Smith v. Hicks
New York Supreme Court
This was an action of assumpsit tried at the New-York circuit in October, 1828, before the Hon. Ogden Edwards, one of the circuit judges.
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This was an action of assumpsit tried at the New-York circuit in October, 1828, before the Hon. Ogden Edwards, one of the circuit judges. The declaration contained two counts, each for money had and received, lent and advanced and paid, laid out and expended; in one the indebtedness was laid to the testator, and a promise to him ; in the other the indebtedness was laid in like manner, and the promise to the plaintiffs: From the evidence on the trial the following facts appeared: By an arrangement between the testator and Hicks, made in January, 1820, the latter became special bail for one…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The first question in this case is whether there was a material variance between the bill of particulars and the proof. The variance relied on, I presume, is this;, tire plaintiffs claim the half of $1211,26, when by the proof they are entitled to recover, if at all, the half of $1288,91.
A bill of particulars has been sometimes said to be an amplification of the declaration; its object is to apprize the opposite party of the nature of the action or defence. It has therefore been decided by this court that it need not be as special as a count upon a special contract;…
2Cases cited2 opinions
- Varick & Bacon v. JacksonCourt for the Trial of Impeachments and Correction of Errors · 1828
- Bonney v. SeelyNew York Supreme Court · 1829
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- Freehling v. KetchumMichigan Supreme Court · 1878
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