
    Dent v. Miles
    Inpetition and summons, it is not a material variance for the plea del. in setting out a copy of the note sued, to write correctly, words that are wrongly spelled in the original.
    ¡Statement of the «ase.
    This was an action of debt by petition and summons; the plaintiff as usual and as required by the statute inserted a copy of the note sued on, the defendant pleaded five .several pleas and issues were made thereon, the court found all the issues for the plaintiff and gave judgment for the debt and damages;
    
      Opinion of the court,
    Petltl°" ?nd material vari-anee for the pleader’m spungoat sued^wrife oor-rectly words that are wrongly speli-m 6 ougma •
    On the trial the plaintiff offered the note in evidence, ’the defendant objected to receiving the Same on the 'ground that it varied from that set out by the petition. The court overruled the objection aud permitted the note to be read.
    Points and citations of authorities by counsel.
    I contend that the literal variances are fatal, for the net of Assembly requires a copy of the instrument to be set out in the petition. Besides, there is a variation as to the name of the payee. The note purports to be payable to Ñaman Miles or “company” or order, who “company” is there was n'O proof, but in the petition dt is written '“company;” The court cannot judicially know, whether “company” was another name of Miles, or the name of another person, or whether it was.intended for a “company” as the plaintiffs below seems to have supposed.
    See old revised code page 620 Sec. 1st. for the form of the petition and that a copy was required of the note sued on.
   . Opinion of the court delivered by

McGirk J.

The record no where points out in what the variance 'consists, but says by consent the original is attached to the record, when we look at the original we do not see any material variance in the copy given, the word pany is spelled m the first sylable with an e and in the original, the place of the (o) seems to be occupied with {a) but of this we are not sure, and in several other words where the letter (o) should be, the letter (a) occupies its place, but upon an inspection of the whole writing, it seems to us that the writer of the note makes his (o) nearly, though not quite like some writers’ make their (a.) — No other discrepency is discovered by us, except the word'promise in the copy, is spelled in the usual way, and in the original, the word seems to be spelledprom'ce; and the word dollars in the original is not very plain. For want of some better defence, the circuit court did well enough to give judgment for the plaintiff. Judgment affirmed.  