Ehle v. Purdy
New York Supreme Court
Demurrer to plea. The plaintiff declared on a penal bond, and assigned breaches. The defendant craved oyer of the bond, and set it forth in his plea.
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Demurrer to plea. The plaintiff declared on a penal bond, and assigned breaches. The defendant craved oyer of the bond, and set it forth in his plea. It is a joint and several bond of the defendant and three other persons, executed to the plaintiff and one William, Willis, conditioned to indemnify and save harmless the plaintiff and Willis against any suit to be brought against them by one W. M. A. for money deposited in their hands by the defendant and the said W. M. A., and which was given up to the defendant. After setting forth the bond and condition, the defendant alleged that the bond…
1Opinion of the Court
By the Court.
The defendant objects to the varimce between the bond as declared upon, and as set forth in the plea upon craving oyer. We have had occasion recently to speak of the manner of taking advantage of such a variance. On receiving the oyer the defendant, if he finds it to be of an instrument different from that described in the declaration, should, without setting it forth, plead non est factum, and avail himself of the variance when the issue comes on to be tried, and the bond is offered in evidence; or he should set forth the bond as it is given to him on his craving oyer of it, and…
2Cited by9 opinions
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- McNairy v. ThompsonTennessee Supreme Court · 1853
- Gray v. JohnsonSuperior Court of New Hampshire · 1843
- Smith v. TallcottNew York Supreme Court · 1839
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