Administrator of James v. Scott , 7 Port. 30 ( 1838 )

ORMOND, J.

— The decision of the court belo'W must have proceeded on the ground, that the words “value received” in the statement of the plaintiff’s cause of action, were a part of the description of the bond; when it was certainly nothing more than an unnecessary averment on the part of the pleader, that the bond was given for a valuable consideration, ‘which cannot vitiate: Admitting, that in cases of this kind the same strictness will be required in pleading, as in causes originating in the Circuit or County courts,' still, the decision of the court beldw cannot be sustained. This court, in the case of Harrison vs. Weaver, (2 Por. 543,) decided, that where the declaration described a note as payable to “ order,” when the note did not contain these words, the variance was immaterial — on the gfound that the legal effect of the note was, that it was payable to order— and they lay down as a test of such cases, that if the averment does not change the nature of the contract, but the legal effect continues the same, the objection cannot be made; and in support of their decision, cite (7 Cranch, 408.)

In this case, it is manifest there was no attempt to set out the bond in hcec verba; had that been the case, there would have been some plausibility in the objection.

The judgment must be reversed and the cause remanded.