#### James Nowlin, Plaintiff in Error, v. John Bloom, Defendant in Error.

ERROR TO ST. CLAIR.

Where a record is not the foundation of the action, a variance between the description of it in the narr. ,and the one produced is immaterial, e. g. if the narratio describes it as a record in a case of forcible entry and detainer, and it is a record in a case of peaceable entry, and forcible detainer, the variance is immaterial.

Cowles, for plaintiff in error.

Blackwell, for defendant in error.

Opinion of the Court by

Justice Browne.

The plaintiff below, being a witness in an action of forcible entry and detainer, between one John Goodlier and the said John Bloom which was tried before Edward P. Wilkinson, and James Mitchell, Esq., justices of the peace for St. Clair county, the said John Bloom charged the said James Nowlin with having sworn false on the said trial.

The defendant below filed three several pleas to the plaintiff’s declaration: 1. Not guilty: 2. The statute of limitations : 3. Justification. To which pleas, the plaintiff took issue. At the trial, the plaintiff below offered as evidence a record of peaceable entry and forcible detainer. The record corresponded in every other particular with the one referred .to in the plaintiff’s declaration, which record, the court below decided ought not to have been received in evidence, and set aside the verdict and directed a nonsuit on account of the variance.

This record was not the foundation of the action, but was only brought in collaterally to prove another fact, and for that purpose, was sufficiently described in the declaration.

The court below, therefore, erred in setting aside the verdict on that ground, because the record was properly before the jury-

For which reason, the judgment of the court below is reversed and sent back to render judgment on the verdict. (a), (1)

Judgment reversed.

(a)

In an action for a libel the plaintiff gave notice of justification with the general issue, stating that he would give in evidence at the trial, a record of the trial before the sessions of the term of June, 1810; the record produced was of June, 1809 ; but the variance was immaterial. Brooks v. Bemis, 8 Johns., 455.

(1)

See note to Taylor et al. v. Kennedy, ante, p. 91.