
    Jesse Thatcher v. R. J. Heisey.
    Error to the district court of Clinton county.
    
      Hildebrant d Sloane for plaintiff in error:
    
      Reynolds & Co. v. Morris' heirs, 7 Ohio St. 310; White v. Brocaw, 14 Ohio St. 339; 2 Selden, 179; Van Sand. Pl. 474; 1 Kernan, 25.
    
      Doan d Walker for defendant in error:
    Code, sec. 131, 133; 1 Kernan, 368; Duel v. Spencer, 1 Abb. Pr. Rep. 237; Cotheal v. Talmadge, 1 E. D. Smith, 575; 10 Barb. 321.
   By the Court :

The petition stated that the plaintiff performed work and labor for the defendant on his mill dam. The evidence offered by the plaintiff and admitted by the court was that the plaintiff performed work and labor for the defendant in his harvest field helping him to harvest his grain. Held, that the variance between the petition and the evidence was material, and the evidence should not have been admitted, although the defendant neither alleged nor offered to prove that he had been misled in any respect by the variance. Hill v. The Supervisor, &c. 10 Ohio St. 621-2, proposition 4, followed and approved.

Judgment reversed and cause remanded.  