McQueen v. Farrow

• Decision Date: 31 August 1835
• Citation: 4 Mo. 212
• Parties: MCQUEEN v. FARROW.
• Court: Missouri Supreme Court

4 Mo. 212

MCQUEEN

v.FARROW.

Supreme Court of Missouri.

August Term, 1835.

WRIT OF ERROR TO THE CIRCUIT COURT OF PIKE COUNTY.

M'GIRK, J.

Farrow brought an action of debt on a decree rendered in a court of chancery in the State of Kentucky--McQueen pleaded nul tiel record. On this issue the parties went to trial, a judgment was rendered for the plaintiff, Farrow. McQueen has brought the cause here by writ of error. On the trial the defendant made two objections. The first of which will be attended to now. It was that the attestation was not sufficient. The attestation of the Judge says nothing about the fact--whether the person who makes the certificate was in fact clerk or not. The act of Congress does not require this. The certificate of the Judge contains all the act of Congress requires. There is no error on this point.^(a) The other point raised presents a question of variance. The declaration sets out that in a certain court of chancery in the State of Kentucky, a suit was brought and that such proceedings were had thereon, that the plaintiff obtained a decree, &c.

The demand in the declaration is for five hundred and fifty dollars and seventy-one cents and a half cent. The declaration then says the decree was for one hundred and twenty-five dollars and fifty-one cents, being the balance of hire for a negro boy, John. The declaration then sets out the other items of the decree which make up the amount demanded in the declaration. The words of the decree with regard to this item are thus, “it is decreed and ordered, that the complainant recover of the said defendant, the sum of one hundred and twenty-five dollars and fifty-one cents, being the amount which the hire of the boy John exceeds the original advances made by the defendant to the complainant and interest thereon. The record was objected to because of an alleged variance from the declaration. The first matter of variance pointed out by Mr. Chambers for McQueen is this--the declaration claims the $425 51, as being a balance of hire for the negro boy, John. It is argued that by the decree it does not appear to be a balance of hire. The decree says it is the amount the hire exceeds advances. This in our opinion clearly shows the sum decreed was a balance of hire; though the court does not call it a balance, we see on what account this sum was decreed. The fact that the plaintiff called it a balance, and that the decree does not name it so, cannot be a sufficient variance to make the record...