
    *William Brown, executor of Weston Clark, against Samuel Young.
    
      Scire facias on report of referees, finding that the defendant should make a certain deed or pay a sum of money, need not state that the deed has not been made, after the defendant has made exception to the report, and judgment has been rendered thereon.
    
      Scire facias sur report of auditors.
    Plea, nul tiel record.
    
    The plaintiff shewed to the court a record of the Court of Common Pleas, whereby it appeared that the matters in dispute had been submitted by the testator and defendant to referees', and that the referees had awarded, that the defendant should make a deed to the testator for five thousand acie& of land in Harrison county in Virginia, or pay to the testator 104I. 3s. 6d. This report was filed 15th October 1787, and judgment «¿re’entered thereon. The defendant’s counsel filed his exceptions to the report, and afterwards, in December term 1788, the Common Pleas overruled the exceptions and gave final judgment for the plaintiff. A scire facias was then brought in the same court by the plaintiff as executor, stating the non-payment of the money in the report, but silent as to the deed.
    Messrs. Wilcocks and S. Levy for the defendant,
    contended, that the scire facias was defective, inasmuch as it did not recite the judgment on the report truly as entered 15th of October 1787; and as he thereby had the alternative of giving the deed or paying the money, it was a martial variance. If a judgment is on several promises and entire damages, and the scire facias recites ciijusdam promissionis, it is a variance, and cannot be amended. 2 Stra. 892. Variance of a scire facias from a judgment held ill. 5 Com. Dig. 394; System of Pleading, 368.
    “To this it was answered by Mr. Sergeant for the plaintiff, that the election of the defendant was destroyed at the time of the final judgment; and such was the case in 'Thompson v. Musser, Dallas 460, 462.
   Per Curiam.

The plaintiff is entitled to judgment. The defendant has waived his election by filing his exceptions to the report. If he had thought proper he might in due time have tendered the deed as an escrow; but he was precluded at the time of the final judgment, and the court could not then by their act, after the day was passed, have granted him further time to tender the deed.  