
    HANKS vs. EVANS.
    
      April 29th.
    a variance between thee, vlde"ce and de" parto*thepiain-dff’s demand, 18
    a writ of inquiry iome damages muft be founi'
    THE plaintiff in error brought his action on the case againt the defendant, and declared that in consideration of a horse he sold to the defendant, the defendant as-sumecl to pay him 12/. in carpenters and joiner s wtfrk. Judgment was entered by default against the defendant on the rules. On executing the writ of inquiry in court, the plamtiir s proof was that the defendant was to give 12/. for the horse, 3l. of which had been paid in a cow, and the remaining 9/. was to be paid in carpenter’s and joiner’s work. For this variance the court directed the jury to find for the defendant. They did so : and judgment was rendered for him. The plaintiff brought his writ of error.
   By the Court.

/The court below erred in deciding the variance between the declaration and the testimony to be fatal; the variance being only as to part of the plaintiff’s demand.

That court also erred in directing a verdict to be rendered for the defendant as in case of a non-suit; because, on executing a writ of inquiry, some damages, less f r more, must be found.

Judgment reversed.  