8 Johns. 410 | N.Y. Sup. Ct. | 1811
The case does not profess to state the testimony given at the trial. It is impossible to discover, from this very defective case, what point was intended to be reserved for the opinion of this court, except it be the question touching the variance between the declaration, as contained in the N. P. record, and the declaration, as served upon the defendant’s attorney. But as true copies of the bond and award are admitted to have been served, and as the N. P. record and the proof corresponded, and as the defendant, instead of demurring specially, for the variance between the award as set forth in the declaration, and the oyer, (which ought to have been the course; 1 Ld. Raym. 715. 1 Salk. 73.) pleaded no award, he comes too late to take advantage of the variance. Every thing appeared correct, at the circuit. The judge could only apply the testimony to the pleadings as they were contained in the record. There was no surprise upon the defendant, as there might have been, if the declaration and oyer served had both contained the same mistake ; nor is this a motion to set aside the proceedings at the circuit, on the ground of any such surprise. After pleading in chief, and going to trial upon the merits, the defendant now attempts to take advantage of a mere clerical mistake in the declaration which could not have deceived him; for not only was the oyer correct,
There might have been a question whether the plaintiff was entitled to recover for the costs of the two suits mentioned in the award) but as the amount of the verdict is not stated, it cannot be discovered, from the case, whether the costs were included in the verdict, and no question on that point was raised at the trial.
Judgment for the plaintiff.
