
    Page against Woods, Sheriff.
    ALBANY,
    Jan. 1812.
    In an action of debt a^ gainst a sheriff for the escape of a prisoner in his custody on execution, the plaintiff in his declaration alleged a judgment re-coy ered in the pour! of common pleas of the term of August, 1807, held at Salejn, in thé county óf Washington, fccc. and in the record of the* judgment produced at the trial, the place 'or town where" the court was held, was not pientioned; it was held that the variance was immaterial?
    IN error, from the court of common pleas of Washington cornil ty, The plaintiff brought an action of debt against the defendant, in the court below, for tjie escape of one D. Powers, who was taken in execution, at the spit of the plaintiff. The declaration stated, that the plaintiff recovered against D. P. “ in the term of August, in the year 1807, in the court of common pleas, held at the court-house, in the town of Saleni, in the cqunty of Washington, before the judges and assistant justices of the same court,” &c.
    At the trial, the plaintiff produced jp evidence the record of a judgment against Powers, which had the usual caption; but the form of the entry of the judgment was as follows: “ And now, at this day, to wit, on the last Tuesday of August, in the year of our Lord, 1807, until which day, &c. at which day before the judges and assistant justices aforesaid, the said C. Page, by his attorney, &c, and the said D. Powers, though solemnly called, came- not, but made default, See. therefore it is considered by the said court, before the judges and assistant justices aforesaid, that the. said C, Page recover,” &c.
    The defendant’s counsel objected, that the record produced did not support the allegation in the plaintiff’s declaration; and the objection being allpwed, the plaintiff was nonsuited. '
    
      Skinner, for the plaintiff in error, contended that the variance Was immaterial, and cited 8 Johns. Rep. 455. 1 Wits. Rep. 155. 2 Saund. 101. 5 Johns. Rep. 98.
    
      Crary, contra, insisted that the averment was material; and even if it was not material, that haying been made, it ought to have been proved, and that the variance was therefore fatal. He cited 3 Wm. Bl. 1001. 3 Bos. <?• Pull, 456. 2 East, 452.
   Per Curiam,

The variance was immaterial. No other place than Salem is mentioned in the record. The place of holding the court is fixed by public statute, and it must be known to have been at Salem. The judgment ought to be reversed.

Judgment of reversal. 
      
       Van Ness, J. was absent from indisposition.
     