Pemberton v. Searce , 3 Ky. 3 ( 1805 )

The Opinion of the Court. — The fixing a day of payment in the teneri of the bond, is unusual, if not nonsensical, and can only be considered as surplusage — the day of payment being also fixed in the condition ; for if the day fixed in the teneri and condition had been different, that in the condition must govern. The variance stated in the first error, is therefore immaterial ;^* nor is the variance between the judgment and execution, as to the sum, material — there being enough in the record to, amend by, the judgment will be considered as amend-e<l (^a) > hut the variance between the execution and the proceedings and judgment in the cause, in not stating William Searce to be assignee of Dudley Mitchum, must be fatal, because it does not appear to have issued on that judgment, nor any- other. ^†

Judgment reversed.

a (a) 2 Wafh. 134-5.

* In Mulroy vs. Hensley, fpring term, 1810, a fimilar variance was held fa, tal on oyer and demurrer.

† Quere, and fee Palmer and Cafey vs. M'Ginnefs, poft.