
    Present: A full Court*
    Whitney vers. Whitney.
    In a Declaration on a Note by the Payee. the Omission of “Order” is an immaterial Variance. Aliter, in a Decleration by an Indorsee.
    ASSUMPSIT on a Note. Note offered in Evidence to the Jury.
    
      Mr. Adams (objected.)
    
    The Word Order is omitted; we take it to be an essential Variance. There is not a greater Difference between a Bond and a Note, than between a Note negotiable, and not. Such kind of Variances are fatal. Vid. Fitzgib. 131, Baynham’s Cafe; Law of Evid. 191.
    1765.
    
      Mr. Auchmuty.
    
    The Note is, to pay Plaintiff Order: The or is left out. Where a Note is nonsensical we are not obliged to follow it. There can be no Doubt but whether this is Evidence to a Jury or not. In Favour of Justice doubtless it is. As to the Authorities the Gentleman cites — “a Note of a different Date,” is a much stronger Case, for that is a totally different Note. Cites Trials per Pais. 399.
   The Court

ruled, that the Note should go in as Evidence, on another Point. That, as the Note had not been indorsed, the Omission of Order was immaterial— otherwise had it been indorsed. ()

Ch. Just, did not give his Opinion. 
      
       Vid. the Cafe, Russell & Oakes. ()
     
      
      (1) S. P. Fay v. Goulding, 10 Pick. 122 — “ Per Curiam. As the action is brought by the payee this is not a material variance. If the plaintiff were an indorsee it would have been necessary to allege that the note was payable to the payee or his order.”
     
      
      (2) Ante, p. 50, where it is said by Russell J. that there is no difference between notes negotiable and not, until the indorsement.
     