Taylor v. Kennedy, 1 Ill. 91, 1 Breese 91 (1825)

June 1825 · Illinois Supreme Court

1 Ill. 91, 1 Breese 91

Abraham Taylor and Benjamin Parker, Plaintiffs in Error, v. Thomas Kennedy, Treasurer, &c., Defendant in Error.

ERROR TO CRAWFORD.

A variance between the instrument declared on, and the one set out on oyer, is fatal on demurrer.

Opinion of the Court by

Justice Smith.

This was an action on a security bond, given for the faithful performance of the duties of Taylor, one of the defendants, as a constable for the county of Crawford.

It is unnecessary to notice more than one of the several causes assigned for error. The declaration, in setting forth the bond, does not allege that the bond was executed on any particular day or month, but generally in the year 1819. Oyer of the bond being prayed and given, Shows the bond to have been executed on the day of 1825.

The defendants in the court below, after reciting the bond given on oyer, demurred to the declaration as insufficient. The question of variance is then the simple and only question to be decided. Was this omission of the recital of time in the declaration fatal ? On this point the court can not entertain a doubt.

The court need not enter into the reasoning which governs decisions on the subject of variance between the instrument set out in the declaration and the one offered on oyer, nor is it necessary to elucidate by comparison, that this was one essential in its character, and might be important in its bearing on the ultimate liability of the parties and in the decision of the cause.

The court are therefore of the opinion that the court below erred in overruling the demurrer, and that the judgment below ought to be reversed and that the plaintiffs recover their costs, ^(a) , ⁽¹⁾

Judgment reversed.

(a) Connally v. Cottle; Rust v. Frothingham and Fort; Prince v. Lamb.

(1) As to craving oyer, see Sims v. Hugsby, post.; Bogardus v. Trial, 1 Scam., 63; Collins v. Ayers, 13 Ill., 362; Harlow v. Boswell, 15 Ill., 57; and note to Mason v. Buckmaster, ante, p. 27.

A note was described in the declaration as being payable “ on or before,” &c.; the note offered in evidence was payable on the day named, and not on or before : Held that this did not constitute a variance between the declaration and the proof. Morton v. Tenny, 16 Ill., 494.

Where a note offered in evidence differed in amount a half cent from the one declared on, it was held to be a variance, and that it could not be received in evidence. Spangler v. Pugh, 21 Ill., 85.

Where an instrument is not truly described in its material parts, it can not be read in evidence under a special count. Higgins v. Lee, 16 Ill., 495.

See also, Baxter v. Knox, 19 Ill., 267; Crittenden et al. v. French, 21 Ill., 598; Van Court v. Bushnell et al., id., 624; Freeman's Digest, p. 1317.