The opinion
Mr. Justice McAllister, dissenting: I can not concur in the opinion of the majority of the court, so far as the first count is concerned. The words of that count, upon which the variance must be predicated, are: “ For that, whereas heretofore, to wit, on the 30th day of August, A. D. 1869, at the city of New York, to wit, at said county, the said defendants, upon application, <fcc., made a certain policy of insurance, &c.”
The date alleged is merely formal, and not descriptive of the instrument. In such case the rule is, “that if the date alleged be merely formal, and if it be prefaced by a videlicet, and therefore be not descriptive, it may be proved to have been made on another day, and the variance will not be fatal.” 1 Stark. Ev. 487; Stephen on Pl. 293; 1 Chit. Pl. 257-8.
In Coxon v. Lyon, 2 Camp. 307, the declaration stated “that defendant, on the 3d day of February, 1810, according to the usage and custom of merchants, made his certain bill of exchange,” <&c. The bill being produced, appeared to be dated the 6th Feb., 1810. This was held no variance.
I do not consider the case of Walker v. Welch, 13 Ill. 674 , as having any direct application.