
    Walter Peter v. Samuel Cocke Executor of Henry Cocke.
    April Term, 1794.
    Bonds— Declaration — V ariance — Immaterial.—Declaration upon a bond given to the plaintiff of the County of S., on account of Messrs. P. & G., Merchants in Glasgow. The omission in the declaration to state the County, or for whose use the debt was contracted, is not a material variance.
    
      Same — Same — Nonpayment — Quaere. — Declaration upon a bond given by the defendant, and by J. S. deceased, whom the defendant survived; breach, not the defendant had not paid. If it should not also have averred nonpayment by J. S. ?
    This was an action of debt, brought in the District Court of Williamsburg by the appellant, upon a bond given to him for and on account of Messrs. Glen and Peter, merchants in Glasgow. The declaration states the debt as due to the plaintiff without mentioning for whose use.
    The defendant without craving oyer, put in the following pleas.
    1st Payment — 2dly, That the debt was originally due to a British subject, and was acknowledged by the testator to the plaintiff, on account of Glen & Peter, merchants in Glasgow, who were British subjects; and was contracted before the 1st of May 1782, and was not transferred to a citizen of this state, nor to any person capable of maintaining an action in this commonwealth, at any time before the first of May 1775, for a valuable consideration. There are many other pleas, all unimportant ^in the decision. At the trial, an objection was made by the defendant to the admission of the bond in evidence; because the bond stated in the declaration was given to Walter Peter, and the one offered in evidence, is to Walter Peter of the County of Surrey on account of Messrs. Glen & Peter merchants in Glasgow. This objection being sustained by the court, the plaintiff filed an exception to the opinion; and a verdict and judgment being given for the defendant, the plaintiff appealed.
    Wickham for the appellant.
    It was necessary that this suit should be brought in the name of Walter Peter, the trustee, as he alone had a right to recover at law. The use to which the money was to be applied when recovered, was unimportant to the debtor; it was stated in the bond merely as a memorandum for the obligee, and would have been very unnecessarily set forth in the declaration. It is not usual to set out the bond at large in the declaration, provided the material parts of it are stated, so as to apprize the defendant of the true ground of the action. It might as well be contended, that the title, or place of residence of the parties if mentioned in the bond, should be carefully recited also in the declaration.
    
      
      Bonds — Declarations — V ariance — Immaterial.—For the proposition that, the omission in the declaration to state for whose use the debt was contracted is not a material variance, the principal case is cited in Cabell v. Hardwick, 1 Call 353, 359; Moore v. Fenwick, Gilm. 216. See also, Lewis v. Thompson, 2 Hen. & M. 100. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
   IvYONS J.

There appears to be a defect in the declaration which has not been noticed. It charges that the said Henry Cocke and a certain Richard Cocke deceased, whom the said Henry Cocke survived, gave the bond in question. And the breach laid is, that “neither the said Henry nor the defendant hath paid,” without averring nonpayment by Richard the other obligor.

Copeland for the appellant. It is a rule, that the plaintiff need not aver a matter, which it would be unnecessary for him to prove, if averred; and, if in the present case, the declaration had charged non-pajrment by the other obligor, the plaintiff could not have been required to prove it. The defendant pleads payment, and there can be no question, but that under the act of Assembly permitting him to prove all the discounts in his power, he might have availed himself of any payments made by the other obligor. The case of Busher v. Philips. Bull, nisi prius 163, seems to be in point. That was an action of debt, on a bail bond, against C. and the declaration stated, that the defendant and two others became jointly and severally bound: the breach was that the defendant had not paid.

■ — The plaintiff had judgment, although ‘'the defendant demurred specially, and stated as a cause, that the declaration did not aver non-payment by the other obligors.*

LYONS J. delivered the opinion of the court. The first objection cannot be sustained upon any principle. It was unnecessary to state in the declaration, the use or consideration for which the bond was given ; and if it had been stated, it would have been mere surplusage.

But we do not feel satisfied upon the objection to the declaration stated from the bench.

The cause must be sent back for a new trial, with directions to admit the bond as evidence but reserving to the appellee by the consent of the appellant the liberty of availing himself of any other legal exception to the proceedings already had, as if this judgment had not been rendered, or any appeal granted.

Judgment reversed. 
      
      See tile case of Arscott and Heale, Cro. Oar. 8. debt against 3 obligors, one pleads solvit ad diem. Replication that neither of the three nor any one of them had paid: on issue joined, verdict, that one had paid, held good. — Note in Original Edition.
     