
    *Beasley v. Robinson & als.
    January Term, 1874,
    Richmond.
    i. Action on Bond—Variance.—A notice is addressed by B to R, late sheriff, and his surviving: sureties by name, survivors of themselves and James Sims. On the trial B introduces the bond which is signed by R and all the surviving sureties; but it is objected to as evidence because the name described in the address of the notice as James Sims is written Jos. Sin. This is not a material variance. and the bond should be admitted as evidence.
    2. Same—Evidence.—The court having- excluded the bond for the variance, B proposes to introduce the record of the court setting- out the ctualification of It as sheriff, and the names of his sureties, of whom James Sims is one, who signed, sealed and acknowledged said bond. But the defendants objected to the introduction of said evidence and the admission of said bond. The record is proper evidence and should be admitted.
    3. Same—Variance—Immaterial.—If it could be considered a case of variance between the pleadings and the proofs, it would have been such an one as might and ought to have been cured by an amendment, according to the Code of 1860, ch. 177, § 7.
    This is a supersedeas to a judgment of the Circuit court of Greene county, rendered on the 18th day of June 1873, on a motion made by the plaintiff in error, Beasley, against the defendants in error, Robinson, and his surviving sureties as late sheriff of said county, for certain sums of money, directed by the County court of said county to be paid by said sheriff to said Beasley, out of the levy of said county. The motion was made under the Code of 1860, ch. 53, section 17, page 311. The ^notice is in due form, and was addressed “to Benjamin Robinson, late sheriff of Greene county,” and his surviving sureties by name, who are described as “surviving sureties of themselves and James Sims, deceased, on the official bond of said Benjamin Robinson.” The notice having been duly served on all the defendants, and the cause having been several times continued on the motion of the defendants, it came on at length to be tried on the 18th day of June 1873, when a jury empanelled in the case found a verdict for the defendants, and judgment was thereupon rendered accordingly.
    Two bills of exceptions were taken by the plaintiff, to opinions given by the court during the progress of the trial, and were made a part of the record. The 1st states, that upon the trial of the cause, the plaintiff, to maintain the issue joined on his part, offered in evidence to the jury, the official bond of Benjamin Robinson, sheriff of Greene county, dated the 15th day of August 1866, which is set out in haec verba, and is in due form, embodying the names of the sheriff and all his sureties, and with the names of the sheriff and all his surviving sureties, against whom only the motion was made, duly subscribed to the bond; but instead of the name of “James Sims,” the deceased surety, being fully subscribed to the bond, the name “Jos. Sin,” appears by the printed record to have been subscribed thereto. “Whereupon the defendants, by counsel, moved the court to exclude the said bond from the jury, because there is a variance between the bond described in the plaintiff’s notice, and that offered in evidence ; in this, that the bond described in the notice, is described as the bond of James Sims and the other obligors named in said notice, and the bond offered in evidence is the bond of Jos. Sin and the other co-obligors, and not the bond of James Sims and others; and it did not appear *to be the bond of James Sims. Which motion the court sustained, and excluded the said bond from going as evidence to the jury; to which opinion of the court the plaintiff excepted. ’ ’
    The 2d bill of exceptions states, that upon the trial of the cause, “the plaintiff, to maintain the issue joined on his part, and after the court had excluded the bond as set out in plaintiff’s first bill of exceptions, which bill is asked to be taken as a part of this bill, he offered to prove by the order-book of the County court of Greene, that the said James Sims appeared in said court, signed, sealed and acknowledged the said bond as his bond, which order is in the words and figures following, to wit: ‘Benjamin Robinson, who has been elected sheriff by the voters of Greene county for the period of two years, commencing on the 1st of January 1867, appeared in court, and took the several oaths required by law; and, together with Wm. R. Melone, George J. Stephens, Richard D. Melone, James M. Robinson and James Sims, his secufities, who justified as to their sufficiency, entered into and acknowledged a bond in the penalty of $30,000, payable to the commonwealth of Virginia, conditioned according to la.w. ’ And the defendants, by counsel, objected to the introduction of the said evidence, and to the admission of said bond, on the ground set out in the first bill of exceptions. Which objection the court sustained, and overruled the motion of the plaintiff, and again excluded said bond, and also the said order of the County court, and all evidence offered to prove that the said bond was the bond of the said James Sims. To which opinion of the court the plaintiff excepted.”
    Upon the application of Beazley this court awarded a supers'edeas to the judgment.
    *Rield and Gray, for the appellant.
    Blakey, for the appellees.
   Moucure, P.,

The only question involved in this case is, whether the opinions of the court excepted to as aforesaid, or either of them, are erroneous. We are of opinion that both of them are.

