant below were again tobe sued on the same judgmentjhe would find much difficulty in defending himself by producing proof of the recovery had against himhere. Although, therefore, we are resolved to lend no countenance to those unmeaning technicalities and absurd quibbles, which, much to the discredit of the legal profession and the prevention of justice, have in some countries been tolerated and even fostered, we are compelled to respect a salutary rule, although iu some instances it may operate with severity and even with seeming injustice. In coming to this conclusion, we find ourselves sustained by the highest authorities. The slightest variance in any essential portion of the description of a written instrument or of a judgment has always been held fatal, unless it should conclusively appear that the mistake could not operate prejudicially to the party wishing to take advantage of it. Many of the cases cited by the counsel for the plaintiff in error sustain this position, and none of those produced on the other side seem to contradict it. The judgment below will therefore be set aside and a new trial ordered.