STATE v. REYNOLDS, 1 Del. Cas. 398 (1796)

Bayard’s Notebook, 140

STATE, for the use of E. REYNOLDS, v. HENRY REYNOLDS.

Court of Common Pleas of Delaware, Kent County.
July, 1796 (Adjourned).

Scire facias sur recognizance given in the Orphans’ Court by defendant upon his accepting the lands of Richard Reynolds, deceased. Plea, nul tiel record.

Upon the trial before the Court, Miller objected: first, th scire facias contains the words “their several and respective shares of the valuation money of the landed estate of the said Richard Reynolds, deceased,” which words are not in the recognizance; secondly, it is the joint and several recognizance of H. Reynolds, and H. Moleston, and the scire facias is against defendant solely. These variances he insisted were fatal upon the plea o nul tiel record, and he cited Doug. 93 and 4 Term 558.

BASSETT, C. J.

A scire facias upon a recognizance is in nature of a declaration. The scire facias need not follow the words of the recognizance. It is sufficient if it is according to its legal effect and import. The first objection regards words which may be considered as surplusage and therefore may be rejected. And as to the second, the recognizance being several, scire facias against one recognizor is good, and so is the case in [2] Esp.N.P. 743.

Page 399

JOHNS, J.

A variance which is not substantial cannot be fatal. If the record is in effect the same with the scire facias, there is no variance. A variance must be in the sense in order to be material.

Judgment for plaintiff.

Fisher and Bayard for plaintiff.