M'Kenzie v. Connor , 1 Stew. 162 ( 1827 )

By JUDGE SAFFOLD.

In sustaining- the demurrer the Court is charged to have erred. Without any inquiry into the effect of the variance between the writ or the endorsement thereon, and the declaration, or the necessity of oyer, it will be sufficient to notice the variance and contradiction in the declaration itself, in as much as it can derive no aid or certainty by reference to the writ and endorsement.

The action of debt was only for the recovery of a specific sum in numeroThe pleadings must contain sufficient certainty to enable the Court to render final judgement thereon for the sum.demanded, unless the claim be diminished by evidence of extrinsic circumstances. It is true that, when an entire sum is demanded in the writ or commencement of the declaration, and it is shewn by different counts to consist of several distinct accounts, which together do not equal the aggregate demand, the different counts being certain and consistent in themselves, will, be sustained ; and if some of the counts are proven entire, though others are not, a recovery may be had o.n such as are established. Or if, after any particular count has been proven as laid, the claim be reduced by evidence of part payment or otherwise, the residue may be recovered.

In this case, the declaration consists of but one count; tjje sum thereby demanded is uncertain and variant in *tse^- Had li been necessary for the Court to render judgement for the plaintiff on demurrer, the plea of nut tiel record or otherwise, without the intervention of a jury, no sum for which it could be rendered would have corresponded with the entire count. Judgement affirmed.

Judge Crenshaw, who presided in the Court below, not sitting.

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