Gregg v. Vause ( 1832 )

The opinion of the Court was delivered by

O’Neall, J.

The variance between the proof and the process, complained of in this case, is properly a variance between the proof and the bill of particulars endorsed on the process. The general allegation in the process is, that the defendant is indebted to the plaintiff “ in the sum of seventy dollars due on open account, a copy of which is endorsed.” The account endorsed, is, “ 1829, To rent of plantation one year, thirty dollars : — five thousand rails, to have been placed on the same, twenty dollars: — repairing, fencing, &c., twenty dollars:— seventy dollars.” The proof was, that the account accrued in 1830, and was due 1st January, 1831. The presiding Judge held that the variance between the proof and the bill of particulars, was unimportant, and decreed for the plaintiff. In this conclusion, I think the Circuit Judge was correct. The office of the bill of particulars is, to confine a general count to the proof of some specific demand. It is, in other words, notice to the defendant to what matters the plaintiff’s proof will be directed. If proof differing from the bill of particulars in some slight circumstances, such as the time when an account accrued or is due, and not in the general nature and- character of the demand described in it, is offered and received without objection from the defendant, he cannot afterwards object to a recovery against him, on account of a variance between the allegata et probata; for the general allegation and the proof does correspond. The party is indebted at the time the action -is'brought, by open account. The variance is between the bill of particulars or notice of the proof to be given and that received. The objection is to the admissibility of the evidence on the ground of surprise in that the party is notified that proof of indebtedness at one time will be given in evidence, and the proof offered, is of indebtedness at another time.

The motion for a new trial is dismissed.

JOHNSON and Harper, JJ., concurred.

Motion dismissed.