Rodman v. Forman , 8 Johns. 26 ( 1811 )

Per Curiam.

There is no material variance between, the declaration and the exemplification of the bail-piece, and recognisance of bail offered in evidence. The de- . claration states that the intestate came into the supreme court, by the name of S. Forman, of Kortright, in said county, farmer, and became special bail, &c. The bail-piece produced states that the intestate became bail by the name and description of S. Forman, of the town of Kortright, in said county, farmerand the record of the recognisance of bail states that the intestate S. Forman, of the town of Kortright, and county of Delaware, farmer, became bail, &c. The description in the bail-piece corresponds with that in the declaration, except that in the latter the words “ the town ofare omitted. The sense is not varied, and the description was not set out according to the tenor, or in hate verba. In Cumming v. Sibly, cited by Buller, J. in 1 Term Rep. 239. the declaration stated the precept to be directed to the mayor only, and it was proved to be directed to the mayor and burgesses ; and the court of C. B. held it sufficient, as the substance was preserved. The bail-piece was the warrant for the recognisance roll, and being attached to it, it formed part, of the record, and was evidence of the averment in ihc pleading.

The second objection is without any weight, for in judgment of law, and according to the form of the record, the intestate came into court and entered bail; and if the evidence be wholly confined to the roll itself, the declaration is supported, for the roll does not pretend to. state the precise addition under which the intestate appeared. It designates the place of the intestate, but does not recite that under that exact description he appeared. The record does not contradict the description in the declaration, and that description might be rejected as surplusage. (2 East, 4-52.)

The motion on the part of the defendant is, therefore, denied.

Motion denied.