¶1In these motions, the question before the jury is not merely with reference to the collection of the money, but also is, whether it was collected by virtue of the particular execution which the plaintiff undertakes to describe in his notice. The consequence is, that when there is a misdescription of the execution, that is a fatal defect. In the present case, the evidence seems to have left it doubtful whether the money was collected by virtue of an execution against Austin Smiley, or by virtue of one against him and another person. This doubt was proper to be solved by the jury, and therefore, we think the court erred, in charging that they could not consider the question of variance.
¶2Judgment reversed, and causo remanded.