SEZEHY plea was by this Court adjudged bad on demurrer,) and 0. also the fieri facias issued against Jameson upon that MANDE- judgment with the return of nulla bona; and also offered VILLE. to prove by a competent witness that the promissory note produced to the jury, and in the said record of the suit against Jameson mentioned, is the same promissory note upon which the present declaration was founded, and the same which was intended to have been therein set out and described, and that the omission to state in the declaration the time in which the said note was originally made payable, arose from a mere oversight of the attorney who drew the declaration, and that there was no other note ever intended to have been described in that declaration or answering the description therein contained, but the Court rejected the whole of the said evidence as incompetent; to which the Plaintiff also cxcepted. The jury assessed the Plaintiff's damages, and judgment was rendered accordingly at one cent only; where upon he brought his writ of error. E. I. LEE, for the Plaintiff in error. It being the prime object of Courts to do justice, the Court will decide in favor of the Plaintiff if the justice of the case be with him, unless there be some technical rule so strong as to leave the Court no ground in his favor. 1. The first question is whether there be any variance between the note declared upon, and that produced before the jury on the execution of the writ of enquiry. What is, in law. a variance? The rule is that the allegata and probata must correspond in all material points. The note produced was payable "sixty days after date." The declaration does not state when it was payable. There is therefore no repugnance, no inconsistency, between them. To have made it a variance, the declaration should have expressly averred that the note was payable on demand. The omission to state a fact, without a direct averment of a different fact, is not a variance. 1. Bos. and Pul. 225. ช. The declaration leaves it uncertain when the note SHEERY was payable; but the note itself renders that certain which had been left uncertain on the face of the declara- MANDE tien. An averment is a positive statement: and is used in opposition to argument, or inference. Cowp. 683, 684. From the statement in the declaration, it is only matter of inference that the note was payable on demand. But there is no variance between the assumpsit laid, and the note offered. The statement of the note in the declaration is only inducement ;-but in the assumpsit it does not say when the money was to be paid. In setting forth the matter of inducement, exact certainty is not required. 5. Com. Dig. 35. C. 30. The declaration states what, in law, is considered as a parol agreement-and the action is a general and not a special indebitatus assumpsit. Under the count of general indebitatus assumpsit, any evidence substantiully corresponding with the cause of action set forth in the declaration, may be given in evidence. There is no variance whenever the time or date is uncertainly set forth or omitted. It may be supplied by pleading, or by finding, and therefore in order to render, by finding, that certain which is omitted, or which does not correspond with the statement in the narration, evidence must be heard. Cromwell v. Grumsden, 1. Lord Ray, 385. If a patent be pleaded without a date, and the one produced has a date, it is not a variance. 5. Com. Dig. 395. Every thing is form, without which the right of action appears to the Court. Hob. 233.—5. Com. Dig. 139. This suit was brought after the note became due, therefore the time of payment was then not material to the Plaintiff's right of action. The promise, for a valuable consideration gives the right of action. The time of payment was not material and could not have been put in issue. 5. Com. Dig. 27. The omission is cured by the statute of jeofails. Virg. Laws. 112. sect. 26. If after verdict the Plaintiff could not be required to VILLE. SHEEHY show such a note as is set forth in the declaration-so บ. upon a judgment by confession, nil dicit, or non sum inMANDE- formatus, he is not bound to shew such a note. VILLE 2. If there be a variance, it is not a material one. 1. Wash. 72, Evans v. Smith. In the bond, in that case, the obligor was stated to be "of the county of Essex," which part of the description was omitted in the declaration, and it was held to be an immaterial variance. It is only necessary to prove substantially the cause of action declared upon. 1. Wash. 199, M'Williams v. Willis. In that case the agreement was made by Willis, "as treasurer of the jockey-club." The declaration omitted this description, and it was holden no variance. The reason was that he was equally liable whether he contracted as treasurer or not. So in this case the Defendant was equally liable whether the note was payable in sixty days or on demand, the sixty days having expired before the suit was brought. In the case of Peter v. Cocke, 1 Wash. 257, the suit was upon a bond given to U. P. "of