Henry v. Brown
New York Supreme Court
THIS was an action of debt on a bond, tried at the Oneida Circuit, in September, 1820, before Mr. Justice Yates. The defendant, after craving oyer of the bond and condition, pleaded non est factum.
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THIS was an action of debt on a bond, tried at the Oneida Circuit, in September, 1820, before Mr. Justice Yates. The defendant, after craving oyer of the bond and condition, pleaded non est factum. At the trial, the plaintiff proved the bond, dated 12th of October, 1819, Conditioned to pay twelve hundred dollars, in six annual instalments; but the 1 . . defendant s counsel objected to its being read in evidence, because there was a variance between the oyer of the condition delivered to the defendant, and the original. The words in the condition of the bond were “ without any fraud or other…
1Opinion of the CourtWoodworth, J.
The variance does not alter the sense; it was not in a material part of the instrument, nor was the defendant surprised. *51The objection ought not to prevail, unless there is some strict rule of law, uniformly acted upon, which does not allow the Court to consider it immaterial.
In 5 Com. Dig. 125. B. 4. it is laid down, that a small variance between the obligation, upon oyer, and the declaration, does not avoid it; as if the declaration on a bill is, that “ he will pay,” and the bill says, “ if he pay,” the variance is immaterial. In 2 Salk. 659. the deed declared on was dated the 30th of…
2Cases cited2 opinions
- Johnson v. BloodgoodNew York Supreme Court · 1799
- Wardell v. EdenNew York Supreme Court · 1800
3Cited by5 opinions
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