Friend v. Woods

Daniel J.

delivered the opinion of the court.

The court does not deem it necessary to express any opinion on the question, raised at the bar by the counsel of the defendant in error, whether upon the supposition of the existence of the alleged variance between the record vouched in the declaration and that exhibited in reply to the oyer the proper mode of taking advantage of such variance was not by plea of nul tiel record instead of by demurrer; as it seems to the court that there is in fact no such variance.

The verification by the record, or prout patet per recordurn in the declaration, cannot be properly regarded as extending to the averment in respect to the amount of the costs. The judgment of the Court of appeals properly ascertained by and to whom the costs were to be paid; but it was no part of its function to fix the amount of the costs. That was a matter to be determined not by a reference to the record of the judgment of the court, but to the certificate of taxation made at the foot of the transcript of the record. The allegations in the declaration are to be construed in reference to this well known state of things ; and the averment as to the amount of the costs is, in this view, no part of the description of the judgment. Consequently no variance would be established by showing that the amount of costs averred differed from that taxed. There is in fact however no difference between the amount of the costs averred and that certified. It is true that the declaration avers under a scilicet that the costs amount to the sum of 28 dollars 59 cents; and the *39 clerk of the Court of appeals certifies that they amount to the sum of 26 dollars 91 cents ; but on the back of tbe transcript of the record is a certificate of the clerk of the Superior court of Kanawha, that the costs incurred by the defendant in recording the judgment of the Court of appeals in the Superior court and in issuing execution, are 1 dollar 68 cents. This last sum is a proper charge as constituting part of the costs of the defendant in his defence expended; and when added to the amount taxed by the clerk of the Court of appeals, makes an amount identical with that averred in the declaration.

No other variance is alleged in the petition or suggested at the bar; and the court on an inspection of the record perceives none. The court is therefore of opinion that there is no error in the judgment, and that it ought to be affirmed with costs.

Judgment affirmed.