Bell v. Scott
| Decision Date | 30 September 1833 |
| Citation | 3 Mo. 212 |
| Parties | BELL & CRAIG v. SCOTT. |
| Court | Missouri Supreme Court |
M'GIRK, C. J.
This was an action against a sheriff for a voluntary escape. The declaration sets out the judgment for debt, damages and costs, which costs are general without saying how much. The declaration then avers that these costs amounted to $3 37 1-2; it then concludes with a prout patet per recordam. The declaration then avers that an execution issued for the debt, damages and costs aforesaid. which said debt, damages and costs were duly endorsed on the execution with the additional costs of said execution, amounting in all to the sum of $5 00. The record containing a copy of the execution and endorsements, were offered in evidence and rejected by the Court on the ground of variance. On the back of the execution the costs are endorsed thus--costs, clerk's fees $1 87 1-2, tax on execution 62 1-2, Attorney Wilson $2 50--$5 00. It is assumed that the $1 87 1-2 charged here as clerk's fees are intended to be the clerk's fees accrued before the issuing the execution, and that sum added to the $2 50, the fee of the attorney, will make $4 37 1-2. It, therefore, cannot be true: the costs of the suit on the rendition of the judgment were only $3 37 1-2. Inasmuch as the clerk has in this taxation made no charge for his issuing fee, we are well satisfied that the clerk's fee of $1 00 for issuing execution is included in his charge of $1 87 1-2. Take this sum from his charge of clerk's fees, the balance will be $3 37 1-2; so that we conceive there is not even a technical variance. Another view in regard to this variance is this: that as this matter of variance only arises on the taxation of costs, endorsed on the execution, no advantage can be taken of it. The declaration does not vouch the record as proof of that matter by a prout patet per recordam. Then we conceive the variance is subject to the rule laid down in 3 Starkie's Evi. 1603, which rule is, that where a fact is simply alleged, without vouching any instrument, and the instrument is used as mere evidence, a variance will not be material, if the substance is proved. The same rule was laid down by this court in Martin v. Miller.(a) The judgment of the Circuit Court is reversed, the cause is remanded, &c.
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