
    Wood against Bulkley.
    a promissory leged,inthede* have- Leen drawn by the defendant, by « Christopher ■ ceninCTidence %cirta.vmb provéa thatthlf rnt^s usuafmpde ■name, it8 was was no vari ’
    a defendant cannot allege at the trial, that there is a vananee between 3ervedatami the cord-^thejudí edhy the8record tiiere’is a^n'ate^ rial variance, the party must cburl to set adipt. ‘ ver
    This was an action of assumpsit upon a promissory note¿ made fey the defendant, and payable to. the plaintiff; The cause was tríed-béfore Mr. Justice Yates, at the Onondaga circuit,’in, ■ . - ° ' I81-6*- ‘ ' <’ . -* ;
    The declaration contained but one count, which was on á Promissory note, drawn by the -'defendant,. “ -by-the -name and description of Christ. But-ktey?1 - The-defendant’s counsel-objected to -the admission of the note,'on- the ground of a-Vari- , aneé between the- Signature of the note, and; the name stated in-the declaration ; but'the judge overruled1 the objection, and'the plaintiff proved that the defendant usually signed his name in the same maimer as in the; note in question. The defendant’s coun- .. . , , A ' . , , s«l;ofreBed to prove á variance between the copy of the declara- . ’ * _ . . , ’ -\{j - J V ’ tion served, and, thénisivnus record, as to the; name of the defend®nt'' • e judge refused to receive the testimony, and a Verdict whs-found for the Amount of the note, • - . .
    The' defendant mow moved for a new trial, and. -the cause was-submitted; to; the court without argument. ■ -r
   Per Curiam.

jThemotion foranew trial must bedenied. There was no material Variance between the note set out in the declaration, and the one produced in evidence. The signature of the defendant, by the abbreviation of Christ, for- Christopher, was proved to be the usual and ordinary way in which he signed hisnaine. According to the case, there is, in point of fact, no variance between the nisi prius record, and the copy of the deelation, as served off th'e defendant, even if such proof could have been admissible,: But this was 'not matter that could be inquired into Upon the trial The' judge at the circuit must be governed by the nisi prius record, and any variance,' if material, must be made the subject of an application to the court, and the verdict would, no doubt, be set aside, if the defendant was pee-' judiced by such variance. But no such variance appears to-exist in this case, according to the defendant’s own allegation.

New trial denied.'  