Variance

A disagreement or difference between two parts of the same legal proceeding which ought to agree together. Variances are between the writ and the declaration, and between the declaration, or bill in equity, and the evidence.

— Variance in matter of substance is fatal to the action; Stephenson v. Mansony, 4 Ala. 3J9; Lawrence v. Knies, 10 Johns. (N. Y.) 141; and is ground for demurrer or arrest of judgment; Wilbur v. Brown, 3 Den. (N. Y.) 356; Christian Bank v. Greenfield, 7 T. B. Monr. (Ky.) 290; but if in matter of form merely, must be pleaded in abatement; Humphreys v. Collier, Breese (111.) 298; How v. Mc Kinney, 1 Mc Lean 319, Fed. Cas. No. 8,749;

— or special demurrer; Sargent v. Hayne, 2 Hill (S. C.) 585; and a variance between the allegations and evidence upon some material points only is as fatal as if upon all; 7 Taunt. 385; but, if it be merely formal or immaterial matter, will be disregarded; Ferguson v. Harwood, 7 Cra. (U. S.) 408, 3 I* Ed. 386.

The court may allow a troducing any other cause of action or affecting the merits of the case between the parties; Gormley v. Bunyan, 138 U. S. 623, 11 Sup. Ct 453, 34 L. Ed. 1086. Slight variance from the terms of a written instrument which is professedly set out in the words themselves is fatal; Ilampst.

294.

It is too late after plea to take advantage of a variance between the description In the writ and the declaration of property replevied; Reeder v. Moore, 95 Mich. 594, 55 N. W. 436. Where, in an action on a contract, the pleader did not set out the exact words of the contract, and a different contract expressed in different words was proved, there is no real variance, as the difference between the declaration and the proofs must be real and tangible to constitute a variance; Beckwith v. Thompson, 63 Fed. 232, 11