IN PLEADING. In Equity. The decree for merly contained a recital of the pleadings. This usage Is now mostly abolished, though it obtains largely in New Jersey.
At Law. Recitals of deeds or specialties Lind the parties to prove them as recited.
Definite recitals in municipal bonds of pre liminary facts relating to the regularity of their issue will estop the municipality from disputing the facts ; Lake County v. Graham, 130 U. S. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065; L. R. 5 Q. B. 642 (contra, Ontario v. Hill, 99 N. Y. 324,_.1 N. E. 887) ; or recitals of the performance of conditions precedent, as against a bona fide purchaser for value ; Pre sidio County v. Bond & Stock Co., 212 U. S. 58, 29 Sup. Ct. 237, 53 L. Ed. 402; but no re cital of power to issue them is binding; Northern Nat. Bank of Toledo v. Porter Tp., 110 U. S. 608, 4 Sup. Ct. 254, 28 L. Ed. 258. If the recital, in a public bond is that the bonds were issued "in pursuance of" or "in conformity with" the statute, this is an as sertion that the statute has been followed; but if "under" the statute is used, the pur chaser is put upon inquiry and the munici pality is not estopped to show that the bonds are void because in excess of the constitu tional limit ; Bates v. School Dist., 25 Fed. 192; Com. Dig. Pleader (2 W. 18) ; 4 East 585; Wilbur v. Brown, 3 Den. (N. Y.) 356; Scott v. Horn, 9 Pa. 407; Baltimore Ceme tery Co. v. First Independent Church, 13 Md. 117; and a variance in an essential mat ter will be fatal; Bishop v. Quintard, 18 Conn. 395 ; even though the variance be trivial; 1 Chitty, Pl. 424. The rule applies to all written instruments ; Ulrick v. Ragan, 11 Ala. 529•; Addis v. Van. Buskirk, 24 N. J. L. 218; Atlantic Mut. F. Ins. Co. v. Sanders, 36 N. H. 252 ; not, it seems, where it is mere
ly brought forward as evidence, and is not made the ground of action in any way ; Mar shall v. Adams, 11 Ill. 40.
Recitals of public statutes need not be made in an indictment or information; Dy. 155 a, 346 b; Cro. 187; 1 Wms. Saund. 135; nor in a civil action ; Crawford v. Bank, 6 Ala. 289; Shaw v. Tobias, 3 N. Y. 188 ; but, if made, a variance in a material point will be fatal; 4 Co. 48; Cro. Car. 135; Bac. Abr. Indictment ix.
Recitals of private statutes must be made; Eckert v. Head, 1 Mo. 593; and the statutes proved by an exemplified copy unless admit ted by the opposite party ; Steph. Pl. 347; Proprietors of Kennebeck Purchase v. Call. 1 Mass. 483; but not if a clause be inserted that it shall be taken notice of as a public act; 1 Cr. M. & R. 47; Brookville Ins. Co. v. Records, 5 Blackf. (Ind.) 170; contra, 1 Mood & M. 421. Pleading a statute is merely stating the facts which bring a case within it, without making any mention, or taking any notice of the statute itself ; McKay v. Woodle, 28 N. C. 352. Counting upon a stat ute consists in making express reference to lt, as by the words "against the form of the statute [or "by force of the statute"] in such case made and provided." Reciting a stat ute is quoting or stating its contents; Steph. Pl. 347; Gould, Pl. 46.
Recital of a record on which the action is based must be correct, and a variance in a material point will be fatal; Blakey v. Saun ders, 9 Mo. 742; State v. Williams, 17 Ark. 371; Iglehart v. Hobart, 19 Ill. 637; other wise where it is offered in evidence merely; State Bank v. Gray, 12 Ark. 760.