Farrar v. Fairbanks ( 1865 )

Barrows, J.

The prevalent looseness in matters of pleading, growing out of the facility with which amendments are allowed, does not warrant the attempt hero made on the part of the plaintiff.

Thomas Farrar avers that he recovered judgment against the defendant, " as by the record thereof now remaining in said Court appears.”

The defendant pleads mil tiel record, and, upon issue joined, the record produced is of a judgment in favor of Thomas Farrow.

The naked issue raised was whether there was any such record as that set forth in the declaration. The presiding Judge ruled that there was a material and fatal variance between the declaration and the record of judgment produced to support it, and ordered a nonsuit.

The plaintiff excepts and asks us to determine as matter of law that Thomas Farrow is, in a record, one and the same with Thomas Farrar. Undoubtedly, if there were a misprision, it was competent for the plaintiff to have averred that he, by the name of Thomas Farrow, recovered the judgment. Had he moved to amend so as to present that issue, leave would undoubtedly have been granted.

But, upon the pleadings here presented, we cannot presume that these two names refer to the same person.

There is no such record as the declaration sets forth, and the exceptions must be overruled, and

Nonsuit confirmed.

Appleton, C. J., Kent, Walton and Danforth, JJ., concurred.