Souter v. Davenport, 15 N.C. 600, 4 Dev. 600 (1834)

June 1834 · Supreme Court of North Carolina

15 N.C. 600, 4 Dev. 600

Joseph Souter v. David Davenport.

A variance between the bond declared on and that produced in evidence, can only be taken advantage of upon the trial; it forms no ground for arresting the judgment.

This action was originally commenced by a warrant in which the defendant was to answer the plaintiff “ in a plea of debt, the sum of one hundred dollars with interest.”

The plaintiff was nonsuited before the magistrate and appealed to the County Court of Buncombe, where he obtained judgment for $97" 84, principal and $6 03, interest. From this judgment, the defendant appealed to the Superior Court, where the cause was tried at the' special term held in July last, by his Honor Judge Martin. The plaintiff produced a bond of the defendants for g 350, upon which several payments were endorsed, and obtained a verdict for the balance due, viz: 5596 48. The defendant then moved in arrest of judgment, upon the ground of a variance between the warrant and the bond, which motion being overruled and judgment rendered upon the verdict, he appealed.

No counsel appeared for either party.

Gaston, Judge

After stating the facts as above, proceeded:- — The cause has been here submitted without argument, and the only error assigned by the appellant is clearly not sustainable. After verdict, it appears that defendant’s counsel moved in arrest of judgment upon the ground that the warrant which was the plaintiff’s declaration, and the bond offered in evidence, did Dot correspond; which motion was overruled by the court. Had there been a variance, which we by no means admit, the objection should have been taken on the trial. A motion in arrest can only be founded on some intrinsic cause appearing upon the face of the record.

The judgment is to be affirmed with costs.

Per Curiam. — Judgment affirmed.