the county of Surrey, on account of Messrs. G. and P. merchants in Glasgow." The declaration stated the bond to be given to W. P., without stating on whose account; yet it was holden no variance. In the case of Frac v. Washington and others, 1 Wash. 357, the declaration stated an agreement by which the Appellant was to rent and furnish a house in Leedstov:n, and entertain one of the Appellees, two of their storekeepers and a servant with meat and drink for one year, for which the Appellces agreed to pay him for the three first 25l. each, and for the last 81. The evidence offered did not show any agreement respecting the renting of a house at Leedstown; but it showed an agreement to pay 831. in gross. Held ne variance, The date of a deed is not of its substance. 2 Co. 5. (a) Goddard's case. Upon the same principle the time of payment is not of the substance of a contract. A variance between the date of the bond declared upon, and that cited in the award, is not fatal, if they SHELY agree in every other particular. 3 Call. Ross v. Overton. 3 Hen. and Mun. 237, Lyons v. Gregory. In the case of Baptiste v. Cobbold, 1 Bos. and Pul. 7, the contract stated in the declaration was for 52 10 0 for gum-money; the evidence was a note by which the Defendant agreed to allow the Plaintiff the above sum; together with a pint of rum per day--and held no vari ance. The grounds upon which the law requires that the probata should agree with the allegata, are 1. To apprize the Defendant of the nature of the charge; and, 2. To enable him, by a reference to the record itself, to plead the judgment in bar of another action for the same cause. The declaration in this case did apprize the Defendant of the nature of the charge; for he appeared and pleaded to the action, and by his plea identified the note. The second object is obtained by the record, by which it appears that the note offered in evidence is that which was declared upon. If this note had been received in evidence, it would have been filed and formed a part of the proceedings which the clerk is bound, by the statue of Virginia, to retain. If the reason of the rule requiring the allegata and probata to correspond, is attained in this case, and if there was no danger of a second suit being maintained upon the same cause of action against the Defendant. the variance cannot be material. 3. The Plaintiff was not bound to produce, upon the execution of the writ of enquiry, the note or the evidence of the debt. Where there is judgment by default in an action upon the case on a promissory note, the court will (without a jury) direct the clerk to ascertain the damages. 1 H. B!. 252, 529, 541. These cases were decided upon the ground that the amount claimed in the declaration is admitted in the same manner as if the action was, debt: because a sum certain is demanded, and it is not like the case where the cause of action sounds in damages, and not in contract, ascertaining on its face the amount claimed 20. MANDE VILLE. SHEEHY Upon executing a writ of enquiry, the Plaintiff is not bound to prove his cause of action, because it is admitMANDE- ted as laid. Cro. Jac. 220. VILLE. If the cause of action is admitted, and the note not required to be proved, and it is to be produced for no other purpose than to see whether there is any credit on it, and there should be a difference in the date; yet it is not a variance, because a variance can exist onlywhere proof is to be made. The case of Green v. Hearne, 3 T. R. 301, shows that upon a writ of enquiry, it is not necessary to prove the bill of exchange; that a variance between that declared upon and that produced is not material, and that evidence dehors the bill is admissable to prove that the bill produced is that which was declared upon. Bayley on bills, appendix No. 7, p. 74, Mills v. Lyne. Kyd on bills, 155. 2 W. Bl. 748. 2 Stra. 1149. Bayley 66, 67, Bevis v. Lindsell. All these cases show that after judgment by default a promissory note set out in a declaration need not be produced. Sayer, on Damages, 112, 113, says where there is judgment upon demurrer, the justices may award damages; the amount of the damages laid in the declaration is admitted. 4. The Court erred in directing the jury that they were bound to presume from the non-production of the note declared upon. that it was paid or had been assigned away by the Plaintiff to a third person for a valuable consideration, unless the non-production was sufficiently accounted for. The non-production of the note was only a circumstance to be left to the jury to draw such inference from as they should think proper, under the whole of the circumstances attending the case. The Court undertook to decide on the weight and effect of this negative kind of evidence. Presumptive evidence is always left to the jury. Hull v. Horner, Cowp. 109. 5. The Court ought to have admitted the evidence offered to show that this was the note intended by the description in the declaration-especially the Defendaut's own pleas, in which he affirms the note described |