
    COPELAND vs. MAY.
    The declaration stated the tenor of a lost bond for three hundred and fifty dollars, that it was assigned to the plaintiff, and that it was lost by time and accident. Plea non assignavit and that the bond was not lost by time and accident, and issues.
    The plaintiff proved by one Matthews, that the bond was sent by him for the purpose of putting it into the clerks office to bring suit on: that he left it with the clerk directing that suit should be brought on it; the clerk died, strict enquiry has been made of his successor, who has searched for it without effect. Matthews stated that the bond left was for three hundred fifty dollars payable in cattle, the same witness proved, there was on the bond an assignment to the plaintiff. N. W. Williams for the defendant insisted, there was a variance between the bond described in the declaration, and the one proved, that it was not the same bond, and consequently plaintiff was not entitled to recover, a bond for three hundred and fifty dollars in money, is surely different from $350 payable in beef cattle.
    Whether on the pleas of non assignavit, and that the bond was not lost, the defendant can avail himself of a variance between the bond as set out in the declaration, and as proved.
    Harris for the plaintiff.
    Such a bond as is declared on is admitted by the pleas of the defendant, and whether assigned to the plaintiff or not, is proper matter for the jury to determine on the evidence they have heard.
   Per curiam.

Here is no plea of non est factum which would have put in issue, whether there ever was such a bond as that declared on. The plea of the defendant admits the existence of such a bond, and only contests the assignment and its loss. The court are not prepared to say whether there is a substantial variance between the bond declared on, and the evidence. The jury will consider whether it is the same bond or whether it was assigned to the plaintiff.

Verdict for the plaintiff, and reasons filed in arrest of judgment. 
      
       Quere whether an action can be sustained on such a bond after being lost. It would seem that an action at common law can only be maintained in the case of a lost bond, where was for money only.
     