
    John Wilson, v. Lewis Pyles.
    The fact of the note, sued upon, being incorrectly copied on the copy sum. pro., will not support a motion to set aside the service by the sheriff.
    The endorsement of a copy of the cause of action on the process, is intended to answer the purpose of a bill of particulars in the higher jurisdiction, and the penalty for omitting it altogether, or incorrectly copying it, should be the same; it is no more a part of the process itself, than the bill of particulars is a part of the declaration. Vide, 1 Bailey, 124, and 2 Bailey, 416.
    Where one of two notes has been incorrectly copied on the copy process, the Court will grant leave to the plaintiff to amend by striking out the note thus incorrectly copied.
    Tried before Mr. Justice Withers, at Abbeville, Spring Term, 1847.
    The following is his Honor’s Report:
    A motion was made on the part of defendant to set aside the service by the sheriff, on the ground, that one of the two notes sued upon was not correctly copied on the copy sum. pro: It was incorrect in this: that the date of the note was not copied as it appeared on the original.
    I did not think this irregularity affected the service: and overruled the motion.
    A. motion was then made, on the part of plaintiff, to strike out the note thus incorrectly copied, and it was resisted, on the ground, that the debt and interest of the note correctly copied were offered to be paid on Monday morning before the case was called; and to this it was replied that the costs were also required and refused. No legal tender of debt and interest was proved, and if it had been, I should have thought that the costs ought to have been tendered also. I granted the motion made for the plaintiff, and decreed for him on the note well copied, and which was undisputed.
    The defendant appealed on the grounds,
    1st. Because his Honor erred in refusing defendant’s motion to set aside the service, on the ground that a true copy was not served upon him.
    2d. Because his Honor erred in granting the plaintiff leave, under the circumstances, to withdraw the note incorrectly copied on the copy process, and decreeing for the plaintiff, for the note well copied.
    Jones, for the motion.
    Perrin, contra.
    
   Withers J.

uelivcred the opinion of the Court.

It docs not appear to this Court that there was any error in the Court below, by reason of refusing the motion to set aside the service in this case. It is not perceived how any non-conformity of the copy of the cause of action, as appearing upon the original and copy process, can affect the service by the sheriff. It is not by law, but by rule of Court, that such copy of the cause of action is required to be indorsed on or annexed to the copy process. The object of this (sec 1 Bailey, 124) is to give the defendant notice ofwhat he is to answer, and is intended to serve the purpose oí a bill of particulars, as used in the higher jurisdiction. Perhaps it ought not to be regarded any more as a part of the process itself, than the bill of particulars is regarded as a part of the declaration; and the penalty for omitting it altogether, or making an imperfect copy on the original or copy process, or on both, it would seem, should be the same. Now, the bill of particulais is no part of the record; but if it bo not filed, (as is said in Davis v. Hunt, 2 Bailey, 416,) the defendant may refuse to plead until it shall be filed. If evidence is offered of demands not contained in the bill of particulars, the evidence may be objected to, and this rule would have afforded ample and very proper protection to the defendant in the case before us. In the case of Cregier & Wife, v. Smyth, 1 Spears, 298, the omission altogether to file a bill of particulars was regarded as cause of demurrer; and the cases of Bailey v. Wilson, and the same v. Patton, 1 Bail., 15, cited in this case as authority for the motion to set aside the service, were adduced in Cregier & Wife v. Smyth, as authority to authorize a demurrer. There can be no doubt that it was proper to give leave to the plaintiff in the case before us to amend by striking out the note incorrectly copied,

The motion is refused.  