#### COMMERCIAL BANK OF DANVILLE v. W. H. S. BURGWYN.

Practice — Evidence—Exceptions to Depositions— Waiver-Variance Immaterial.

1. Exceptions made, on a trial, to depositions which had "been offered on two former trials without objection, and to which depositions no objection was made either at the time of taking or opening them, were properly overruled.

2. A variance between the allegation and proof, which is immaterial and does not mislead the defendant, will be disregarded.

*1233. Where in an action on notes, by the purchaser from the payee, the plaintiff admitted the allegation of defendant’s answer that the notes were obtained by the fraudulent representations of the payees, the burden was thrown upon plaintiff to show that he was a bona fide purchaser for value and without notice of the fraudulent representations of payee, but having' offered testimony to that effect the burden was again shifted and the prima faoie ease of plaintiff restored. Where, in such ease, the defendant offered no sufficient testi- , rnony to establish knowledge on the part of the plaintiff, at the time of the purchase of the note, of the alleged fraud of the payee, it was proper for the trial Judge to instruct the jury, if they believed plaintiff’s testimony, to find their verdict accordingly.

Civil ACTION, tried before Shuford, J., and a jury, at September Term, 1893, of YaNCe Superior Court. There was judgment for the plaintiff, and defendant appealed. The facts appear in the report of a former appeal (110 N. C.,' 267) and in the opinion of Associate Justice MONTGOMERY.

Messrs. J. B. Batchelor and A. W. Graham, for plaintiff.

Messrs. Pittman & Shaw, B. B. Peebles and John W. Hinsdale, for defendant (appellant).

MONTGOMERY, J.:

After hearing thorough argument and making a painstaking examination of the pleadings and the testimony, we are unable to discover any material difference in any aspect, between the case presented at this Term of the Court and the one heard and determined at February Term, 1892, and reported in 110 N. C., 267. The opinion delivered in that case, for the Court, by Justice Shepherd, renders it unnecessary for us to go over the ground again. It is true, however, that when the case was last tried at Yance Superior Court objection was made *124(for the first time) by the defendant to each and every question in the depositions in the case which went to connect the Southern Electric Light Company with the notes, either as endorser or endorsee. But these depositions had been offered in evidence by the plaintiff on two former trials of this action and no objection was made on said first two trials, and no objection was made and noted at the time said depositions were taken, nor at the time they were opened by the clerk. The Court properly overruled the exceptions. Carroll v. Hodges, 98 N. C., 418. Also, at the last trial there was suggestion of a variance between the complaint and the evidence. In the two former trials this suggestion was not made, and upon inspection the variance in its nature is immaterial and did not mislead the defendant. Clark’s Code, Sec. 269, and cases thereunder cited. Upon a close inspection of the additional testimony for the defendant, introduced on the last trial of the case, we do not find anything that adds in value to the testimony offered in the former trials. The court below •charged the jury in these words: “That the defendant having pleaded that the notes sued on were obtained by the fraudulent representations of the payees, and the plaintiff having admitted that allegation, and consented for the second issue to be answered in the affirmative, the burden was on the plaintiff to show that it was a bona fide purchaser for value and without notice of such fraudulent representations. That the plaintiff had offered testimony tending to show that it had acquired the notes bona fide for value, in the usual course cf business and while they were still current, and if the jury believed this evidence th.& prima faeie case of the plaintiff was restored, the burden of proof was then upon the defendants to establish knowledge on the part of the plaintiff, at the time of its purchase, of the alleged fraudulent representation, and that *125tbe defendants bad offered no sufficient evidence for that purpose, and lienee if the jury believed the testimony offered by the plaintiff they should answer the first and third issue in the affirmative. ”.

We think that the Court took a correct view of the character and weight of the testimony, properly instructed the jury thereupon and applied the law thereto. There is no error and the judgment of the Court below is affirmed.

Affirmed.