
    Hunt vs. Lyle.
    A decree rendered in the chancery court of Virginia in favor of as administrator, de bonis non, against the defendant and another “for seven hundred and eighty-four dollars and twelve cents, with interest on sis hundred and fifteen dollars and ninety-two cents, from 24th June, 1828, and costs of suit,” fixed the defendant with the debt in Virginia, and, does so here.
    On a decree rendered in Virginia against two, in favor of an administrator de bonis non, “for seven hundred and eighty-four dollars and twelve cents, with interest on six hundred and fifteen dollars and ninety-two cents, from 24th June, 1S28, and costs of suit',” debt in the debit and detinet will lie, against one or both, in this State.
    When the pleas are payment and nul tiel record, the verdiet of a jury finding that there was no payment, and the judgment of the court upon such finding, after the withdrawal of the plea of payment is surplusage-, and no cause for a reversal of the judgment upon the plea of nul tiel record.
    
    When the declaration averred that the defendant was indebted to the plaintiff by virtue of a judgment recovered in a suit between L and H, its the sum of eight hundred and forty-one dollars and four cents-, to wit, the amount of said decree, seven hundred and eighty-four dollars and twelve cents, and costs of suit, forty-five dollars and ninety-five cents, and costs of the record, eleven dollars and thirty-three cents; and on the trial under the plea of nul tiel record, the record produced was in a suit between L, administrator de bonis non, and H and M, and the decree was for seven hundred and eighty-four dollars and twelve cents, with interest on six hundred and fifteen dollars and ninety-two cents, from 24th June, 1828, and costs of suit; and there was no proper record evidence of the costs, the certificate of the clerk as to them, being informal. Held, that there was no fatal variance between the record produced and the one set forth in the declaration, and that the declaration was good in form and substance.
    The costs paid to the clerk for making out a transcript of the record, form no part of the record, and cannot be recovered in an action of debt upon the record, under the plea of nul tiel record.
    
    When the record sued upon, and produced under the plea of nul tiel record, furnishes no evidence of the amount of costs and the taxation thereof, other than the statement of the clerk at the foot of the record in a sum total, no recovery can be had under the plea of nul tiel record for the sum so stated by the clerk.
    
      This is an action of debt brought m the circuit court or Hardeman county against the pJamtirl m error, upon the record of a decree of the chancery court at Lynch-burg, Virginia. The declaration is in the debit and deti-net. The pleas are nul tiel record and payment. The writ and declaration in this cause demand eight hundred and forty-one dollars and forty cents, to wit, the amount of the decree, seven hundred and eighty-four dollars and twelve cents, costs forty-five dollars and ninety-five cents, and costs of the record eleven dollars and thirty-three cents. The declaration also states the suit to have been between (J. Lyle and W. J. Hunt, without noticing any other person. There is an entry of the withdrawal of the plea of payment, and of a trial of that plea also by a jury in the record. The jury found the plea of payment for the defendant in error, and that the debt was-eight hundred and forty-one dollars and forty cents, besides interest. The record produced for the inspection of the court, under the plea of nul tiel record, shows a decree for the defendant in error, Lyle, as administrator de bonis non, &c. against the plaintiff in error, and G-eorge Mason, for seven hundred and eighty-four dollars and twelve cents, with interest on six hundred and fifteen dollars and ninety-two cents, from June 24, 1828, and costs of suit. The clerk has certified the record thus: “a copy test,” &c. without stating that it is a complete: transcript. The judge of the court has certified that the certificate of the clerk is in due form of law, &c. The record furnishes no other evidence of the forty-five dollars and ninety-five cents costs, and the eleven dollars and thirty-three cents costs of the record, than the statement of the clerk at the foot of the transcript. The circuit judge under the plea of nul tiel record, pronounced the record produced, such a record as was declared upon, and gave judgment upon the finding of the jury for the plaintiff, from which the defendant prosecutes this writ of error,
    
