Clinton v. Porter , 2 Cai. Cas. 176 ( 1804 )

Per Curiam.

Take the effect of your motion with costs. ^[1]

Motion granted.

[1] Where the oyer varies from the instrument declared on, the defendant may set it forth in his plea and demur, or he may, without setting it forth, plead non est factum, and avail himself of the variance at the trial. Ehle v. Purdy, 6 Wend. 629. After twelve days demand of oyer by the plaintiff of a release pleaded by the defendant, he may treat the plea as a nullity and onter the defendant’s default. Field v. Goodman, 4 Wend. 214. A small difference between the oyer of a bond and the declaration is not regarded. Henry v. Brown, 19 J. R. 49. The defendant has the same time to plead after delivery as at the time of demand. Mu'holand v. Van Tine, 8 Cow. 132; see Varick v. Bodine, 3 Hill, 444.