
    Adam Waterford vs. Samuel Hensley, adm’r., &c.
    If the word “days’* be inserted in a plea of notice, under the act of 1801, ch. 18, by a security in a note, which word is omitted in the written notice given to the holder, requesting him to sue, &c., it is not fatal.
    It is not necessary in a plea of notice, under said act, to set out the notice in hac verba; an averment, that such notice was given, and that the holder did not sue, &c., is sufficient.
    This was an action of debt, brought by, the defendant in error, as administrator, &c., of Henry Spar, deceased, upon a bill single, for six hundred and twenty dollars, executed to said Spar in his lifetime, by the plaintiff in error, and a certain James Phagan, who is not sued in this action. The writ issued on the 28th of March, 1827.
    The defendant below, on oyer, set out the bill single, and filed the following plea: “And the said defendant comes and defends the wrong and injury, when, &c., and says actio non; because, he says, that on the 29th of September, 1822, at, to wit, in the county aforesaid, he, the said defendant, gave the said plaintiff the following notice, in the words and figures following, to wit: Captain Samuel Hensley, please take notice, that you are hereby required to bring suit against James Phagan, for the note, or bill single, you hold on him, in which I am security for between five and ¿six hundred dollars, or I will plead this notice in bar of your resorting to me as security, after thirty days from the time you receive this notice.” Adam Waterford. And the said defendant avers, that he was only security for said James Phagan, in the aforesaid bill single, and that said bill single was the only one held by said' plaintiff on this defendant; and said defendant further avers, that said notice was given after said bill single fell due, and that said plaintiff did not commence his suit within thirty days after he received said notice, and this he is ready to verify, &c.
    The plaintiff replied, traversing the facts set out in the plea, upon which issue was joined.
    At the trial of the cause below, the defendant, in support of his plea, proved by Adam Thomas, that on the 19th of September, 1822, he left a notice with a young woman who was spinning at Hensley’s house. The notice proved to have been left, was precisely the same with that set out in the plea, except that the word “days,” at the end of thirty, in the latter, was not inserted in the former; on which account the evidence was rejected by the circuit court. He also proved by James Arnold, that Hensley informed him there had been a notice left at his house from Waterford, to bring suit against Phagan, and that he had received it in due time, but that it could not effect his claim against defendant, as the notice was not delivered to him personally, but to his daughter, and because defendant was a principal in the note. He also proved by Isaac Spar, that Hensley acknowledged he had received the notice from the defendant, to sue Phagan; but said it was not a good one, because the amount of the note was not specified correctly in the notice. It was also proved, that Hensley could read, and that defendant was only security in the note.
    
    
      The court charged the jury, that as there was a variance between the notice set out in the plea, and that proved, by the omission of the word days in the one proved, after the word thirty, which word was in the former, they must find for the plaintiff, as to the notice. The jury returned a verdict, that defendant was security, &c., but that he had not given notice, as required by act of assembly. A new trial was then moved for by the defendant, which the court refused to grant, but entered up judgment on the finding of the jury; from which judgment the defendant prosecuted a writ of error to this court.
    
      M'Kinney for plaintiff in error.
    
      Parsons for defendant in error.
    
      
       The 4th section of the act of 1801, ch. 18, requires, that the party pleading this notice, shall prove in open court, by two witnesses, that a copy of the notice so relied upon, was served upon the person or persons bringing such action. It will be perceived, that the counsel for Hensley, did not object to the sufficiency of the proof, in this cause, as to the service of the notice on him.
      In a subsequent case, however, at the same term of the court, the question arose upon the following state of facts: The defendant in the case alluded to, proved by one witness, the service of a copy of the notice on the plaintiff, and by a second his acknowledgment of its reception. It was decided, that the proof of the notice came substantially within the requisitions of the law.
      
        Reporters*
      
    
   Catron, J.

delivered the opinion of the court. This court is of opinion, that the circuit court erred in rejecting the evidence offered below, to sustain the plea of the defendant. There was not such a variance between the copy of the notice set forth in the plea, and that offered in evidence, as to authorize the court to arrest the latter from the jury. The word “days,” omitted in the notice given in evidence, was most obviously left out by mistake, in making out the copy of the original given to defendant; without which word being supplied by intendment, the sentence to which it belongs is nonsense; in such cases a word will be supplied or rejected. The rule is well laid down in the causes of the King vs. Tippet, (1 Term Rep. 233;) King vs. May, (Douglass 183.)

The plea in this cause is, however, substantially good upon its face, independent of the notice set out in words: the evidence would have been admissible, had that part, reciting the notice, been stricken out. It is objected, however, that striking out, or rejecting the notice set forth in terms, and then the copy offered in evidence, would not support the plea, because it does not well describe the note sued upon; which is described as being for between five and six hundred dollars; whereas it is for $620. 2dly. The note is described as if given to Hensley, whereas it had been executed to Henry Spar, who had died, and of whom Samuel Hensley was administrator. In this latter objection there would be some force, had the notice not been set forth, but this having been done, and the issue having been taken on the plea, the only question for the examination of the court and jury, was the truth thereof; in ascertaining which, error intervened, and which this courtis called upon to correct. This is the only question presented for the consideration of this court. All the evidence is set forth in the plea, that was relied upon to make out the defence; if this was insufficient, the plaintiff should have demurred, when the objection to the substance of the plea could have been tested. This court would not, however, be understood as encouraging a demurrer, should the cause again be examined in the circuit court.

The judgment will be reversed and the cause remanded for another trial.

Judgment reversed.  