
    
      Alfred Fant vs. James M. Gadberry.
    
    Plaintiff declared upon a note made by defendant: at the trial he produced a note signed in the name of a firm, and proved that no such firm existed, and that the defendant signed the note: Held, that the variance was fatal.
    The declaration contained one of the common money counts: Held, that the note could not be given in evidence under that count, 
    
    A motion for leave to amend, after motion for nonsuit made and decided, comes too late.
    
      Before O’Neall, J. at Union, Fall Term, 1851.
    
    The plaintiff declared upon a note made by James M. Gad-berry. The declaration also contained one of the common money counts. The note offered in evidence was signed 4 Gadber-ry and Fant.’ It was proved that there was no such firm, and that the defendant made the note. It was objected that the allegata and probata did not correspond. A motion for nonsuit was sustained on that ground. His Honor thought the note should have been described as a note made by the defendant by the name and style of Gadberry & Fant. A motion to amend was made, but his Honor thought it came too late.
    The plaintiff appealed, and now moved this Court to set aside the nonsuit, on the grounds,
    1. Because the declaration was good and sufficient.
    
      
      2. Because the plaintiff should have been allowed to amend if necessary.
    
      A. W Thomson, for motion,
    cited 1 Saund. PI. & Ev. 183 j Harp. 115 ; 2 Mill, 109.
    
      Herndon, contra.
    
      
       Vide Mathews vs. Fogg, 1 Rich. 3fi9; Haviland, Risley <f- Co. vs. Simons, 4 Rich. 338. According to the cases of Cole vs. Cushing, 8 Pick. 48, and Hughes vs. Wheeler, 8 Cowen, 77, it would seem that, where a note is given in evidence under the money counts, it is not necessary to prove the consideration. R.
    
   Curia, per O’Neale, J.

In this case the plaintiff described the note as the note of J. M. Gadberry. To support that allegation, he offered in evidence the note of Gadberry & Fant. The variance is plain and fatal.

It is very true, if he had given a proper description of the note, such as is suggested in the report, and had followed it up by proof that there was no such firm as Gadberry &. Fant, and that Gadberry signed the note, in the names of parties who could not be liable, he (Gadberry) would have thus been made liable himself.

There was no proof to sustain the money count. There was nothing to shew that its consideration was received by the defendant. So, too, conceding to the plaintiff, that the note is the evidence, by the -words “ value received,” of so much money received to the use of the plaintiff: — yet looking to the note alone, it is the evidence of the receipt of that much by Gadber-ry & Fant.

The motion to amend was properly overruled by the Court. Such a motion can very rarely be allowed at the trial term. Certainly it is generally improper, when the case is on trial, and much -more so, when a motion for nonsuit is made, argued and decided, and nothing remains but to enter it.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  