
    Timothy F. Clary vs. William W. Thomas & another.
    In an action on a promissory note, alleged to have been made payable to B. or order and duly indorsed to the plaintiff, the proof was of a note corresponding with the copy annexed to the declaration, save that it bore the indorsement of B., a revenue stamp, and a memorandum of protest. Held, no variance.
    Contract. The declaration alleged that “ the defendants made a promissory note, a copy whereof is hereto annexed, payable to one Betsey S. Besse, or order, and the same was duly indorsed and transferred to the plaintiff.” At the trial in the superior court, the plaintiff offered in evidence a note precisely corresponding with the copy annexed to the declaration, save that it bore an indorsement by Besse, and on its face a revenue stamp, and a memorandum of protest hnd notice, signed by a notary, none of which were in the copy. The defendants objected to its admission on the ground of variance; but Wilkinson, J., admitted it. The verdict was for the plaintiff, and the defendants alleged exceptions. Other exceptions taken by the defendants were waived at the argument.
    
      E. L. Barney, for the defendants.
    
      T. M Stetson, for the plaintiff, was not called upon.
   Gray, J.

The objection of variance between the declaration and the proof, which is the only one argued, is not supported by the case stated in the bill of exceptions. The practice act provides that “ all written instruments, except policies of insurance, shall be declared on by setting out a copy or such part as is relied on, or the legal effect thereof, with proper averments tc describe the cause of action.” Gen. Sts. c. 129, § 2, cl. 9. The declaration in this ease sets out a copy of the note made by the defendant, and the legal effect of its indorsement to the plaintiff. The note and indorsement offered in evidence corresponded with the declaration. Exceptions overruled.  