Kimball v. Huntinton

7 Wend. 472

Opinion

By the Court,

Sutherland, J.

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.