The opinion of the court was delivered by

The motion in arrest will not prevail. The declaration is sufficiently technical to sustain a judgment after verdict. If there are defects, they are such as should have been met by a special demurrer. The declaration alledges that the plaintiff was the creditor of Walworth “in a large sum, to wit, by just and lawful notes and book accounts, not less than $500; and the said notes the said defendant, being party and privy thereto, did justify to be made and executed,” &c.

It is objected here that it does not appear with sufficient certainty what notes the defendant justified to be made; — and if that objection had been met by a special demurrer, it might have been fatal; but, after verdict, those defects are cured, which, from the nature of the defect, must have been supplied by proof, in order to have obtained the verdict. If the proof had been that the defendant justified the notes to have been made, which Walworth was owing the plaintiff, there could have been no recovery, as the proof would have failed to establish the ground of the claim. By the rule of construction, ordinarily, the expression, said notes, would mean the notes last specified; — but in this case there is coupled with the expression something that limits and defines its application, and shows that the notes which Walworth owed to the plaintiff could not be the notes alluded to. The notes that the defendant is charged with having justified, are the notes that he was party and privy to, and those, of course, could not be the notes which Walworth owed to the plaintiff.

The question of variance is of more importance, and, if this had been an action against Walworth upon these notes, and they had *407been misdescribed, as some of them now are, I should have no doubt that the variance would be fatal. It therefore becomes important to see what is the gravamen of the action, — what the plaintiff alledges,-r-and then see if there is any variance between the averment and the proof. The plaintiff avers that “the defendant was party to certain false, fraudulent, deceitful and covinous notes of hand against Zaeheus Walworth,” and then goes on to describe the notes, alledging them all to be of the value of $300, “ and made, had and executed to avoid the debt and right of the plaintiff, a creditor of said Walworth;” and that the defendant, “ being party and privy to said notes, did then and there justify the same to be made, had and executed upon good consideration.”

The covinous notes described are four in number, and are set out and described, as to their sums, in a schedule referred to, and are there described as they are set out in the plaintiff’s declaration. The notes are also set out in the defendant’s writs against Walworth, and they are there described as they are in the schedule and in the plaintiff’s writ, with a single exception, — one note in the defendant’s writ being described as payable in six months from date, and in the plaintiff’s writ it is described as payable in one day after date; but the description in the plaintiff’s writ is the true description of the note.

But there are two notes misdescribed, — one as for $26.57, when the true sum is $26; and one for $69.67, when the true sum is $69.69, — and it is to this variance between the notes and the declaration that the objection is taken.

The gravamen of the charge consists in the defendant’s justifying the notes as being made Iona fide, — and, without showing in some-, way that the defendant did so justify them, the important allegation! would not have been proved, and the action must have failed. If the plaintiff had described the two notes, last named, as they appear to have been written, how could he have shown, when produced on trial, that the defendant justified those notes ? Not by the schedule, nor by the writs, nor by the confession of judgment, for then he would have been met by the question of variance. So far as the case finds, the only evidence that the defendant had justified the notes was the fact that he had made writs upon them; and, having made out a schedule upon them, accepted a confession of judgment upon *408them, and took execution. Perhaps that is the most satisfactory evidence that the nature of the case admitted, and this evidence applied to the notes as' described in the plaintiff’s writ. We therefore think that the objection is not well taken, and that the plaintiff has described such notes, and such only, as the defendant justified to be made. The judgment of the county court is affirmed.