refused to direct a nonsuit on this ground, inclining to the opinion, that, as the case stated in the declaration, is precisely within the act of congress, to which the declaration refers; contra formam, &c. is matter of form, the want of which would be cured by verdict.
The declaration, after stating the patent, which refers to the specification, proceeds to set forth the specification verbatim; but in doing so, the word whirl in the specification, is called wheel in the declaration. The specification speaks of the wheel and the whirl, as distinct parts of the machine. For this variation, the defendant renewed his motion for a nonsuit. Bull. N. P. 6; Vin. Abr. tit. “Variance,” A.
This is an action brought upon a grant, to recover damages for the privilege secured by it. The grant refers to the specification, to explain what is granted; and, although it would have been sufficient to state in the declaration the substance of the grant, yet, when it professes to set forth the specification as a part of the grant, according to its tenor, the slightest variance is fatal.
Nonsuit directed.
A rule was afterwards granted, to show cause at the next court, why the nonsuit should not be set aside.