
    David Stanwood versus John Scovel and Trustee.
    In an action by an indorsee against the maker of a promissory note payable on demand, the declaration set out an indorsement in common form, but by the indorsement proved, payment was not to be demanded within a year from the date there of. Held a variance, notwithstanding the year had expired before the action was commenced.
    Leave to amend granted after verdict.
    Whether a foreign attachment is not dissolved by the defendant’s dying insolvent, qucsre.
    
    Assumpsit against the maker of a promissory note, dated August 27, 1822, payable to Ezekiel Scovel or order on demand, and by him indorsed to the plaintiff. The declaration set forth an indorsement in common form ; but at the trial the writing upon the note appeared to be as follows : —“Sept. 19th, 1822. Pay the contents &c. to D. S. or order, provided he makes no demand for the payment thereof before one year from the date aforesaid.” The action was commenced in 1824. The defendant objected to the admission of the note in evidence, because of the variance, but Parker O. J. overruled the objection, and a verdict was found for the plaintiff.
    
      March 21d. 1826.
    
      July 21st 1826
    Rand, in support of the objection,
    now referred to Chi tty on Bills (6th ed.), 358, 359, cites 4 Campb. 176, — 1 Marsh. 176, — 3 T. R. 645, — and 1 H. Bl. 605 ; Clutty on Bills, (6th ed. j 183, cites 4 Taunt. 30.
    Whiting, for the plaintiff.
    
      
       See Patterson v. Patten, 15 Mass. R. 473.
    
   Wilde J.

delivered the opinion of the Court. It is a familiar and well settled rule of pleading, that in declaring on a contract, the plaintiff is bound to describe it truly, and according to its legal effect; and that any material variance, however trivial, will be fatal; and that the defendant may take advantage of it on the general issue.

It is not, however, always necessary or proper to set out the entire contract, for this, when it consists of several distinct parts, might lead to unnecessary prolixity. It is sufficient to state such parts only as are material to the action. But if the parts omitted go to qualify the parts set out in the declaration, and are essential to the plaintiff’s title, the omission will be fatal. Whatever forms a constituent part of the plaintiff’s title must be truly described. A contract, therefore, in the alternative, must be so stated in the declaration. And so a conditional contract must not be set out as an absolute one, although it should appear by evidence, that the condition had been performed ; unless the condition be merely a defeasance of the contract, in which case it is considered as matter of defence, and may be omitted in the declaration. 6 East, 570 ; 8 East, 8 ; 2 East, 2 ; 2 Doug. 669.

According to these rules of pleading, the declaration m this case is clearly defective, and is not supported by the evidence.

It is averred in the declaration, that by the indorsement the contents of the note were ordered to be paid according to the tenor thereof, that is, on demand ; and by the indorsement it appears, that payment was not to be made until after a limited time. This is a fatal variance.

It has been argued that this limitation or restriction, as to the time of payment, is no part of the contract, as between the present parties, but a stipulation between the indorser and indorsee. But we cannot so understand the indorsement. It is very clear, we think, that the defendant had a right to avail himself of the limitation or proviso as to the time of payment; and that if this action had been commenced before the expiration of the time limited, the defendant might have barred the action by pleading the proviso. The indorsement is a constituent part of the plaintiff’s title, and an essential link in the chain of evidence ; and the proviso is a part of the indorsement, qualifying the cdntract, and ought to have been set out in the declaration with proper averments.

Parker C. J.

dissented, on the ground that as the action was not commenced until after the time limited in the indorsement had éxpired, the restriction had become functus officio, and so it was useless to set it out in the declaration.

Verdict set aside and a new trial granted.

After this opinion was delivered, the plaintiff moved to amend ; and at March term 1827, Rand objected, that in equity the motion should not be allowed, because it would be a hardship upon the trustee, who, after a verdict against the plaintiff in the Court of Common Pleas, paid over the money in his hands to the principal defendant, and also upon the creditors of the principal defendant, he having died insolvent. 2 Brod. & Bing. 395 ; 4 Maulé & Selw. 329 ; 7 T. R. 699 ; 2 New Rep. 135 ; 6 Taunt. 483. But the Court granted leave to amend upon payment of costs, suggesting however for the consideration of the plaintiff’s counsel, whether the defendant’s dying insolvent would not discharge an attachment of property in the hands of a trustee, as well as other attachments. 
      
       See Curley v. Dean, 4 Connect. R. 265.
     
      
       Chitty’s Pl. (6th Amer ed.) 338.
     
      
       See Revised Stat. c. 90, § 105; Patterson v. Patten, 15 Mass. R 474; Bullard v. Dame, 7 Pick. 239.
     