
    *Bell v. Allen’s Administrator.
    March, 1812.
    i. Debt — Declaration—Bond—Material Variance. — A ■writing' "beginning, “Know all men, &c. that I, H. R., of the County, &c. am held and firmly bound,” &c. and running throughout in the name of H. R. alone, is not to be received as evidence in support of a declaration against H. R. and H. B„ charging that they both acknowledged themselves to be indebted, &c. notwithstanding the name ofH. B. was signed under that of H. R., and issue was not joined on the plea of non est factum, or nil debet, but of “payment by H. B.”
    See Atwell’s Administrators v. Towles, IMunf. 176.
    In an action of debt, in the District Court of Prince Edward, on behalf of Daniel A. Allen, administrator of Daniel Allen, sen., deceased, against Henry Raw-lins and Henry Bell, the declaration charged that both the defendants “acknowledged themselves to be indebted” to the plaintiff’s intestate, and charged them throughout as if they had jointly executed the bond on which the action was founded. The defendants being arrested at different times, a judgment by default was entered, and confirmed, at Rules in the Clerk’s Office, against Rawlins. Bell, without praying oyer, pleaded payment, and issue being joined thereupon, a verdict was found for the plaintiff, subject to the opinion of the Court, whether a writing (set forth in hasc verba) be proper evidence to support the declaration. The writing in question began, “Know all men by these presents, that I, Henry Rawlins, of the County of Buckingham, am held and firmly bound,” &c. and did not mention the name of Henry Bell in the body of it; but his name was signed under that of Henry Rawlins.
    Upon this special verdict, (the cause having been transferred to the Superior Court of law, for Buckingham County,) judgment was entered for the plaintiff; whereupon the defendant, Bell, obtained a writ of supersedeas from a judge of this Court.
    Peyton Randolph, for the plaintiff in error. Wirt, for the defendant.
    
      
      Bond — Signing—Effect.—in Beery v. Homan, 8 Gratt. 51, it was held that to constitute a valid bond of the party, the intention to bind himself must appear on the face of the instrument; that the signature and seal form a, part thereof, and furnish prima facie evidence that the person so signing and sealing the bond intended to make himself a party thereto, and to be bound by the stipulations thereof; although the name of the party so signing, sealing and delivering the bond may not be inserted in the penalty or recited in the condition. Aiuasit, J., in delivering the opinion of the court said: “The case of Belli). Allen, 3 Munf. 118, does not actually decide that the bond there offered in evidence, was not the bond of the security because his name did not appear in the body of the instrument, but it was rejected when offered in evidence, on the ground of an alleged variance between it and the bond described in the declaration. If, however, it is to be inferred that the case was decided upon the ground that the bond was invalid as to the surety for the cause aforesaid, the authority of the case is impaired by the decisions of this court in the cases of Bartley v. Yates, 2 Hen. & M. 398; Beale v. Wilson, 4 Munf. 380; Raynolds v. Gore, 4 Leigh 276; and was in effect overruled in Crawford v. Jarrett, 2 Leigh 630.”
      See further, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   Tuesday, March 17th, 1812,

JUDGE ROANE

pronounced the following opinion of the Court.

“It seems to the Court here, that the paper offered in evidence to support the declaration, materially varying from the one declared on, (the admissibility of which *first-mentioned paper, was reserved for the opinion of the Court by the verdict of the jury,) was improper evidence to support the declaration, and that the said judgment is erroneous;” which was therefore reversed, &c. and judgment was entered in favour of the plaintiff in error.  