¶1The court declared their opinion, that though in setting out a record, deed or written contract, which is the foundation of the action, the party must state it correctly, and a small variance is fatal, because the allegata et probata must agree; yet, in the present instance, the judgment in Belmont county being set out only by way of inducement, and not as the ground of the suit, the variance in the declaration from the record given in evidence is wholly immaterial; and therefore the plaintiff is entitled to judgment.
3 Yeates 575
Repsher v. Shane
Decided October 15, 1803
Supreme Court of Pennsylvania · decided 1803-10-15
Case. The plaintiff’s declaration contained three counts. The first was in special assumpsit, and stated that “ whereas on * m *“the 1st June 1800, at Steubenville, in consideration 5' J “that the said Jacob, at the special instance and request “of the said James, would convey to the said James a certain “house and lot in Steubenville aforesaid, situate, &c., he the “said James took upon himself, and then and there promised “the said Jacob, that he the said James would…
Decided 1803-10-15