      
      V. D. Barry, for plaintiff in error.
    1. The record is not sufficiently certified. First, because the clerk has merely said "a copy test,” &c. without stating it to be a complete transcript of the record in his office. 2 Saun. PI. and Ev. 276: Gilb. Ev. 23: Burton vs. Pettibone, S. C. at Jackson, March, 1830. Second, because he has neither affixed the seal of the court, nor certified that there was no seal. 2 Ten. R. 191, Fostervs. Taylor: 1 Hay. R. 395, Alston vs. Taylor: 1 Rent’s Com. 308.
    2. There is a variance between the record described in the declaration, and that produced. First, in the sum demanded. The record does not show any particular amount of costs, as is alleged in the declaration; nor does the certificate of the clerk apply or refer to them. Second, in the names and description of the parties. The declaration states the suit to have been J. Lyle vs. W. J. Hunt; the record is of a suit J. Lyle, administrator, &c. vs. George Mason and W. J. Hunt. 1 Chit. PI. 357: 2 Saund. PI. and Ev. 115: 1 Esp. N. P. 2, 51: 1 Pet. Rep. 686, Biddle vs. Wilkins: 1 Hay. R. 488, anon: Cow. R. 766: Hare vs. Cator, Doug. Rep. 1S3: Cow. Rep. 474: Rann vs. Green, 7 Taunt. 271: 1 H. Bl. 49: 4 Bibb’s R. 347, Coleman vs. Edwards.
    It is not contended than an action should be brought against both defendants on a judgment against two; nor is it insisted that describing the decree as being against one only, when in fact it was rendered against two, would be a misdescription or variance, under our act of assembly. But this point does not arise in this case. The declaration correctly states the decree to have been against Hunt; but further states the decree to have been rendered in the progress of a suit or matter in controversy, in which Lyle was plaintiff, and Hunt was defendant, and produces the record. Now we must look to the record and ascertain if there was such a decree. We find it correctly stated. We then look to see in what suit the de-< cree was rendered. This recordshows-it was not in a suit between Lyle and Hunt, but between Lyle on one side, and Mason and Hunt on the other. Therefore, though the decree be correctly stated, the record is not; and we are bound to infer that a similar decree was rendered in a suit between Lyle and Hunt alone, the record of which has not been produced, but still may exist. Here, then, is a clear variance; not in the description of the decree, but of the suit in the progress of which the decree was made. The case in 1 H. Bl. 49, is conclusive.
    3. A variance between the record and declaration cannot be amended. Cro. Eliz. 760: Cro. Car. 162.— First. A scire facias on a judgment in ejectment for two houses, was to show cause why he should not have execution for one house; held ill and not amendable. 3 Salk. 32: Williams vs. Hoskins, 1 Salk. 52: 2 Ld. Ray. 1057: 3 Salk. 80, pi. 7. Second. Writ of error to remove record of trespass by husband and wife; the record certified was a tresspass by wife alone. Held ill and writ abated. 3 Salk. 369, pi. 5. Third. A trifling variance in setting out a contract, record, or written instrument is fatal. 2 Salk. 660, note: 4 T. Rep. 558, Drewry vs. Twiss: 3 T. Rep. 643, Gwinnett vs. Phillips: 4 T. Rep. 611, Gordon vs. Austin, and others.
    4. There is error in the judgment, it being founded on a verdict on the plea of payment, when the record shows that plea to have been previously withdrawn. The verdict is for the “debt of eight hundred and forty-three dollars and forty cents, in the declaration mentioned,” and the judgment follows it. First, If a verdict find matter out of the issue, it is’void pro tanto. 6 Com. Dig. 243: 16 John. R. 307: Richmond vs. Tallmadge, 1 Ma. 153: Stearn vs. Barrett, Cox. Dig. 734, pi. 20.
    
      Wm. Stoddart, for defendant in error.
    Is the record properly authenticated?
    
      Objection. There is no certificate by the clerk that , , - -, there is no seal of office.
    Answer. The judge’s certificate shows it, which is sufficient. 1 Stark. Ev. 154, note: 1 Pet. C. C. Rep. 352: 1 Haywood, 395: 2 Tenn. Rep. 191.
    Objection. The clerk’s attestation insufficient.
    Answer. The judge certifies that it is in due form, and his certificate is made the evidence of that fact. 1 Stark 154, note: 1 John. Ca. 238: 7 Cranch, 408. The attestation must be according to the form, used in the State from whence the record comes; and the only evidence is the certificate of the judge. 1 John. Cases, 238.
    As to the second question, could the action be brought in the debit and detinet. An administrator having recovered judgment for a debt due the intestate, need not declare as administrator in an action on the judgment. 6 Com. Dig. PI. 306: 2 Tenn. Rep. 126: Doug. 4: Bacon’s Ab. 94: Dyer, 322, pi. 26.
    1st Saunders, 112, note 1, shows that the modern authorities support the action; the ancient ones the other way. See 1 Chit. PI. 205.
    Property obtained by the executor by decree, is assets. Toller, 161.
    P. M. Miller, for the plaintiff in error, in reply.
    The defendant relies upon the two following grounds:
    1. The record produced in evidence shows a judgment or decree against Hunt and Mason, and is declared on in this action as a decree against Hunt alone. Variance, 3 Stark. Ev. 1602: 1 Chit. PL 321: 1 Esp. N. P. 51: H. Bl. 49, 50: 7 Com. 207.
    Descriptive allegations cannot be rejected. 3 Stark. 1530, 1531, 1532,1542, to 1551.
    2. The plaintiff sues in his own right when the record shows a judgment in favor of himself, as administrator of another.
    The executor or administrator cannot sue in the debit and detinet on a judgment obtained by himself, on a debt or demand arising in the life time of his testator, but must sue in the detinet only. 3 Bacon, 93, and references: Cro. Eliz. 327: Cro. Jac. 548:2 Rol. Rep. 132: Cro. Car. 225.
   Catron, Ch. J.

delivered the opinion of the court.

1. We think the force and effect of the decree sued on, fixed Hunt with the debt in Virginia, and does so here.

2. That the declaration is proper on the decree in form and substance.

3. That the suit in the debit and detinet was proper.

4. The verdict of the jury is surplusage and null.

5. But the charge of forty-five dollars and ninety-five cents for costs of the suit in Virginia, and for the copy of the transcript eleven dollars and thirty-three cents, cannot be recovered in this action of debt upon the plea of nul tiel record. The record furnishes no evidence of the fact of the charge of forty-five dollars and ninety-five cents other than the statement of the clerk at the foot of the transcript. To this no faith and credit can be accorded by the constitution and laws of the United States.

The charge for the transcript of course forms no part of the record. The judgment will therefore be reversed, and entered for seven hundred and eighty-four dollars and eleven cents, with interest on six hundred and fifteen dollars and ninety-two cents from the 24th of June, 1S28, until this time, and with interest on the balance from the date of the decree, 28th October, 1828.

Judgment reversed.  