Majority
p. 472Kimball and others vs. Huntinton. November 17.
Headnote
A verdict will not be set aside for a variance in the amount of anote declared on, between the declaration served and the circuit roll, unless the defendant alleges surprise, or that he was prevented, by the error in the declaration served, from making due preparation for his defence.Motion to set aside verdict for irregularity in making up the circuit roll. The declaration filed, and also the copy served on the defendant, contained a count on a promissory note for $320. The declaration set forth in the circuit roll describ
p. 473
ed a note for $325, which was according to the fact of the case; the note produced on the trial being a note for $325. At a previous term, the plaintiff obtained leave of the court to amend his declaration by describing the note truly; he however did not avail himself of the benefit of the rule, but made up his circuit roll the same as if the note in the declaration served had been truly described. On the ground of this varianee, the defendant moved to set aside the verdict.
J. Edwards, for defendant.
J. Paine, for plaintiffs.
By the Court,
A Verdict is never set aside for a variance of this kind, unless the" defendant alleges surprise, which is not pretended here. The omission of adding the wordyiue to the words three hundred and twenty, in describing the amount for which the note was given, was a mere clerical error, which might have been disregarded upon the trial of the cause, had the note in the circuit roll been described as it was in the declaration, and would have been amended of course after verdict, unless the defendant alleged surprise, or that he was thereby prevented from making due preparation for his defence. 2 R. S. 406, § 79. The motion is denied, with costs.