Fulcord v. Hamberlin , 12 Miss. 649 ( 1845 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a notice in the circuit court of Franklin county, made by the plaintiff in error against the sheriff of Madison county and his sureties iu office. The court rejected the execution which was offered in evidence, because it was different from that described in the- notice, by the amount of 62| cents in the statement of costs. The plaintiff in error excepted to the opinion of the court, and brought a writ of error.

It is not easy to lay down any general rule on the subject of variance. A growing spirit of liberality prevails in this, as well as in most other points of practice. Wherever the instrument offered in a civil suit differs so little from that described, as not to be likely to produce any detriment to the opposite party, either in the then pending or in any future controversy, we think it better, in general, not to exclude it. We are of opinion, in this instance, that the execution should have been admitted, and therefore reverse the judgment.

We cannnot refrain from remarking, that a much more easy, expeditious, and, in every way preferable remedy to a writ of error, was within the reach of the party. Upon application, the court below would no doubt have permitted an amendment of the notice, and would have imposed at most a continuance of the cause to the next term as a condition. In that mode, time, trouble, and expense would have been saved to all parties concerned.'

Judgment reversed, and cause remanded.