
    William Cunningham versus Porter Kimball.
    When the evidence at the trial differs from the declaration, in a part not constituting the gist of the action, the Court will not send the cause to a new trial.
    This was an action of trespass on the case for the recovery of damages for a deceit in the sale of a mare.
    The declaration contained several counts for the same cause of action. The fifth count, upon which the verdict was taken, alleges that the defendant, at, &c., on, &c., being possessed of a marc, which was unsound, and infected with a bad and inveterate sore in her shoulder, which rendered her of no value; and the plaintiff being then and there also possessed of a mare and a pair of steers, as of his own proper goods, of the value of eighty dollars; the defendant, to induce the plaintiff to exchange his said mare and steers with the defendant, for his said mare, and a note, or piece of paper, did, then and there, falsely and fraudulently affirm to the plaintiff, that his, the defendant’s, mare was well, sound, * and good.. Whereupon the plaintiff, giving full credit [ * 66 ] to the said affirmation, was instantly induced to, and did then and there, deliver his said mare and steers to the defendant, in exchange for his said mare, and a note, or piece of paper; and the defendant then and there delivered his said mare, and a note, or piece of paper, to the plaintiff, in exchange for his said mare and steers. The plaintiff then avers, that the defendant’s mare was not, at the time of the delivery, exchange, and affirmation, aforesaid, well, sound, or good ; but was infected with a bad wound, oi swelling, commonly called a fistula, in and over her shoulder, which made her utterly unfit for service, and good for nothing; of all which the defendant was well knowing; and so, by means of his said false affirmation, hath greatly injured and defrauded the plaintiff.
    The cause was tried, upon the issue of not guilty, before Sewall, J., at the sittings, after the last September term, in this county.
    At the trial the plaintiff produced a witness, who testified that he was present at the time of making the bargain, but did not hear the conversation which passed between the parties; that he was called upon by the defendant to witness the bargain, and the defendant then stated, in his presence, that he had agreed with the plaintiff to deliver to him a bay mare, which was not then present, safe and sound ; that he was to have a horse of the plaintiff in exchange, which was then and there delivered; and that the plaintiff was to keep a certain pair of steers, understood by the witness as then belonging to the plaintiff, for one week, and that the defendant was to deliver a piece of paper to the plaintiff, the nature of which he, the witness, did not know ; and that he, the witness, received a paper from the defendant, which he delivered to the plaintiff, but did not know what the paper was. It was also in evidence that the steers were a part of the bargain. The defendant objected, that this evidence did not support any one count in the plaintiff’s declaration, because it was not alleged in any [ * 67 ] * of the counts, that the plaintiff was to keep the steers a week. The judge overruled this objection, and directed the jury that the variance was immaterial; and thereupon the jury returned a verdict, in which they found the defendant guilty as to the fifth count, and not guilty as to the other counts.
    The defendant’s counsel excepted to the direction of the judge to the jury, and thereupon moved for a new trial. The action stood over to this term, upon the said motion; and now
    
      A. Bigelow, in support of the exception,
    argued that there was a material variation between the contract, as charged in the declaration, and as it was shown in evidence at the trial. The action being founded on a contract, the contract ought to be truly set forth, and to be proved as set forth. 
    
    
      Bigelow, sen. for the plaintiff.
    The authorities cited do not apply to the point before the Court. In all of them the variance related to what constituted the gist of the action, which, in the case at bar, is the false affirmation.
    This false affirmation of the defendant being the gravamen of the action, and the jury having found it, the Court will not send the cause to another trial, merely to determine the unimportant question, whether the plaintiff did, or did not, undertake to keep a pair of steers for the defendant one week. If he did so undertake, and has failed to fulfil his engagement, the defendant may bring his action; if not, he has no cause of complaint.
    
      Blalce, in reply,
    urged the necessity of a conformity between the injury alleged and that proved. If verdicts are not set aside for variances like that which exists in this case, a verdict and judgment in one action will cease to be a bar to another for the same cause. Here the keeping the steers formed an essential article of the bar gain ; and if the terms of the bargain do not form the gist of the action, and are to be considered as inducement only, the case oí Bristow vs. Wright & Al. is in point to show that, even in such case, the allegata and probata must agree.
    * The counsel for the defendant moved also in arrest of [ * @8 ] judgment, on the ground that the count, upon which the verdict was taken, was uncertain and insufficient; but they did not appear to rely much upon it.
    
      
       5 Esp. 133, 127, Lord Raym. 735, 792, Sands & Al. vs. Ledger.—Doug. 605, Bristow vs. Wright & Al.
      
    
   By the Court.

The objection in this case arises from a supposed variance between the declaration and the evidence given at the trial. If the action had been founded on the contract, and the gravamen had been the non-performance by the defendant of his part of it, there would have been some weight in the objection. But the whole gist and foundation of the plaintiff’s action is the defendant’s false and fraudulent affirmation; and, in this view, the variance is not such as to make it necessary or fit to send the cause to another trial; since the jury had all the essential facts before them, and have given their verdict thereon.

As to the motion in arrest of judgment, there seems no ground for it. The evidence at the trial explained any apparent uncertainty in the declaration,

Judgment on the verdict. 
      
      
         [It is not easy to see how the evidence at the trial could affect a motion in arrest of judgment.— Ed.]
     