
    Matthias Fulcord v. Samuel Hamberlin, et al.
    Wherever an instrument offered as evidence in a civil suit, differs so little from that described, as not to be likely to produce any detriment to the opposite party, either in the then pending or in any future controversy, the evidence as a general rule should not be excluded.
    In a motion against a sheriff and his sureties, .an execution differing from that described in the notice, by the amount of sixty-two and one half cents in the statement of costs, should not be excluded as evidence.
    Where in a motion against a sheriff, the execution offered in evidence differed slightly from the one described in the notice, the circuit court, in the exercise of its discretion, would no doubt permit an amendment of the notice, to produce correspondence.
    In error ; from the circuit court of Franklin county.
    Matthias Fulcord, at the May term, 1842, of the circuit court of Franklin county, entered a motion against Samuel Hamberlin, the sheriff of Madison county, and James S. Prichard, Nathan B. Whitehead, and John B. Moore, his sureties in his official bond, to pay to the plaintiff in the motion, the amount of a judgment in his favor, rendered in the Franklin circuit court, at the October term, 1838, against John G. Middleton, for the sum of five hundred and sixty-four dollars damages, and fifteen dollars and sixty-two and a half cents costs; upon which judgment an execution had issued to the said sheriff of Madison county, and had been returned by him, levied, forthcoming bond taken, and bond forfeited; upon which forfeited forthcoming bond, an execution of fi. fa. issued to Madison county, was received by the sheriff, and was not executed and returned according to law.
    The notices were duly served, and on the trial the plaintiff in the motion offered an execution reciting the amount of costs as being fifteen dollars, instead of fifteen dollars and sixty-two and a half cents, as stated in the motion. This execution was objected to on account of the variance, and the court below excluded^ the plaintiff sued out his writ of error, and now assigns the exclusion of the execution for error.
    
      Montgomery and Boyd, for plaintiff in error.
    We would respectfully submit that the learned judge who presided on the trial of this motion, could not have been aware of the decisions of this court, or he would not have deemed so trifling a variance between the notice and proof, of any importance whatever. See Lewis v. Garrit's adm. 5 How. R. 458.
    The record in this case shows enough to warrant this court in reversing the judgment, and giving the same judgment which the court below should have given.
    
      Oscar J. E. Stewart, on the same side.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a notice in the circuit court of Franklin county, made by the plaintiff in error against the sheriff of Madison county and his sureties iu office. The court rejected the execution which was offered in evidence, because it was different from that described in the- notice, by the amount of 62| cents in the statement of costs. The plaintiff in error excepted to the opinion of the court, and brought a writ of error.

It is not easy to lay down any general rule on the subject of variance. A growing spirit of liberality prevails in this, as well as in most other points of practice. Wherever the instrument offered in a civil suit differs so little from that described, as not to be likely to produce any detriment to the opposite party, either in the then pending or in any future controversy, we think it better, in general, not to exclude it. We are of opinion, in this instance, that the execution should have been admitted, and therefore reverse the judgment.

We cannnot refrain from remarking, that a much more easy, expeditious, and, in every way preferable remedy to a writ of error, was within the reach of the party. Upon application, the court below would no doubt have permitted an amendment of the notice, and would have imposed at most a continuance of the cause to the next term as a condition. In that mode, time, trouble, and expense would have been saved to all parties concerned.'

Judgment reversed, and cause remanded.  