
    
      BUQUOI vs. HAMPTON.
    
    Appeal from the court of the first district.
    Every variance, in point of time, between ’ke allegation and the proof, is not fatal.
    A clause in a contract, that differences arising under it shall be settled by arbitrators, cannot be urged at the trial, if not pleaded.
   Martin, J.

delivered the opinion of the

The plaintiff claims 81682 87 1-2 for work done anil materials furnished, in repairing the defendant’s house, between the 1st of January, and 19th of April, 1826.

The plaintiff had a verdict, which the de-r , fendant unsuccessfully attempted to set aside; and judgment being given accordingly, the latter appealed.

Our attention is first drawn to two bills of exceptions to opinions of the inferior judge, overruling the plaintiff’s objection to ti e introduction of evidence of work performed before the first of January, 1826—and to the introduction of evidence of any work performed by the plaintiff, or the value thereof.

The first evidence was objected to became it did not correspond with the allegation in the petition which states, work performed after the 1st of January.

The second—because by a clause of the contract on file, it was agreed, that any difference arising thereout, should be referred to arbitrators.

I. Parties must, indeed, state all circumstances of time and place; but they are not bound so strictly to do this, as to render the least variance fatal. In an indictment, the commission of the offence need not be proven on the very tday stated.

II. If the defendant wished to avail himself ^ie c^ause relating to arbitration, lie ought to have done it, in limine litis, by his an- " swei’ after denying the allegations, joining issue and going to trial, he cannot be allowed to prevent the introduction of evidence to support the charge.

Carleton Lockett for the plaintiff, Preston for the defendant.

On the merits, the facts have been found by the jury, and the judie has declared himself satisfied with their verdict; and it does not appear to us that justice requires that the case be remanded.

We are, however, bound to allow the objection of the defendant and appellant, to the allowance of interest on an unliquidated claim. Code of Practice, 554.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, that there be judgment for the plaintiff for the sum of twelve hundred and fifty dollars and costs in the district court, and that the plaintiff and appellee pay costs in this court.  