
    Charles B. Morris vs. Willis Fort.
    A declaration on a note “ to pay whenever after requested” is not proved by tile production of a note payable 90 days after date.
    The rule requiring copies of all notes and contracts sued on, to be attached to the declaration, does not excuse any irregularity of pleading.
    Debt on a sealed Note.
    THE declaration in setting out the promise, stated that the defendant bound himself to pay whenever after requested.
    The note produced in evidence was a promise to pay ninety days after date.
    A non-suit was moved for on the ground that the note offered in evidence did not support the declaration ; which was over-ruled, and a verdict was had for the plaintiff.
    The present motion was to reverse the decision below, and for leave to enter up a non-suit, on the ground thal; the deed offered in evidence varied from the one declared on.
    
      Caldwell, for the motion.
    
      Miller, contra.
   Mr. Justice Gantt

delivered the opinion of the court:

The declaration must state' the contract on which the action is founded, truly and correctly. That is, either in the terms in which it was made, or according to the legal effect and operation of those terms, otherwise a material variance between the contract alleged, and the contract proved, will be fatal. If the contract as stated in this declaration was correct, then the plaintiff might have brought his action before the expiration of ninety days from the time of the contract; but by the terms of the note produced in evidence, the defendant was allowed 9O days to pay the debt. This variance is material, and of the very essence of the contract. The rule of court requiring that a copy of the cause of action shall be filed with the declaration, does not dispense with the necessity of legal precision in drafting a declaration. If it were so, then it would be unnecessary to declare at all. The copy of the cause of action would alone suffice. This decision may delay the plaintiff in the recovery of a just debt, but-the rules of pleading must prevail, and it is very .clear that the allegation in the declaration was not established by the note which was offered in evidence.

The motion for allowing leave to enter up judgment of non-suit must prevail. (See 1 Selwyn’s N. P. 116.y

Justices Nott,, Richardson and Johnson, concurred,  