
    PEMBERTON, &c. vs. SEARCE.
    April 13th.
    A variance as to the. dcdaiauon PenaltX uaídonTllnori
    .AvAn*n‘eMt® thejudgme"*& execution is not.
    a jhdgme'are-covo ed by an afli£ne>’» 'and óf «¿«-⅜⅛
    SEARCE, as assignee of Dudley Mitchum, brought a suit against Pemberton, &c. on a penal bond, dated the 23rd day of April, 1802, T he penalty was for 455/. 16s. “to be paid on or before the first day' of next June.” The condition was for the payment of 227/. 18s. on before the first day of J une next.
    The plaintiff declared on the penalty in the usual manner, except that it alleged that the said sum of 455/. 16í. was to be paid “- whenever they should be thereunto required,”
    The defendants did not plead to the action ; :but on a writ of inquiry being executed, in which one penny damage was assessed, judgment was entered for 455/, 16s. the debt in the declaration-mentioned, and costs ; but the judgment to be discharged by the payment of.227/, 8s. with interest, &c. ,
    An execution issued on this judgment for. 455/. 1(⅛., and costs, “ which William Scarce late in our Franklin circuit court recovered,” &c. endorsed that it w?is .to be, discharged by the payment of 227/., 18s. with interest» &c. by virtue of which a replevy bond was taken,
    
      A writ of error was prosecuted, and it was assigned for error that there was a variance between the dedaration and bond as to the time when the penalty was payable — that there was a variance between the judgment and execution, the judgment being entered to be discharged by 2271. 8s. and the execution by 2271. 18s. — 5 and that the execution was defective in not reciting that Searce was assignee of Dudley Mitchum. Thp following was
   The Opinion of the Court. — The fixing a day of payment in the teneri of the bond, is unusual, if not nonsensical, and can only be considered as surplusage — the day of payment being also fixed in the condition ; for if the day fixed in the teneri and condition had been different, that in the condition must govern. The variance stated in the first error, is therefore immaterial ; nor is the variance between the judgment and execution, as to the sum, material — there being enough in the record to, amend by, the judgment will be considered as amend-e<l ( ) > hut the variance between the execution and the proceedings and judgment in the cause, in not stating William Searce to be assignee of Dudley Mitchum, must be fatal, because it does not appear to have issued on that judgment, nor any- other.

Judgment reversed. 
      
      (a) 2 Wafh. 134-5.
     
      
       In Mulroy vs. Hensley, fpring term, 1810, a fimilar variance was held fa, tal on oyer and demurrer.
     
      
      
        Quere, and fee Palmer and Cafey vs. M'Ginnefs, poft.
      
     