Rirst. The court erred in excluding the bond on the ground of variance, when offered by itself without other evidence, as mentioned in the first bill of exceptions. There is no further description of the bond in the notice than is contained in its address, “to Benjamin Robinson, late sheriff of Greene county, and George J. Stephens, James M. Robinson, William R. Melone, R. D. Me-lone, surviving sureties of themselves and James Sims, deceased, on the official bond of said Benjamin Robinson.” The bond offered in evidence was the official bond thus described. There were inserted in the body of the" bond, the names of all the obligors, principal and sureties, to whom the notice was addressed. And there were subscribed to the bond, signatures and seals corresponding to the names of the obligors, so written ‘in the body of the bond, except that the name apparently intended for “James Sims” is obscurely or imperfectly written; and, as the defendants in error contend, is written, “Jos. Sin.” It is so written in the printed record. But the original bond ' has been brought before us by the clerk of the County court of Greene, upon a subpoena duces tecum; and upon an inspection of it,' we think the signature was intended for “James Sims,” and may as well be read “Jas. Sim,” or “Jas. Sims,” as “Jos. Sin.” It was evidently *written by 'a very bad writer, and' probably by an old man; and we know it is quite common, in such a case, that the name should be misspelt, or a letter be omitted by mistake. The name is written opposite the word “seal,” inserted in a scroll; and the end of the letter “m,” of the name “Sim,” appears to be written over the scroll; and immediately after the name “Sim,”'is written the word “seal”; the' first letter of which word serves well enough for, and may possibly have been adopted, by the signer as the last letter of the name “Sim” ; and thus the name “Jas. Sims” ’ would be perfected. But whether this be so or not, and even if we suppose the name as written is “Jas. Sin” or “Jos. Sin,” still we think that the bond ought not to have been excluded as evidence, and that the jury would have been well warranted in finding, from that evidence alone, on a-plea of-non est factum, that the bond was the bond of the obligors whose names were inserted in the body of it. The fact is, most of the names subscribed to the bond are imperfectly written. Indeed, - not one of them is perfectly written. In one there is a letter too many, and in another a letter too few. In all of them letters are put for Christian names, or those names are contracted. The name of James M. Robinson, appears to be written, “Jus. M. Robinson.’” Now, it might just as well have been said there was a variance in regard to all these names, as in regard to that of James Sims, only. But we know that these apparent variances, if they may be so called, are of every day’s occurrence, and they are not real or legal variances. The bond in this case was prima facie evidence, that it was the bond of all the parties whose names were inserted therein, and was apparently intended to be subscribed thereto; and that fact could not be controverted without an affidavit, that the instrument was not the deed of the alleged obligors *or some of them. Code of 1860, ch. 171, § 38, p. 713; Acts of 1869-70, ch. 271, p. 425.

Second. It follows as a matter of course, from what we have already said, that we think the Circuit court erred in excluding the evidence set out in the second bill of exceptions. Certainly, if the bond was not sufficient evidence of itself, in the absence of any affidavit to the contrary, that it was the bond of all the obligors therein named, the order of the court stating that they all appeared in court and entered into and acknowledged the bond, is the highest, to wit, record evidence of that fact. It appears, also, from the bill of exceptions, that other evidence was offered to prove that the said bond was the bond of the said James Sims; which evidence was also excluded. And it does not appear that a particle of evidence was offered on the other side to prove that the said .bond was not the bond of James Sims, or that there was any person in the world by the name of “Jos. Sin,” whose the signature could have been intended to be. A man may adopt a signature written for him by another person; or he may adopt his cross mark for his signature. Here James Sims made, or attempted to make, his own signature, and acknowledged it as such in open court.

But if this could be considered as a case of variance between the pleadings and the proofs, it would have been such a one as might and ought to have been cured by an amendment, according to the Code of 1860, ch. 177, § 7, which declares that “If, at the trial of any action, there appears to be a variance between the evidence and the allegations or recitals, the court, if it consider the same not material to the merits of the case, and that the opposite party cannot have been prejudiced thereby, may allow the pleadings to be amended on such terms as to payments of costs or postponement of trial, or both, as it may deem reasonable.”

*On every view of the case, therefore, we are of opinion that the judgment of the Circuit court is erroneous, and ought to be reversed and annulled; and that the. verdict of the jury ought to be set aside and the cause remanded for a new trial to be had therein, in conformity with the foregoing opinion.

The judgment was as follows :

The court is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in excluding the evidence mentioned in the first and second bills of exception, all of which evidence was admissible. Therefore, it is considered that the said judgment be reversed and annulled, and that the plaintiff in error recover against the defendants in error, his costs by him expended in the prosecution of his writ of supersedeas aforesaid here. And it is ordered that the verdict of the jury be set aside, and the cause remanded to the Circuit court for a new trial to be had therein ; on which trial the said evidence, if offered again, or such part thereof (including the official bond . in said bills mentioned) as may be offered again, shall be admitted.

Which is ordered to be certified to the Circuit court of Greene county.

Judgment reversed.  