Clary v. Thomas

103 Mass. 44

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Gray, J.

The objection of variance between the declaration and the proof, which is the only one argued, is not supported by the case stated in the bill of exceptions. The practice act provides that “ all written instruments, except policies of insurance, shall be declared on by setting out a copy or such part as is relied on, or the legal effect thereof, with proper averments tc describe the cause of action.” Gen. Sts. c. 129, § 2, cl. 9. The declaration in this ease sets out a copy of the note made by the defendant, and the legal effect of its indorsement to the plaintiff. The note and indorsement offered in evidence corresponded with the declaration. Exceptions overruled.