Browne v. David Ross & Co. , 8 Va. 221 ( 1791 )

Pendleton, President,

delivered the resolution of the court as follows:

The judges are of opinion, that the variance contended for on behalf of the appellant is not fatal. The declaration is, indeed, new, and the court does not recollect to have seen one like it before: But, yet they cannot, when all the circumstances are considered, decide that it excludes the evidence. For, in the first place, if the defendant had, in fact, paid the debt, and wished to avail himself of it, he ought, according to the strictness of pleading, to have craved oyer of the bond, and pleaded payment of the sum in the condition; which would have made the bond part of the declaration, and shewn the day when it became payable. But the effect is similar as the case stands ; for the object of oyer is only to identify the instrument; and, when the defendant pleads to the bond referred to in the profert, he admits it to be the same with that described in the declaration; which answers the purpose of identity full as well as oyer, and precludes exception upon the ground of variance, at the trial. In the next place, it is to be observed, that the plea is payment generally, without specifying either time or sum. But, as it is obvious that he meant the principal and not the penalty, the indefinite plea should be referred to the condition; which discloses the period when the money was to be paid, and, by fixing the time when the penalty was forfeited, ascertains the day when that became payable. The judgment, therefore, is to be affirmed.