Bibbins v. Noxon — 4 Wend. 207

Majority

p. 207

Bibbins vs. Noxon.

Headnote

In an action of debt, on recognizance of bail, a variance of six cents in the amount of the judgment against the principal, between the declaration and the record produced, is fatal on a plea of nul tiel record.

Trial by record. The declaration was in debt on recognizance of bail, setting forth a judgment against the principal for #98,90. The defendant pleaded nul tiel record as to the judgment. The record produced was for #98,96. The defendant insisted upon the variance.

E. W. Leavenworth, for defendant

Baldwin <§• Strong, for plaintiff.

By the Court,

The variance is fatal, the defendant having put the judgment in issue by his plea of nul tiel record. Had the judgment been mere matter of inducement, the variance might have been disregarded ; but in this case it cannot be overlooked. It cannot be cured by a remititur; for that must be before judgment. (Strange, 1170. 4 T. R. 560.) The defendant is entitled to judgment.