Turney et al., etc., v. Young. up and reverted to the estate of Turney, deceased. The legal title was then vested in his heirs, who are parties here. Now to divest them of their title, it is a first and overruling principle, that they must have notice of some proceeding directly against them, for such purpose. They have had no notice, and this leads us to the consideration of the effect of Gates' judg ment, so called, and the sale of the land under it. Was this judgment revived against the administratrix, such a judgment as created a lien on the real estate of the deceased, and on which a fi. fa. could issue to sell it? We think not. It is not declared by the statute to have that effect. It has no preference whatever over debts by simple contract, and can be paid, not by execution, by which a preference, in spite of the law, would be obtained, but is to be paid in due course of administration, like any other debt against the estate. This was expressly decided by this court, in the case of Turney v. Gates, 12 Ill. R. 141, where that portion of this very judgment, authorizing this execution to issue, was reversed. We there say, that portion of the judgment awarding execution, was erroneous, but it was absolutely void, for the reason the court had no jurisdiction over the heirs to order a sale of their land, they never having been served with process of sci. fa., and were, in no sense, parties to it. The judgment had ceased to be a lien upon the land of the deceased, the title to which was vested in the heirs at law, and the court had no authority to revive the lien they lost, and the attempt to do so, without notice to the heirs, and terre-tenants if there were any, or a proper appearance by them, was void for want of jurisdiction over their persons. No judgment is valid, if the court rendering it, has not jurisdiction of the person, as well as of the subject matter, and this, on principles of natural justice. No man is to be condemned without the opportunity of making a defense, or to have his property taken from him by a judicial sentence, without the privilege of showing, if he can, the claim against him to be unfounded. The execution issuing upon this judgment therefore, gave the creditor no power to levy it on the real estate left by the deceased, the title to which, on his death, vested in his heirs at law, and they had no notice. The judgment, execution and sale, is, as to them, void. The judgment of the court below is reversed, and the cause remanded. Judgment reversed. Morton v. McClure. JAPHETH T. MORTON, Plaintiff in Error, v. ALLEN MCCLURE, ERROR TO CARROLL. Japheth and Japhath are too much alike, to constitute a variance. A party cannot recover a larger amount, than he claims by his bill of particulars filed with his declaration. He may amend his bill of particulars by leave of the court. Two unimpeached witnesses, sustaining a plea of set-off, is sufficient to sustain it. THIS was an action of assumpsit brought by said McClure against said Morton, in said County Court, at March term, 1858. Declaration contains a count alleging that on 1st February, 1858, defendant was indebted to plaintiff in $300 for use and occupation of rooms, apartments and furniture, by wife and children of defendant, and for meat, drink, attendance, and other necessaries and goods, provided for defendant's wife and children, at his request; and also the common counts for goods bargained and sold, goods sold and delivered, work done and materials furnished, money lent, money paid to use of defendant, money had and received, and money found due on account stated. There was a plea in abatement-misnomer of defendantdemurrer to which was sustained; also a plea of non-assumpsit and set-off. General replication. Plaintiff filed a bill of particulars amounting to $115.85. 66 66 66 66 The jury found for the plaintiff, $124.23. Defendant moved for a new trial. The court ordered judgment to be entered on the verdict, and thereupon defendant prayed an appeal. The errors assigned are: Admitting improper evidence on the part of defendant in error. Rendering judgment on the verdict-verdict being for more than plaintiff's bill of particulars. Verdict against evidence the account of plaintiff in error, though proven, was rejected by the jury. Refusing a new trial. The sustaining demurrer to plea in abatement. WILSON, and LELAND & LELAND, for Plaintiff in Error. MILLER & HARRINGTON, for Defendant in Error. WALKER, J. The difference in the orthography of Japheth and Japhath is so slight, as to make no material difference in 22 257 141 445 257 149 145 257 51a 150 Morton v. McClure. the sound, and cannot constitute a variance. To be allowed, the variance must be substantial, and it is not fatal when so slight, as to make no perceptible difference in sound. Stevens v. Stebbins, 3 Scam. R. 25. The demurrer to the plea in abatement for the misnomer, was therefore properly sustained. It is assigned as error that the finding of the jury was greater than the amount claimed by the bill of particulars, filed with the declaration. The practice act requires, that such a bill shall be filed, and one of its objects is, that the defendant shall be particularly apprised of what he has to meet on the trial. If the plaintiff were permitted to abandon the account filed, and rely upon an account not exhibited, the object of the enactment would be defeated. When the account has been filed, the party should be confined to the items, and the prices therein charged, unless leave is first granted by the court to amend the bill of particulars, on such terms as may be prescribed. The account filed by defendant in error in this case, was for $115.85, while the verdict was for $124.23, and the record nowhere discloses the fact, that any leave was given to amend, and the party not having obtained such leave, could not recover beyond the amount which he had claimed for his labor and property, furnished to the plaintiff in error. It was error to render judg ment on this verdict. The plaintiff in error, filed a bill of particulars under his plea of set-off, for $64.09, and on the trial called his son as a witness, who testified that he and the wife of plaintiff in error, furnished the items charged in the bill to defendant in error, as a