
    
      The State for C. & G. H. Kelsey & Halstead vs. W. A. Rosborough, administrator.
    
    Where, in an action on a sheriff1's bond for an escape, the declaration, in setting out the names of the plaintiffs in the ca. sa. alleged the name of one of them to be George H. Kelsey, and in the ca. sa. offered in evidence the letter H. in his name was omitted. Held that, as the ca. sa. was not the gist of the action, it was sufficient to set out the substance of it, and, therefore, that the variance was immaterial.
    The giving of bills, notes and other choses in action, on account / of a previous debt, is no payment, unless they be expressly accepted / as payment, or produce payment, or unless the creditor part with . them; and it seems that, in an action on the original debt, the onus f of showing that the bills, notes, &c. produced payment, lies on the defendant.
    
      Before EvANs, J. at Chester, July, extra Term, 1845.
    The report of the presiding Judge is as follows.
    
      “ This was an action on the official bond of - D. G. Ca-been, late sheriff of Chester, for the negligent escape of one Polly. The plaintiffs, Kelsey and Halstead, had a judgment, by confession, against Polly & Cassels, for about $1957, with interest from the 6th April, 1839, on $1,720 58. All their property had been sold under older cases. In the ca. sa. the plaintiffs are styled Charles Kelsey, George Kelsey and Job H. Halstead. In the declaration in this case, in assigning the breach of the bond, they are styled Charles Kelsey, George H. Kelsey and Job H. Halstead, otherwise called C. & G. H. Kelsey & Hal-stead. This is the variance mentioned in the defendant’s notice of appeal, for which a motion for a non-suit was refused. There were five pleas. 1. Performance. 2, Denial of escape. 3. No arrest. 4. The escape was with the consent of the plaintiffs’ counsel ; and 5. There was nothing due to the plaintiffs.
    “It appeared from Mr. McAlily’s evidence, that Polly & Cassels were wholly insolvent, and that most of their good debts had been assigned to other creditors. That on application to them, they assigned over all their remaining debts by schedule, to the plaintiffs, to be applied to pay their debt, if so much was collected. The notes amounted to 700 or 800 dollars, and the accounts to $1,900. By an arrangement between Kelsey and Cassels, the latter was to take the books and collect what he could or liquidate the debts. Cassels took some few notes and delivered them to McAlily, but what became of the balance no account was. given. Cassels was said to be dead, and McAlily thought the greater part of these book debts were worthless. V Enough was received from the notes by McAlily and Mr. Hemphill, to reduce the debt to about $1,456. Polly hav- ^ ing been arrested by other creditors, McAlily, as attorney for the plaintiffs, lodged a ca. sa. with the sheriff, as he . said, to entitle his clients to come in, should Polly make an assignment.
    “I thought there was’ no doubt Cabeen was liable for • the full amount due by Polly & Cassels, and interest due thereon. The only question was, what was due. I thought the delivery of the books of account, after the assignment, to Cassels, constituted him the plaintiffs’ agent, and they were responsible for his acts. If, therefore,' he received any thing, or the debts had been lost by his negligence, the plaintiffs were responsible, and such amounts should be credited on the judgment. These debts,-though not received in satisfaction, were taken as collateral security, and I thought it was at least as much, if not more, the duty of the plaintiffs to shew they never had been productive of any thing to them; and in the absence of any satisfactory proof on this point, the jury might allow some deduction of the debt, if there was any evidence which could enable them to say, that the debts unaccounted for, were of any value. The jury found a verdict for the plaintiffs, for such a sum as shewed they did allow something for the debts which had been delivered to Cassels to collect or liquidate.”
    The defendant appealed, and now renewed his motion for a nonsuit, on the ground that the records, produced in evidence, did not correspond with the allegations set out in the declaration.
    
      The plaintiffs also appealed, on the ground of error in the instructions of the presiding Judge, in relation to the liability of the plaintiffs to account for the books and accounts placed in their hands.
    
      Williams & Clarke, for the defendant.
    
      Hemphill, contra.-
   Curia, per Frost, J.

Among the grounds of appeal presented by the defendant, he has only insisted, in this court, on that for a non-suit.

If the ca. sa. had been the cause of action, a variance between the descriptive statement of it in the declaration , which would have been necessary, and the instrument, when produced in evidence, would have been a good ground for non-suit. But this was an action against the administrator of the sheriff, for an escape. The negligence of the sheriff is the gist of the action. It was not necessary that the allegation of the ca. sa. in the declaration should have been descriptive. It was sufficient to set out the substance of the execution ; in which case “ a variance between the allegation and the instrument of evidence will not be fatal, provided the allegation be substantially proved.” 1 Phil. Ev. 213. In Cunningham vs. Kimball, 7 Mass. R. 65, it was held that, in an action for a false affirmation in the sale of property, a variance between the contract, as set forth in the declaration and as proved, was immaterial; the whole gist of the plaintiff’s action being the defendant’s fraudulent affirmation. It was conceded to be otherwise, if the action were founded on the contract, and the gravamen were the non-performance thereof by the defendant.

The clerical error in omitting the middle letter of the name of George Kelsey, is no substantial variance in the execution from the statement in the declaration, and no sufficient ground for a non-suit.

The plaintiffs except to the instructions of the presiding Judge to the jury, by which they were authorized to give credit to the defendant for receipts by the plaintiffs, from the assigned assets,'beyond what was proved to have been received,

The giving of bills, notes and other choses in action, on account of a previous debt, is no payment, unless they be expressly accepted as payment or produce payment; Costello vs. Cave & Bradley, 2 Hill, 528 ; or unless the creditor part with the note or bill which had been delivered to him in payment; Chastain vs. Johnson, 2 Bail. 574. Mere proof, therefore, of the delivery of certain notes and accounts by Polly Cassels to the plaintiffs, on account of their claim, does not support the defence of payment. The plaintiffs admitted receipts from the assigned notes and accounts sufficient to reduce their demand to $1456. No proof was produced by the- defendant of any receipts by the plaintiffs beyond what they had admitted, nor of any loss through the negligence of the plaintiffs in collecting the assets. Such proof was necessary on the part of the defendant, in order to give him a claim for a larger credit than was admitted by the plaintiffs. The assets were placed in the possession of the plaintiffs to collect and apply in payment of their demand against Polly and Cassels. The claim of the defendant against the plaintiffs in respect of these assets, was money had and received to his use. In an action for money had and received, the plaintiff must prove a particular sum to which he is entitled. This was ruled in Harvey vs. Archbold, 3 B. & C. 626.

The verdict having charged the plaintiffs with receipts on account of the notes and accounts beyond what was admitted by them, without any proof of greater receipts or of any loss by their negligence, a new trial must be granted.

íLichahdsoN, O’Neall, Butler and Wardlaw, JJ. concurred.  