Phillips against Shaw
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1821 |
| Date | 14 May 1821 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 996
IN THE COURT OF KING'S BENCH.
See correction, 5 B. & Ald. 964.
[435] phillips against shaw. Monday, May 14th, 1821. In assumpsit for not indemnifying plaintiff in consequence of his having become bail for A. in an action at the suit of B., it was stated that B., in Michaelmas term, 58 G. 3, recovered against plaintiff. The judgment given in evidence was in Hilary term : Held, that this was no variance, inasmuch as this was not matter of description, but an allegation in substance that the judgment had been obtained before the commencement of the action. [See correction, 5 B. & Aid. 964.] Assumpsit. .The declaration stated, that one Thomas Pinnock had been sued by Daniel Page in an action of assumpsit for a debt, and that whilst such action was depending, in consideration that plaintiff would become bail for Pinnock, defendant undertook to indemnify him. That plaintiff accordingly became bail for Pinnock jointly with defendant, and on 24th June, 1816, duly entered into a recognizance of bail, whereby they consented that the damages should be levied on them, in case Pinnock did not pay them, or render himself to custody. It then stated, that such proceedings were afterwards had in the said action, that said Daniel Page afterwards, to wit, in Michaelmas term 58 Geo. 3, in the Court of King's Bench, recovered and1 obtained judgment in the said action against Thomas Pinnock for a large sum of money, as in and by the record of the said judgment still remaining in King's Bench will appear. It then set out an action commenced by Page against plaintiff, upon the recognizance of bail, by which plaintiff was damnified : breach that defendant had not indemnified him. Plea, general issue. At the trial before Abbott C.J., at the last Guildhall sittings, it appeared, on the production of the office-copy of the record, in Page v. Pinnock, that the judgment in that case was obtained in Hilary term 58 Geo. 3, whereupon it was objected, that this was a fatal variance from the statement in the declaration. The learned, Judge, however, over-ruled the objection, and the plaintiff obtained a verdict. And now [436] F. Pollock moved, by leave, to enter a nonsuit. This was a fatal variance. This is in fact part of the...
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