Bv the Court
Williams, J.This was an action of debt brought upon a judgment obtained by the defendant against the plaintiff in error in the Circuit Court of Adams county, in the State of Illinois. The-declaration in the Court below sets forth the amount of the said judgment tobe $834 41, ad-judgedto the plaintiff below, ‘for his damages which he had sustained as well by reason of the non-performanoe by the said defendant of certain promises and undertakings entered into by the said defendant to .the said plaintiff before the sitting of said Court, as for his costs aud charges by him, the said plaintiff, in said suit expended.” The record produced on the trial showed a judgment for $834 41 damages besides his costs. ' This variance was objepted to on the trial, but the Judge overruled the objection, and judgment was rendered for the plaintiff'below; to reverse which the cause has been brought into this Court by a writ of error.
On the part of the defendant, in error, it is contended that the variance objected to is not such as to prove fatal on the trial — that the effect of it was merely to diminish the amount of the judgment which would otherwise have been rendered against the defendant below, and that it was therefore wholly for his advantage. If these positions are all tenable, the judgment below must be affirmed:- for this Court would never disturb such a judgment on account of an error clearly in favor of the party seeking a reversal.
So far as concerns the present suit merely, there is no doubt but the variance objected to operated beneficially to the defendant below. The plaintiff claimed $834 41 for his damages and costs recovered in the Adams County Court. His recovery in the Court below must have been limited to that sum, whereas, if he had stated his claim truly, and produced the requisite evidence, he might, in addition thereto, have recovered the-costs of the original suit.
But this same argument might have been used if the declaration had described the original judgment as'having been for $500 instead of $834 41. In that case, however, the ready answer would be suggested that such á recovery would not be a sufficient protection against subsequent suits for the same subject matter. Would that same answer be applicable to the present argument?
Had the declaration been silent as to whether the amount set forth were for damages and costs, or for damages only, it would have been sufficient. The case would then have been brought within the rule laid down in Story's Pleadings, page 336, and followed in the case of Adair's Adm'r. vs. Rogers' Adm'r., Wright's Ohio Rep. 428. But in the present case, the declaration is not silent *18as to costs, but it expressly avers that the sum of $834 41 is the amount of damages as well as costs. It is true the amount of those costs does not appear, but we are bound to presume they were something, and, consequently, the amount of the judgment described in the declaration must have been essentially different from that in the transcript produced on the trial. The reason of the rule in Story’s Pleadings appears to be that costs are an appendage to, rather than a material portion of the judgment. Had the declaration been silent as to costs, and had the amount of the original judgment as therein stated been found exactly equal to the damages alone as set forth in the transcript, there would have been no essential variance. The same would probably also have been the case, if the amount set forth in the declaration had been exactly equal to the damages and costs both, as stated in the transcript. In either of these cases, the exact correspondence of suras would have furnished so strong a presumption of identity as sufficiently to protect the defendant from a subsequent suit on the same judgment.
But in the present case, although there is this exact correspondence of sums, the identity is negatived by the express averment, that the one is the amount of damages and costs, and by the strongest evidence that the other is the amount of damages only. The judgment described and that produced in evidence are essentially different, and there is weight in the argument, therefore, that if the defendant below were again tobe sued on the same judgmentjhe would find much difficulty in defending himself by producing proof of the recovery had against himhere. Although, therefore, we are resolved to lend no countenance to those unmeaning technicalities and absurd quibbles, which, much to the discredit of the legal profession and the prevention of justice, have in some countries been tolerated and even fostered, we are compelled to respect a salutary rule, although iu some instances it may operate with severity and even with seeming injustice.
In coming to this conclusion, we find ourselves sustained by the highest authorities. The slightest variance in any essential portion of the description of a written instrument or of a judgment has always been held fatal, unless it should conclusively appear that the mistake could not operate prejudicially to the party wishing to take advantage of it. Many of the cases cited by the counsel for the plaintiff in error sustain this position, and none of those produced on the other side seem to contradict it. The judgment below will therefore be set aside and a new trial ordered.