Duncan v. Ray

Headnote

A variance of a year, as to the time of the sale of a horse, between a bill of particulars and the evidence given on the trial Will not be regarded.

Error from the New-York common pleas. Ray sued Duncan to recover the price of a mare sold to him. The sale was proved to have taken place in October, 1825. The counsel for the defendant objected to the evidence, and prayed the court to exclude it from the consideration of the jury, on the ground that the plaintiff had furnished a bill of particulars, in which he had stated that he sought to recover the price of a mare sold by himself and partner to the defendant on or about October 13th, 1824. The defendant insisted upon the variance. The court refused to exclude the testimony from the consideration of the jury, and the defendant excepted. The plaintiff having obtained a verdict, entered judgment and the defendant sued out a writ of error.