VARIANCE - A disagreement or difference
between two parts of the same legal proceeding, which
ought to agree together. Variances are between the
writ and the declaration, and between the declaration
and the evidence.
When the variance is a matter of substance, as if
the writ sounds in contract, and the other in tort,
and e converso, or if the writ demands one thing or
subject, and the declaration another, advantage may
be taken of it, even in arrest of judgment; for it
is the writ which gives authority to the court to
proceed in any given suit, and, therefore, the court
can have no authority to hear and determine a cause
substaatially different from that in the writ. But
if the variance is in matter of mere form, as in time
or place, when that circumstance is immaterial, advantage
can only be taken of it by plea in abatement.
A variance by disagreement in some particular point
or points only between the allegation and the evidence,
when upon a material point, is as fatal to the party
on whom the proof lies, as a total failure of evidence.
For example; the plaintiff declared in covenant for
not repairing, pursuant to the covenant in a lease,
and stated the covenant, as a covenant to "repair
when and as need should require;" and issue was
joined on a traverse of the deed alleged. The plaintiff
at the trial produced the deed in proof, and it appeared
that the covenant was to "repair when and as
need should require, and at farthest after notice:"
the latter words having been omitted in the declaration.
This was held to be a variance, because the additional
words were material, and qualified the effect of the
contract. But a variance in mere form or in matter
quite immaterial, will not be regarded.
