McNair v. Gilbert
New York Supreme Court
This was an action of assumpsit, tried at the Oswego circuit, in December, 1827, before, the Hon. Nathan Williams, one of the circuit judges. The declaration contained the common money counts. The defendants pleaded, 1. Non assumpsit; 2. Non assumpsit infra sex annos ; and 3. An insolvent discharge under the act of 1813, obtained 27th April, 1818. The plaintiff took issue upon the second plea, and to the third replied a new promise; which the defendant denied by a rejoinder.
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This was an action of assumpsit, tried at the Oswego circuit, in December, 1827, before, the Hon. Nathan Williams, one of the circuit judges. The declaration contained the common money counts. The defendants pleaded, 1. Non assumpsit; 2. Non assumpsit infra sex annos ; and 3. An insolvent discharge under the act of 1813, obtained 27th April, 1818. The plaintiff took issue upon the second plea, and to the third replied a new promise; which the defendant denied by a rejoinder. On the trial of the cause the plaintiff claimed to recover upon four promissory notes, three bearing date 11th August,…
1Opinion of the Court
By the Court,
Savage, Ch. J.
Slight variances between the bill of particulars and the evidence will not be regarded. The true rule on the subject seems to be, that variances are immaterial, unless they are calculated to mislead the defendant. Such an effect could not have been produced from the claim of interest in this case; the objection was therefore properly overruled.
It did not appear whether the notes were negotiable or ■not. It seems to have been decided in this court, (10 Johns. *347R. 104,) that where a note is shewn to be lost or destroyed, and the fact does not appear whether it was…
2Cited by26 opinions
- Wright v. DickinsonMichigan Supreme Court · 1887
- Blade v. NolandNew York Supreme Court · 1834
- Montgomery v. LamptonCourt of Appeals of Kentucky · 1861
- Dusenbury v. . HoytNew York Court of Appeals · 1873
- Lazell v. LazellSupreme Court of Vermont · 1840
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