Carter v. Preston & Stetson

Citations

• 51 Miss. 423

Syllabus

<p>Practice : Pleadings : The declwration must describe the note sued, on.</p> <p>P. & S. sued C. on a note, described in the declaration as executed in Jasper county, Mississippi, when in fact, the note was executed in Mobile, Ala. On the trial, objection was made to the reading of the note in evidence. Held, that the variance was fatal; the note dated and executed in Mobile was not the note described in the declaration. The general rule is, that the allegata et probata must agree. The place is material, because it is made so by the averments of the declaration by way of description. Where the place is alleged as a matter of description, and not as venue, it must in all cases be stated truly, and according to the facts, under peril of variance, if the matter should be brought into issue.</p>