Kimball v. Huntinton

Decided November 17, 1831

New York Supreme Court · decided 1831-11-17

Motion to set aside verdict for irregularity in making up the circuit roll. The declaration filed, and also the copy served on the defendant, contained a count on a promissory note for $320. The declaration set forth in the circuit roll described a note for $325, which was according to the fact of the case; the note produced on the trial being a note for $325.

Cited by 1 later decisions — most recently February 1843

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1831-11-17

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¶1By the Court,

Sutherland, J.

¶2A 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.