15 N.J.L. 178 | N.J. | 1835
The opinion of the court was delivered by
By the 54th Section of the practice act, Rev. Laws, 421, the defendant or his attorney, at any time before plea pleaded, has a right to require, and -the plaintiff or his attorney if required, is bound to deliver to the defendant or his attorney, a copy of any bond, bill or note, on which the declaration is founded. If regularly required, the plaintiff or his attorney must deliver such copy, at his peril. But the requisition should appear to have been made “before plea pleaded,” and in writing. All notices in matters of practice in this court, whether such notices be required by the practice act, or by the rules of this court, must be in writing, unless otherwise expressed in the act of Assembly, or in the rule of this court, requiring the same. In this case, the demand was made by parol; and whether before or after plea pleaded, does not appear by the state of the ease. Now I think, if a party would inflict so severe a penalty on his adversary, as to subject him to a non-suit, if plaintiff, or the loss of his set off, or other defence, if defendant, on the ground of a discrepancy between the document offered, and the copy furnished, he ought to show himself strictly and entirely within the provisions of the practice act, and the rules of this court. He ought to show, that he had called on his adversary for a copy, or a particular, in a lawful manner, and in due season. The consequences that may fall on suitors, are too severe to be visited on them, upon the ground of out-door conversations, or informal communications between the attorneys.
•Now if the plaintiff’s attorney agreed to waive a demand in writing, such agreement ought to have been established in the manner prescribed in the rule. But without insisting upon that, I am of opinion that if this copy had been delivered in compliance with a written demand, made in due season, the note ought not to have been rejected, unless upon an affidavit of surprise, by the adverse party. The note had been truly described in the declaration, and corresponded in date and in every other particular, with the copy furnished, except in the amounts. Unless therefore, the defendant had given more than one note of that date, payable to the same person, at the same period, and at the same place, he could not have been surprised or prejudiced. In McNair v. Gilbert, 3 Wend. R. 344, the notes' were described in the particular, as being on interest, when they were not so. The objection was overruled ; and the court say, “ the true rule on the subject, seems to be, that variances are immaterial, unless they are calculated to mislead.”
In Day v. Bower, 1 Camp. N. P. 69, in note, a mistake had been made in the particular, by charging ¿683.13.6, with the usual mercantile abbreviation of ditto, ditto, under a wrong name; thus reading as if the payment had been made to the person last named, instead of the person named in the next preceding line but one. Lord EeIiENBOROugh, refused to exclude the evidence of that payment, unless the defendant would make affidavit that he had been misled by the particular. In Davis v. Edwards, 3 M. and S. 380, in debt for rent; the premises were in A, but were described as in B ; but it was considered immaterial, unless the defendant would show he held other premises of the plaintiff in B. In Temmy v. Gibbs, 3 Bing. R. 3, which was ejectment for non-payment of rent, a variance between the rent proved, and the amount stated in the particular, was disregarded. In Millwood v. Walter, 2 Taunt.
- Upon the authority of the case of The Meadow Company v. The Rector, &c. ante 52, lately decided in this court, I think we should set aside this non-suit, on payment of costs, even if the variance had been a fatal one; but as it is, the rules applied for, must be granted without costs.
Rules granted.
Cited in Gulick v. Loder, 3 Gr. 419.