
    Lewisburg.
    Sterrett v. Teaford.
    (Absent Brooke, J.)
    1847. July Term.
    
    To take advantage by demurrer, of a variance between the declaration and the bond declared on, the defendant must crave oyer of the bond.
    This was an action of debt brought by Sterrett against Teaford in the Circuit Court of Augusta county, in 1839, upon the following note : We or either of us do promise to pay or cause to be paid unto John Sterrett, his heirs or assigns against the first day of October 1823, one hundred and twenty-five dollars Virginia currency ; it being for value received. Given under our hands this 9th day of October 1819.
    Signed,
    
      Henry Teaford,
    
      John Teaford,
    The declaration contained several counts. The first declared on the paper as a promissory note. The second declared on it as a writing obligatory. The others were the common counts intended to meet the plea of the statute of limitations, by shewing a subsequent promise to pay.
    The defendant John Teaford, who was the only party sued, pleaded nil dehel, and the statute of limitations; and at a subsequent time, he demurred to the secoud count of the declaration without craving oyer of the bond declared on ; though it was obviously the object of the demurrer to take advantage of the variance between the bond as described in the count and the paper relied on to sustain it. The Court sustained the demurrer, and thereupon the cause coming on for trial, the defendant demurred to the evidence, and the Court sustained this demurrer, and gave judgment against the plaintiff, who applied to this Court for a supersedeas, which was granted.
    
      Fultz, for the appellant.
    
      Baldwin, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

It seems to the Court, that the question of variance between the promissory note in the proceedings mentioned, and the writing obligatory of which proferí is made in the second count of the plaintiff’s declaration, is not presented by the demurrer to that count of the declaration, no oyer having been craved of the last mentioned writing ; and that the said Circuit Court erred in sustaining, instead of overruling that demurrer. It is therefore considered by the Court that the judgment of the said Circuit Court be reversed and annulled with costs. And it is further considered that the said demurrer to the second count of the declaration be overruled, and the verdict of the jury, together with the defendant’s demurrer to the evidence, set aside, and the cause remanded to the said Circuit Court for further proceedings therein, with leave to the parties, or either of them, to plead de novo.  