
    James against Walruth.
    In^an. action of ■ward, true eopies of the bond and wtmrdvrzre declaration*1 lon attorneye-n(*'butS the award set forth m the deeiaration, varied from the oyer, and from that nisipriusrerartj! pieaded^Tsuch dictaras* fqumi for the plaintiff.
    It was held, that if the defendant meant to avail himself of the variance between the award set forth in £he declaration and the oyer, he {should have demarred specially, instead of pleading no award; and that, as the proof corresponded with the nisi prius record, at tile trial,the defendant was too late to take advantage of the variance, nor could the Verdict be set aside,’ on the ground of surprise, as the oyer contained a true copy Of the. award.
    THIS was an action of debt on an award. The decíaration, after setting forth the penalty of the bond, count- . . ... . - . . . - . n ea on the condition, submission and award. After statlng the submission of all controversies, &c. between the Parties>to three arbitrators, and to abide the award of them, or any two of them, &c. “ then the obligation to * . . • ° be void, or otherwise to remain in full force and virtue,” . it proceeded, “ and whereas, there Was also a suit dependjng,” &c. “ against the plaintiff, in favour of David Fisk, the said arbitrators were also to take the said suit in-, consideration and award,” &c. (setting forth the award, &c.) The defendant pleaded no such award, on which issue was joined. The case set forth the declaration, bond and condition and award; and it appeared that the declaration served on the defendant’s attorney differed from that contained in the nisi prius. record, as to the amount awarded; and that the suit of David Fisk, asrainst 'fames was also included in the condition of the J . bond of submission. The defendant’s counsel objected to the variance, at the trial. It was admitted that true copies of the bond and award had been served on the defendant, with the declaration; and a verdict was taken for the plaintiff, subject to the opinion of the court, on a case agreed upon by the parties,
    
      Cady, for the plaintiff.
    
      Gold, contra.
   Per Curiam.

The case does not profess to state the testimony given at the trial. It is impossible to discover, from this very defective case, what point was intended to be reserved for the opinion of this court, except it be the question touching the variance between the declaration, as contained in the N. P. record, and the declaration, as served upon the defendant’s attorney. But as true copies of the bond and award are admitted to have been served, and as the N. P. record and the proof corresponded, and as the defendant, instead of demurring specially, for the variance between the award as set forth in the declaration, and the oyer, (which ought to have been the course; 1 Ld. Raym. 715. 1 Salk. 73.) pleaded no award, he comes too late to take advantage of the variance. Every thing appeared correct, at the circuit. The judge could only apply the testimony to the pleadings as they were contained in the record. There was no surprise upon the defendant, as there might have been, if the declaration and oyer served had both contained the same mistake ; nor is this a motion to set aside the proceedings at the circuit, on the ground of any such surprise. After pleading in chief, and going to trial upon the merits, the defendant now attempts to take advantage of a mere clerical mistake in the declaration which could not have deceived him; for not only was the oyer correct, but the true sum awarded was mentioned, in two different places, in the same declaration.

There might have been a question whether the plaintiff was entitled to recover for the costs of the two suits mentioned in the award) but as the amount of the verdict is not stated, it cannot be discovered, from the case, whether the costs were included in the verdict, and no question on that point was raised at the trial.

Judgment for the plaintiff.  