Anderson v. Hamilton

6 Blackf. 94

Opinion

Sullivan, J.

Debt on a promissory note. Plea, nil debet. By consent of parties the cause was tried by the Court. Judg ■ ment for defendant. The averment in the declaration is, “ that on, <fee., the defendant, at the State of Kentucky, to wit, at the county of Jackson, made his promissory note by which he promised to pay to the plaintiff, &c.” On the trial, the plaintiff introduced in evidence a joint and several note made by the defendant and two others, corresponding in date and amount with that described in the declaration, but was silent as to the place of its execution.”

A. C. Griffith, for the plaintiff.

We think the contract offered in evidence was substantially the same as that laid in the declaration. The plaintiff had a right to sue one of the makers of the note without reference to the others, the contract being joint and several.

The words in the declaration “at the State of Kentucky” *are superfluous. They were unnecessarily introduced, and the variance, if any exists, is not material. 3 Camp., 303; Reagan et al. v. Maze, 4 Blackf., 344.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.