case ROZAL against LAMPEN if judgement be give for a defendant for a default  of the venue or other defect in the declaration he can plead this judgement  recover in bar to another action for the same cause S C post S C Mod roll Abr    Leon lev Mod Mod ray pollexfen Com dig action l term Rep conspiracy the  plaintiff Rozal declare that a replevin be bring against he and other and that  the defendant Lampen appear for he without any warrant and avow in his name  and suffer judgement to pass against he and that twentytwo pound and ten  shilling damage be recover against he at such a plan e tlie defendant Lampen  plead a recovery in a former action bring by the now plaintiff the record of  which be recite in the plea appear to be the same with this but only here the  place be mention where the damage be recover which be omit in the former  action to which Lampen have plead a retainer by one of the then defendant in  replevin and upon a demurrer have judgement but the truth of the case be that  judgement be not then give for he that his plea be good for the court be all  of opinion that it be nought but because the declaration be not good for want  of mention the place where the damage be recover which the plaintiff have  amend now the plaintiff demurrer again because of this variance between the  two action upon the defendant own show sir Robert shaftoe for the plaintiff  insist that a recovery in a action be no bar where there be a substantial  variance as here there be and that so it have be adjudge in the case of leech  v Thompson roll Abr light b pi where the plaintiff declare that he at the  defendant request have promise to marry the defendant daughter he promise to  pay he a thousand pound and upon non assumpsit plead judgement be give io the  defendant and the plaintiff bring another action for the same sum and then lie  the promise to pay the thousand pound disturb m ind require be and it be  adjudge that the former judgement be no bar to the last action modern because  there be a material difference between the two promise one be lie without  request and so the money be to be pay in a convenient time and in the last the  req vest be make part of the promise and must be special allege with the time  and place where it be make so in this case the plaintiff have I horned owl  declare right in his first action which he have amend now and therefore the  former judgement shall be no bar to he in Robinson be case there be a mistake  in the writ videlicet a formedon in remainder for that in reverter and hold no  bar so by a parity of reason there shall be no bar here because the first  declaration be mistake and it be v itium clergyman vide cro James level v hall  Barton sergeant contra this be no new action for the ground of it be not where  the damage be do horned owl recover but the appear without a warrant and so  have plead a retainer and have judgement and now plead that judgement to this  right of way for cattle n and aver it be for one and the same thing it be a  good bar which the plaintiff by his demurrer have confess Adjournatur a in the  case of Sherborn v Stapleton in the common plea Hilary term Geo roll it be say  that the record in this case can be find but in the same case Mod under the  name of Lampen v Kedgwin it be hold that the recovery in the former action be  no bar and see rise v stand post and Putt v Roster post a