¶1It was not necessary to give the defendant notice to produce the note alleged to be converted. If it was in his possession, or under his control, the action was notice. (The People v. Holbrook, 13 Johns. Rep. 90.) The verdict is not against the weight of evidence; two witnesses contradicted each other, and the jury have believed the plaintiff’s witness.
¶2A refusal to give an order for the note, contrary to the defendant’s duty, was,-in effect, a conversion of the note. It was a claim of dominion over it, under the circumstances of the case, and was evidence of a conversion, according to the doctrine in Bristol v. Birt. (7 Johns. Rep. 258.)
¶3But the variance between the note declared on, and the one proved to have been converted., is fatal. The declaration states the note to be for 180 dollars, and it appeared in evidence to be a note for 300 dollars. The amount of the note was material; and it being laid under a videlicet, will not, in such case, dispense with strict proof of the allegation. (1 Chitty's Pl. 308. 6 Term Rep. 46. Bull. N. P. 37. 2 Esp. N. P. 200. 3 Selwyn's N. P. 1165.) The authorities show, that the variance between the note alleged, and the note proved, was material and fatal. Where the party is incapable of stating the date and amount of a note, of which he is dispossessed, the law will not require him to make such statement; it will be satisfied by an allegation, that the note is of great value, to wit, of the value of a certain sum. But here the plaintiff has undertaken to state the precise amount for which the note was given, and his proof does not correspond with the statement.
¶4New trial granted.