
    COOPER vs. GUY.
    The declaration described the note as for a certain sum “withinterest;” the note offered in evidence, was silent as to interest. Held that the variance was fatal.
    Debt — on a sealed note,
    
      Plea — Non est factum.
    
    T.atr.T) and Goodenow, for the plaintiff,
    offered to read the note in evidence.
    Wright, for the defendant,
    objected to its being read, because it is not the note described in the declaration.
   President.

The declaration states, that the defendant, “on the 16th of September, 1816, at, &c. made his certain note in writing, signed with his own hand, and sealed with his seal, which, &c. by which note the said Levi [Guy] promised to pay to the said Galvin [Cooper] three months after the date of the said note, the sum of thirty-one dollars, with interest from the time the said note became due, yet” &c. Nothing is said, in the note, about interest; and the question is, whether this is a fatal variance in the description of the note. It is urged that the words, with interest, maybe rejected as surplussage; but it must be recollected, that this allegation is part of the description of the instrument which the law requires to be literally proven; it is not repugnant to any other part of the declaration, if even allegations of description could be rejected for repugnancy as surplussage. The plaintiff declares on p, note, by which the defendant has promised to pay him, three months after the date of the note, the sum of thirty-one dollars, with interest; the note, offered, cannot be read in evidence to prove this allegation, for it is not the note described.

Plaintiff suffered a non-suit.  