Cunningham v. Kimball

7 Mass. 65

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1810
• Status: Published

Opinion

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,

(a)

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.]