Crawford County IL Archives Court.....Taylor, Vs. Kennedy 1819-31
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:28 pm

Source: Reports Of Cases Illinois
Written: 1819-31

JUNE TERM, 1825, Vandalia. 

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 selling 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 defendant 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 off red 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.

When 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.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

File at: http://files.usgwarchives.net/il/crawford/court/taylor236gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 3.8 Kb