
    Thomas Kittredge vs. William W. Russell.
    No exception lies to a refusal to grant a continuance.
    A witness, not remembering the words of an admission,- may state its substance.
    Without a statement of the evidence, the court cannot decide that there was a variance at the trial.
    Contract, for work done and for money paid for the defendant.
    At the trial in the Superior Court, before Devens, J., after the plaintiff had stated that he had closed his case, the defendant objected that the proof did not support the allegations of the declaration, and moved that the plaintiff be nonsuited. At the suggestion of the court the plaintiff amended his declaration and filed an account for money had and received, which amendment was made upon terms which were complied with. The defendant asked the court to continue the action, and give him time to answer and make further preparations for trial, but the court ordered the defendant to proceed to trial then and there, and ruled that his objection to the declaration was merely technical, and stated that it seemed clear that the defendant understood what was the exact point in controversy as then presented, and that his interests did not, in the opinion of the court, require a continuance ; to these rulings the defendant excepted.
    The plaintiff then introduced further testimony, and a witness was asked by the plaintiff to testify to what he heard the defendant state on the witness stand at a former trial of the case. The defendant objected, unless the witness could state the exact language used, and also state in full the question asked at the time. The court ruled that the witness, if able, might state, the substance of the defendant’s testimony.
    After the plaintiff had again closed his case, the defendant again objected that the proof did not support the allegations of the declaration, and moved that the plaintiff be nonsuited. .The court overruled the motion. The defendant did not rest his case, but after having introduced evidence asked the court to rule that the plaintiff could not maintain the action in law. The court refused so to rule. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.
    G. W. Searle & J. L. Nichols, for the defendant.
    
      C. Cowley, for the plaintiff.
   By the Court.

The refusal to grant a continuance is not a subject of exception. Evidence of the defendant’s admissions is competent in support of the plaintiff’s case, and the witness may testify to the substance of them if he cannot remember the exact words. The evidence introduced by the plaintiff not being reported, it does not appear that there was a variance.

Exceptions overruled.  