Hawkins' v. Berkley , 1 Va. 204 ( 1793 )

LYONS, J.

delivered the opinion of the court.

The variance between the condition of the bond and the breach assigned is not material. Agreements are always to be construed, according to the evident intent of the parties, appearing from the deed itself, without a rigid adherence to the letter. This rule is laid down in the case of Freshwater v. Eaton. Str. 49, and is certainly a correct one. It is plain, that the intention in this case, was to vest in the collector a power to bring suits, and that the exercise of such a power, was necessarily involved in the undertaking on his part.

The case of Bache and others against Proctor Dougl. 382, is stronger than the present. The condition of the bond was, to render a fair, just, and perfect account in writing, of all sums received. It was determined, that the obligor was guilty of a breach of the condition, by neglecting to pay over such sums. Besides, the objection in' this case comes after a verdict. The defendant, *if he had considered the variance as maLerial, might have demurred.

Judgment affirmed.