
    *William Browne v. David Ross & Co.
    [November, 1791.]
    Bonds — Debt—Plea of Payment — Variance.—In debt upon a bond payable at a future day If tbe declaration describes tbe penalty as payable on that day. and tbe defendant pleads payment, be cannot object to tbe variance at the trial of tbe cause.
    David Ross & Company declared against Browne in his own right upon the following bond: “Know all.men by these presents, that I, William Browne, of Surry county, executor of William Browne deceased, am held and firmly bound unto David Ross & Company in the just and full sum, &c.” without naming any day of payment in the penalty, which bore date the 17th day of December, 1787. The condition of the bond again styled him “Executor of William Browne deceased,” and was in the usual way for payment of half the sum mentioned in the penalty, upon the 1st of January, 1789. The bond was signed “William Browne;” and the declaration was as follows: “David Ross & Company complain of William Browne in custody, &c. of a plea that he render to them four hundred and ninety-six pounds nineteen shillings and ten pence, which to them he owes and from them unjustly detains; for that whereas the said defendant, on the 17th day of December, 1787, at the parish of Southwark, in the county aforesaid, by his certain writing obligatory sealed with his seal, and to the court now here shewn, the date whereof is the same day and year, acknowledged himself to be held and firmly bound unto the said plaintiffs in the just and full sum of four hundred and ninety-six pounds nineteen shillings and ten pence, to be paid unto the said plaintiffs on or before the first day of January, 1789. Yet the said defendant, although often required, &c.” There was no oyer of the bond; but the appearance bail pleaded that the defendant had paid the debt in the declaration mentioned, and the plaintiffs took issue. Upon the trial of the cause, the defendant objected that the bond did not agree with the declaration; «"and therefore ought not to be received as evidence; but the objection being overruled, he filed a bill of exceptions to the court’s opinion, and appealed to this court.
    Call, for the appellant.
    It is a general rule that variance between the declaration and the evidence offered in support of it, is fatal, 1. Because it tends to mislead the defendant. Eor, if he comes prepared to encounter one charge, and another is suffered to be brought against him, he is necessarily subject to surprize. 2. Because it is the constant object of the law, that the judgment shall settle all disputes relative to the subject for which the action is brought; and therefore, the pleadings ought to be so framed as to preclude future con-" troversies respecting it. In the present case, however, the penalty, (which contains no day of payment,) was due presently; but the declaration states it to be payable at a future day; and therefore, the allegata and probata do not agree. The difficulty is not removed by the condition; for, there is no reference to the latter in the declaration ; nor is oyer prayed. It stands, then, lipón the penalty only, which is payable immediately, and not at a future day. Consequently, the variance between the declaration and the evidence is clear; and therefore, the judgment cannot be sustained. Cowp. 766, 769, 178; Dougl. 640, 644.
    Campbell, contra.
    There is a profert of the bond; which incorporates it into the declaration and supersedes the necessity of oyer. Eor, as the act of assembly directs that the penalty shall be discharged by the sum in the condition, with interest and costs, the court is obliged, although the defendant does not call for it, to look into the bond to ascertain the amount to be paid; which necessarily unfolds the period of payment. Besides, the day of payment in the condition, is, in fact, the day when the penalty becomes forfeited; and therefore, the declaration states it rightly.
    Cur. adv. vult.
    
      
      See venera]ly, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   *PENDLETON, President,

delivered the resolution of the court as follows :

The judges are of opinion, that the variance contended for on behalf of the appellant is not fatal. The declaration is, indeed, new, and the court does not recollect to have seen one like it before: But, yet they cannot, when all the circumstances are considered, decide that it excludes the evidence. For, in the first place, if the defendant had, in fact, paid the debt, and wished to avail himself of it, he ought, according to the strictness of pleading, to have cua-ved oyer of the .bond, and pleaded payment of the sum in the condition; which would have made the bond part of the declaration, and shewn the day when it became payable. But the effect is similar as the case stands; for the object of oyer is only to identify the instrument; and, when the defendant pleads to the bond referred to in the profert, he admits it to be the same with that described in the declaration ; which answers the purpose of identity full as well as oyer, apd precludes exception upon the ground of variance, at the trial. In the next place, it is to be observed, that the plea is payment generally, without specifying either time or sum. But, as it is obvious that he meant the principal and not the penalty, the indefinite plea should be referred to the condition; which discloses the period when the money was to be paid, and, by fixing the time when the penalty was forfeited, ascertains the day when that became payable. The judgment, therefore, is to be affirmed.  