Brooks v. Lowrie , 10 S.C.L. 342 ( 1818 )

The opinion of the Oourt was delivered by

Silliman, for the motion. Levy, contra.

Nott, J.

When the motion for a nonsuit was made on the circuit, the specific variance, which is now relied on between the.contract and declaration, was not pointed out by the counsel, nor observed by the Court; and I was surprised, when the case came into this Court, to find that the whole consideration had not been set out in the declaration. For nothing is more clear than, that the whole of the consideration of a contract must be stated, and if any part of an entire consideration, or of a consideration, consisting of several things, be omitted, the *plaintiff will fail on the ground of variance. 1 Chitty on Pleadings, 295. If a part of the consideration be frivolous, it may be omitted without prejudice; but the part omitted in this case formed an important feature in the case.

The Court is not disposed however to grant a nonsuit; but the defendant may have a new trial, and the plaintiff may amend his declaration, upon payment of costs.

Colcock, Cheyes, Gantt and Johnson, JJ., concurred.