Benjamin v. Dockham

The plaintiff’s declaration was for milk delivered to the defendant by the plaintiff at the defendant’s request. His proof was of a delivery to the defendant’s wife, who was living apart from her husband, without means of support, by reason of his cruelty. The only ground of exception which we are asked to consider is, that there was a variance between the declaration and proof. If there were such a variance, as the case has been tried on its merits, and it appears from the statement of the defendant’s counsel himself that there can have been no surprise, an amendment would be allowed. Peck…