Comstock vs. Draper.

said to have imparted to the debt any support, did it not pass away with that by which it was sustained? I think it did. Considerations and principles of a higher character than such as would be applicable to the case of a private frand (cited above) must prevail.

I was somewhat puzzled at first to discover how the effect claimed for the judgment was to be obviated, but on [485*] looking into the decisions *of the King's Bench, I think it will be found that no insuparable barrier is

presented by the judgment.

In the case of Ribbans v. Crickett, 1 Bos. and Pul. 264, plaintiff furnished victuals to voters, which was unlawful. On being sued, defendant paid money into court but the court would not allow it to be applied in payment of the illegal contract. Here the payment of money into court was an admission of every cause of action, either well or ill pleaded, which could be the subject matter of a promise. This was a subsequent promise in effect, and of the most binding character; for paying money into court enures to the benefit of the plaintiff even in cases where there is no consideration.

In Aubert v. Maze, 2 Bos. and Pul. 371, the plaintiff had paid the difference in certain unlawful insurances, after the transaction was passed, and sued for the balances, and though arbitrators awarded a sum due, the court set aside the award. Lord ELDON held there was no difference between paying the money generally in the adventure and paying at the express request of the defendant; that being one remove from the illegal transaction does not alter its nature; it is still connected with it.

In the case of George v. Stanley, 4 Taunt. 863, defendant lost money at play, and gave notes for it, which were passed to the plaintiff by the payee. They fell due, and he gave the plaintiff other notes in lieu thereof, and being unable to meet these, he confessed a judgment, execution was issued and the money was made. After all this, the court suffered an issue to be made to see if the plaintiff could be implicated or charged with notice.

Comstock vs. Draper.

In De Begnis v. Armistead, 10 Bing. 107, plaintiff and defendant carried on a theater in London which was unlicensed; plaintiff was to pay certain matters and defendant certain other specific expenses. Plaintiff paid, at the request of defendant, several sums for him. After the whole transaction was ended a settlement was made, and defendant gave his acceptance for the sum due. Held, that as the debt originated in illegality, the subsequent settlement and acceptance were illegal and void.

These cases show that courts have gone far to sustain a defense to an illegal contract, or a contract remotely connected with the illegality, if it spring from or is based upon it. A plaintiff is not permitted to get into court [486*] through an illegal contract. The court will not in any way aid a guilty party. The contract is still executory.

If I am correct in these views, the canclusion follows that plaintiff in error should have judgment upon the demurrer. Judgment reversed.

599

HARRINGTON VS. WORDEN.

VARIANCE. - In an action on a warranty of a span of horses, the declaration stated the consideration to be a yoke of oxen of the value of $80, and a note for $20, aud on the trial it appeared that the note was for $10 only. The variance was held to be fatal.

Had the averment been, the sale was for a valuable consideration, to wit: for one yoke of oxen and a note for $20, it would not have been necessary to prove with precision the items of the specification.

NOTE. The doctrine of this case, though highly technical, is fully sus tained by the current of American authorities, as well as by those cited in the opinion, Tillman v. Fuller, 13 Mich. 113; Underwood v. Waldron, 12 id. 73. See also Board of Supervisors, etc., v. Coffenbury, supra, 355; Thatcher v. W. R. National Bank, 19 Mich. 196; Brooks v. Lowrie, 1 Nott & M. (S. C.) 342. The decision is based on the point that the consideration should have been averred under a videlicet, if the pleader wishes the privilege of proving a different consideration than the one averred. In Brown . Berry, 47 Ill. 175, in a suit for a breach of contract to sell a farm and cattle and hogs for $20,000, the failure to prove the agreement as to cattle and hogs as averred, was held not a variance because alleged under a videlicet.

Harrington vs. Worden.

ERROR to Oakland Circuit Court.

Worden sued Harrington in the circuit court on a warranty of a span of mares. The declaration stated, that in consideration Worden would, at the special instance and request of Harrington, buy of him a certain span of mares, Harrington undertook and promised that the mares were sound, except in one fore foot, etc., and that Worden, confiding in the promise, bought the mares, and gave in exchange therefor one yoke of cattle of the value of $80, and a note for $20, etc. Defendant plead the general issue. On the trial the plaintiff proved a breach of the warranty, and that he gave for the mares a yoke of oxen and a note for ten dollars only. Defendant [488*] asked the court to charge *the jury, that as the plaint

iff had failed to prove the value of the oxen as alleged in the declaration, he could not recover. The court stated to the jury it was not necessary to prove the value of the oxen. Defendant then requested the court to charge the jury that, inasmuch as the plaintiff had not proved the consideration as stated in the declaration, they must find a verdict for defendant, which the court refused to do, and the defendant excepted. A verdict was returned for the plaintiff, and judgment having

In Prescott v. Gayler, 32 id., 312, the terms, and date, and time of fulfill-` ment of a promise of marriage were allowed to be proved liberally because alleged under a videlicet. In Searing v. Butler, 69 id. 575, a degree of lib. erality was allowed as to matters not alleged under a videlicet. See also Reinback v. Crabtree, 77 id. 82.

In Wisconsin, under the code, no variance is material unless the court is satisfied that it has misled the opposite party to his prejudice on the trial, Fox R. V. R. R. Co. v. Shoyer, 7 Wis. 365; Knowlton v. Bowron, 7 id. 500; Herrick v. Graves, 16 id. 157; Eastman v. Bennet, 6 id. 232; Fisk v. Tank, 12 id. 276. Omission to state conditions in insurance policy, Bonner v. Home Ins. Co., 13 id. 677. But see where the pleader professes to give the legal effect and operation of the contract, and gives it incorrectly — held fatal, Fairbanks . Isham 16 id., 118, though he sets it forth in its own words. Id. A declaration intending to state a cause of action on contract, may be held good as a declaration for a tort. Vilas v. Mason, 25 id. 310; see also N. W. Iron Co. v. Etna Ins. Co., 26 id. 78; Buckland . Wilson, 28 id. 581. "Cured and pickled hams" not a misleading variance from "fresh packed hams," Leopold v. Vankirk, 29 id. 548; Harper v. City of Milwaukee, 30 id. 365.