Stoddart against Palmer
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1824 |
| Date | 19 June 1824 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 636
IN THE COURT OF KING'S BENCH.
636 STODDART V. PALMER 3B-&C. 3. stoddart against palmer. Saturday, June 19tb, 1824. Where in an action for a false return to a fieri facias, the declaration stated that the plaintiff in T. term, 2 G. 4, by the judgment recovered, &c. " as appears by the record," and the proof was of a judgment in Easter term, 3 G. 4: Held that this was no variance : for that the averment, "as appears by the record," was surplusage, and might be rejected, inasmuch as the judgment was not the foundation of, but mere inducement to the action. Action against the defendant, as late Sheriff of Surry, for a false return of nulla bona to a writ of fieri facias. The declaration stated that the plaintiff, in Trinity term, in the second year of our lord the now [3] King, in the Court of King's Bench, by the consideration and judgment of the Court, recovered &c., as by the record remaining in the Court of King's Bench appears. Plea, general issue. At the trial it appeared, upon the production of the record of the judgment, that the costs were taxed on the postea in Easter term, the 3 G. 4; and the Lord Chief Justice was of opinion that this was a variance, and the plaintiff was nonsuited. A rule nisi had been obtained for setting aside this nonsuit, against which Marryat now shewed cause. The plaintiff having set out a judgment in his declaration, and concluded prout patet per recordum, was bound to prove a judgment precisely the same in all its circumstances as that alleged. Pope v. Foster (4 T. R. 590), is in point; and although the decision in that case was overruled by that of Purcett v. Macnamara (9 East, 157), yet in the latter case Lord Ellenborough expressly took the distinction, that if the plaintiff had stated the record, and then alleged prout patet per recordum, that it would not have been an allegation of substance but of description. This, therefore, falls within that distinction. In the subsequent ease of Phillips ' v. Shaw (4 B. & A. 435, and 5 B. & A. 964), this averment was omitted in the count on which the verdict was taken. Besides, it was impossible to maintain this action without shewing a writ founded upon that judgment. The judgment, therefore, is the very foundation of the action, and it was necessary to set it out precisely. Scarlett contra. The averment of prout patet per recordum is unnecessary. It may be therefore rejected, [4] as surplusage, for the...
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Dakin's Case
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