
    Rockefeller & Miller vs. Hoysradt.
    Where the defendant, after craving oyer, sets it out, and then pleads non est factum, if the plaintiff produces such an instrument on the trial as is set forth in the oyer, the defendant cannot object that it varies from the declaration; but in order to avail himself of that circumstance, he must demur.
    Otherwise, where oyer has not been demanded or set out in the plea, although the plaintiff may have voluntarily furnished it
    Accordingly, the declaration being in debt as upon an attachment bond in a justice's court, to which the defendant pleaded non est factum, and the instrument produced in evidence was not a bond, but a covenant to pay the plaintiff $100, or all damages and costs he might sustain by reason of the issuing of an attachment, &.c.; held that, though oyer was served with the declaration, inasmuch as the defendant had not demanded it or set it forth, he might object the variance at the trial, and that it was fatal to* the action.
    Error to the Columbia common pleas. " Hoysradt sued Rockefeller & Miller in the court below, and declared in debt, as upon an attachment bond in a justice’s court; alleging, among other things, that the defendants by their certain bond, sealed, &c. acknowledged themselves held and firmly bound to the plaintiff in the sum of one hundred dollars, to be paid, &c. for which payment, &c.—proceeding in the usual form of debt on bond, and then adding—which said bond or writing obligatory was and is subject to a certain condition thereunder written, whereby after reciting, &c.; setting out the condition and alleging a breach. Oyer of the writing was served with the declaration. The defendants, without craving oyer or setting it out, pleaded non est factum. On the trial, the plaintiff proved that Rockefeller and one Van Ness commenced a suit against him by attachment before a justice, and were nonsuited on the ground that the affidavit was insufficient. The plaintiff then offered in evidence the obligation on which this action was founded, as follows : “ We jointly and severally promise to pay to Henry S. Hoysradt the sum of one hundred dollars, or to pay him all damages and costs he may sustain by reason of the issuing an attachment this day applied for by James IC. Yan Ness and John A. Rockefeller, if they fail to recover judgment thereon; and if judgment be recovered, that the plaintiffs will pay the defendant all moneys which shall be received by them from any property levied upon by the said attachment over and above the amount of such judgment and interest and costs thereon. Witness,” &c. Signed and sealed by the defendants. The defendants objected that there was a variance—that the instrument was in the alternative, and was not conformable to the statute. The court decided, that as the plaintiff had given oyer, there was no variance, and allowed the writing to be read in evidence. The defendants excepted. They also moved for a nonsuit, which the court refused, and the defendants excepted. The court decided that the plaintiff was entitled to a verdict for the debt and nominal damages, and the defendants again excepted. Yer-dict for the plaintiff-—assessing his damages at six cents. The court rendered judgment for the plaintiff on the verdict, with costs of increase, $36,23. The defendants now bring error.
    
      K. Miller, for the plaintiffs in error.
    
      8. Stevens, for the defendant in error.
    
   By the Court,

Bronson, J.

The plaintiff in the court below declared in the usual form as upon a bond in the penal sum of one hundred dollars, with a condition, which is set out and a breach assigned. The instrument which he produced on the trial was not a bond. It was a covenant, in the alternative, to pay one hundred dollars, or to pay in a certain event such damages and costs as might be sustained in consequence of issuing an attachment. The variance was fatal. (1 Chitty's Pl. 467, 8, ed. of 1837.) The fact that the plaintiff voluntarily served oyer or a copy of the obligation with the declaration, is a matter of no consequence. The only end that can be answered by pursuing that course, is to avoid the delay incident to a demand of oyer by the defen* dont before pleading. When the defendant craves oyer and sets it out, and then pleads non est factum, if the plaintiff produces such a deed on the trial as is set forth in the oyer, the defendant will be too late to. take advantage of a variance between the deed produced and that mentioned in the declaration, He should have demurred. But when oyer has not been demanded and set forth in the plea, although it may have been furnished, the defendant under Jhe plea non est factum may insist on the trial that the plaintiff shall produce such a deed as he has alleged to exist in his declaration. That is the very point and substance of the issue. "

This is not a trifling variance, like the mistake of a word, date or name. The plaintiff has entirely misapprehended the nature of the instrument. I do not see how the action in its present form can be maintained. The defendants have not acknowledged that any debt or sum certain is due to the plaintiff. They have covenanted to pay one hundred dollars, of, in a certain event, to do something else. The action is ■ misconceived.

I regret the necessity of coming to this conclusion; because, on the issuing of the attachment, the plaintiff should have had such a bond as that on which he has declared. But we cannot aid him in this form, without departing from the well settled rules of pleading.

Judgment reversed.  