Silver v. Kendrick

It is true, as remarked, in 7 Crunch 413, that, “ in general, courts of law lean against an extension of “ the principles applied to cases of variance. Mistakes of “ this nature are usually mere slips of attorneys, and do not “ touch the merits of the case. Lord Mansfield has well ob- “ served, that, it is extremely hard upon the party to be turn- “ ed round and put to expense from such mistakes of his “ counsel, and it is hard also upon the profession.”

Still we feel no inclination to deviate from established precedents on this subject, unless a case should arise where such deviations are necessary, not merely to prevent cost, which is the usual and justifiable punishment for such inad-vertences, but to prevent injustice and a final forfeiture of a parties rights.

It would seem to be the invariable practice to require, in declarations for false affirmation, a special detail of every important fact. 2 Ch. Pl. 278.—3 B. & P. 367.—3 D. & E. 51.—1 East. 318.—2 do. 92.

Indeed, the rule extends to all declarations, on express contracts, whether written or parol,(1) and whether the form of action be ex contractu or ex deliclu. 1 Ch. Pl. 306, and auth. there cited, Doug. 667.—5 Es. C. 31.—4 Maul. & Seize. 473.—2 Barn. 4 Ald. 767, Swallow vs. Beaumont.

But this strictness and the consequence, that minute variances are fatal, do not apply to those parts of the declaration, which do not describe the contract itself ;(2) nor to any part of the declaration, if it purport to contain only the legal effect or spirit of the contract.(3) For then, (says 1 Chitt. Pl. 307,) the declaration “ will in general be suffi- “ cient, though it may vary from the precise words of a “ contract.” Doug. 667, Bristow vs. Wright.

The present declaration may well be supposed to have undertaken to describe only the legal effect of the false *162affirmation made by the defendant; for a declaration seidom attempts to set oat the “ precise words,” unless when made on a written contract or for defamation. But the legal effect of the affirmation in the present case was, that C. and />,, the signers of the note, were men in good credit; and Col. B., being admitted to have been a man of property, was merely instanced as an illustration of what was meant by good credit.

When we consider the known responsibility of the man to whom they were compared, the affirmation “ must re- “ ceive the same legal construction, whether the words” of comparison “ be in or out of the declaration and that is one of the safest criterions of the conformity of the declaration to the legal effect and spirit of the affirmation. 7 Cra. 414.—1 D. & E. 235, King vs. Pippett.—Doug. 665, Bristow vs. Wright.— 2 East, Williamson vs. Allison.— 4 Maul. & Selw. 474, Hoar vs. Mill, Baily J.

In 1 Barn. & Ald. 9, Wildman vs. Glossop, the declaration was for a certain quantity of oil sold, and the quantity was afterwards found to be so much. Evidence of a sale of all per the Wildman, but same amount and same oil held to be no variance, “ inasmuch as the term in the contract, not “ stated in the declaration, does not qualify or annex any « condition to that which is stated.” — Abbott, Ch. J.

In 1 Barn. & Ald. 224, Mountstephen and others vs. Brooke, the declaration was on anote as made jointly by three, when in evidence it -appeared to have been made by four ; no variance. Enough was stated and proved to charge defendants.

In 2 ditto 335, Wickes vs. Gordon, the declaration was on a contract to deliver stock, February 27th. Evidence to deliver it on the “ settling day,” which it was supposed would be the 27th. No variance.

In 4 Maul. & Selw. 474 note, Hamborough vs. Wilkie, the plaintiff declared that the defendant bound himself, his heirs, executors, and administrators, and proved a deed, in which be bound himself, executors, and administrators only. The *163word, “ heirs,” was held to be surplusage, and the variance not material.

In 1 Brod. & Bin. 446, Arnauld vs. Revault, the declaration was on a lease to plaintiff', when in evidence the lease appeared to have been to plaintiff and wife. It was held to be no variance from the spirit of the contract.

Judgment on the verdict.