#### *Friend v. Woods.

July Term, 1852,

Lewisburg.

(Absent Lee. J.)

Appeal Bonds — Costs—Variance between Declaration and Bond — Case at Bar. — In an action on an appeal bond, the declaration states under a scilicet, the costs at a certain sum, and makes profert of the record of the Court of appeals. The defendant craves oyer of the record, and demurs generally. The record is properly set out in all respects; but the costs endorsed by the clerk of the Court of appeals is less than the sum stated In the declaration; that sum including the costs for entering the judgment of the Court of appeals in the court below, and issuing the execution upon it. Heed:

ist. Same — Same—Same—Same.—The profert of the record did not extend to the endorsement of the costs by the clerk, and the variance as to the costs was no ground of demurrer.

2d. Same — Same—Same—Same.—There was no variance, as the costs in the court below were properly embraced in the demand in the declaration.

This was an action of debt upon an appeal bond, brought in the Circuit court of Kanawha county by Wiley P. Woods against Thomas R. Friend and Joseph Friend. The defendants craved oyer of the record of the Court of appeals of which profert was made, and then demurred generally to the declaration. The ground of the demurrer seems to *30have been for a supposed variance between the amount of the costs in the Court of appeals as stated in the declaration, and the amount 'endorsed by the clerk of that court upon the copy of the decree sent to the court below. ' The declaration stated the costs to be 28 dollars 59 cents. The costs endorsed by the clerk were 26 dollars 91 cents; but the clerk of the Circuit court added for recording the judgment of the Court of appeals and issuing execution, 1 dollar 68 cents, thus making the sum of 28 dollars 59 cents. The court below overruled the demurrer ; and there was a verdict upon a writ of enquiry *of damages, and a judgment for the plaintiff. Whereupon Joseph Rriend applied to this court for a supersedeas, which was awarded.

There was no counsel for the appellant.

Fry, for the appellee.

DANIEL, J.,

delivered the opinion of the court.

The court does not deem it necessary to express any opinion on the question, raised at the bar by the counsel of the defendant in error, whether upon the supposition of the existence of the alleged variance between the record vouched in the declaration and that exhibited in reply to the oyer the proper mode of taking advantage of such variance was not by plea of nul tiel record instead of by demurrer; as it seems to the court that there is in fact no such variance.

The verification by the record, or prout patet per recordum in the declaration, cannot be properly regarded as extending to the ^averment in respect to the amount of the costs. The judgment of the Court of appeals properly ascertained by and to whom the costs were to be paid; but fit was no part of its function to fix the amount of the costs. That was a matter to be determined not by a reference to the record of the judgment of the court, but to the certificate of taxation made at the foot of the transcript of the record. The allegations in the declaration are to be construed in reference to this well known state of things; and the averment as to the amount of the costs is, in this view, no part of the description of the judgment. Consequently no variance would be established by showing that the amount of costs averred differed from that taxed. There is in fact however no difference between the amount of the costs averred and that certified. It is true that the declaration avers under a scilicet that the costs amount to the sum of 28 dollars 59 cents; and the *clerk of the Court of appeals certifies that they amount to the sum of 26 dollars 91 cents; but on the back of the transcript of the record is a certificate of the clerk of the Superior court of Kanawha, that the costs incurred by the defendant in recording the judgment of the Court of appeals in the Superior court and in issuing execution, are 1 dollar 68 cents. This last sum is a proper charge as constituting a part of the costs of the defendant in his defence expended; and when added to the amount taxed by the clerk of the Court of appeals, makes an amount identical with that averred i'n the declaration.

No other variance is alleged in the petition' or suggested at the bar; and the court on an inspection of the record perceives none. The court is therefore of opinion that there is no error in the judgment, and that it ought to be affirmed with costs.

Judgment affirmed.