payment on his account, for the board of the wife and family of plaintiff in error. That defendant in error admitted that he had received all but the item of five dollars in money. Another son testified that he was sent for, when he was working for wages, to go to the defendant in error, to work for his board and go to school, which he did, and that this board is charged in the account against his father. That he worked for defendant nights and mornings, to pay for his board, during the time he went to school. These two witnesses, stand uncontradicted or impeached, by anything appearing in the record. And their evidence unimpeached, was amply sufficient to establish the setoff except the item for five dollars, and also to reduce the account sued on, to the extent of the board charged as furnished to the witness. But the account of the plaintiff in error, or any part of it, was not allowed, either under the general issue as a payment, or as a set-off, under the plea of set-off. We think the evidence fails to sustain the finding of the jury. The judgment is reversed and the cause remanded. Judgment reversed. Hamilton v. Dunn. JAMES HAMILTON, Appellant, v. PATRICK DUNN, Appellee. APPEAL FROM COOK COUNTY COURT OF COMMON PLEAS. On an application for security for costs, the affidavits of the respective parties may have equal weight. On a petition for a mechanics' lien, the proceedings where the statute has not otherwise provided, will be governed by chancery rules. The pendency of a motion for security for costs in a suit pending on mechanics' lien, will not necessarily excuse a party for not filing an answer; nor will such motion prevent the rendition of a decree pro confesso. THIS was a proceeding to enforce a mechanics' lien. The appellant appeared and moved for security for costs, on the following affidavit: "James Hamilton personally appears, and being first duly sworn, deposes and says that he is the defendant in the above entitled suit; that he is well acquainted with, and has, for some months last past, well known the said Patrick Dunn, the plaintiff in said suit, both personally and by reputation. That the said Patrick Dunn, according to his own statements and admissions made to this affiant on or about the first day of December last past, was, and according to the best of his, this affiant's, knowledge, information and belief, still is, utterly insolvent, and has no goods, estate or effects liable to execution, wherefrom such costs, or any part thereof, as the said Patrick Dunn may be decreed or adjudged to pay in the above entitled cause, can be made, levied or satisfied. This affiant further says that he has, as he is informed by his counsel and verily believes, a good, full and sufficient defense to the above entitled suit on the merits thereof, and that his proceedings in this behalf are not in any manner interposed or intended to delay or retard the trial of the same. This affiant therefore prays that a rule may be entered in the above entitled cause, requiring the said Patrick Dunn, within such time as the court, in its discretion, shall see fit, to file good and sufficient security for such costs as may accrue therein, and in default thereof, that said suit may be dismissed, according to the form, force and effect of the statute in such case made and provided." On the 25th day of February, A. D. 1858, the appellee filed the following affidavit: "Patrick Dunn, of said county, being duly sworn, deposes. and says, that he is a mason by trade, and that James Hamilton, the defendant in this suit, is justly indebted to this deponent in a large sum of money, to wit: the sum of about two hundred dollars, for work, labor and services done and performed by this deponent for said Hamilton, and that said suit herein was com Hamilton v. Dunn. menced against said Hamilton to recover said sum of money; that this deponent is not insolvent, although a poor man, and that if said Hamilton would pay this deponent what is justly his due, he could pay all the debts he owes in the world. This deponent further says, that he does not know what the costs of the court in this case may be, but that if they do not amount to a large sum of money, he will be able to pay them without difficulty, especially if said Hamilton pays him what is now justly his due. This deponent further saith, that he is now and has been for about a year a resident of the city of Chicago, and that he has no other residence whatever. And further this deponent saith not." On the 26th day of February, A. D. 1858, the court overruled the motion for security for costs, the cause having been then called for trial, and granted motion of appellee that petition be taken pro confesso, for want of answer, and that a jury be forthwith impanneled to assess the damages; and overruled appellant's cross-motion for leave to file his answer instanter. On same day, cause submitted to the jury, who returned their verdict on the 27th day of February, A. D. 1858, and assessed the appellee's damages at one hundred and ninety-four dollars. The appellant moved to set aside the default, assessment of damages, and for leave to file his answer. Motion overruled, and decree rendered for appellee. Appeal prayed by appellant. W. B. SCATES, and M. C. PARSONS, for Appellant. E. ANTHONY, for Appellee. BREESE, J. The rule upon the plaintiff to show cause why he should not give security for costs, was properly discharged by the court on the counter affidavit of the plaintiff; that should have as much weight with the court, as the defendant's affidavit. Such motions, in such cases, are not regarded in a very favorable light by courts, the object being most generally procrastination and delay. Slight evidence has been usually held sufficient to discharge such rule. It appears from the record, that the motion for the rule and the filing the affidavit of the defendant was on the 8th day of February, and that it lay over until the 26th February, the day next following that on which the case was set for trial, it not having been called up by either party. On the 26th, the rule being discharged, the plaintiff's counsel thereupon entered his motion for a decree pro confesso, for want of an answer by defendant. The defendant resisted this motion, and thereupon |