
    *Drummond v. Crutcher.
    October Term, 1796.
    Variance — Assignment of Bond — Case at Bar. — Declaration on a bond given to A, and by him assigned to the plaintiff. The bond produced in evidence had had an assignment indorsed to B, which was stricken out, except the signature of the obligee, above which was indorsed the assignment to .the plaintiff. There-is no variance between the declaration and the bond.
    This was an action of debt brought in the County Court of Caroline, by Drummond, assignee of H. Crutcher, against the appel-lee upon an assigned bond. The defendant put in the plea of payment, and at a subsequent term being allowed to amend, pleaded that the debt was due to a British subject and not recoverable in any court of this commonwealth, issue was joined upon both pleas.
    At the trial of the cause, the plaintiff filed a bill of exceptions, stating, that the defendant had been permitted by the court to give in evidence to the jury, that a certain James Fletcher, who was then dead, (and who it was discovered by an indorsement erased by the stroke of a pen, had been an indorsee) had said, that he had put a bond of H. Crutcher senior, to H. Crutcher junior, into the hands of Wallace & Co. to which evidence the plaintiff objected, but was over-ruled by the court: That the plaintiff moved the court to instruct the jury, that the mere possession of a bond, without in-dorsement, did not give a complete right to the same, to the possessor, but the court determined that the possession did vest the right.
    The judgment of the County Court which was for the defendant, being upon an appeal to the District Court reversed, and the verdict set aside, the cause was retained in that court for a new trial.
    At the trial in the District Court, the plaintiff filed a bill of exceptions, .stating, that the plaintiff had offered in evidence, a bond, given by the defendant, to H. Crutcher, upon the back of which had been endorsed, an assignment by H. Crutcher to James Fletcher, which said assignment had been stricken out by the mark of a pen, except the signature of H. Crutcher, and an endorsement to the plaintiff substituted in its place, just above the name of the assignor H. Crutcher, in a different hand writing from the first endorsement. That the court refused to suffer the bond with the endorsements to go in evidence to the jury.
    Verdict and judgment for the defendant, from which the plaintiff appealed.
   *ROANI5, J.

The only question is, whether the evidence offered by the plaintiff, corresponded with the case al-ledged in the declaration, or not? If it did, then it was proper, and should have been admitted by the court; if otherwise, it was rightly rejected.

The declaration states a bond given by the defendant, to Henry Crutcher and an assignment thereof to the plaintiff. It was therefore necessary, that the bond produced in evidence should answer this description. I think it did so, notwithstanding the appearance of a prior assignment, which' being erased, produced in itself no variance between the case alleged, and that proved.

The bill of exceptions, states, that this endorsement had been erased ; but when, or by whom does not appear. It may have been made by the obligee himself, who might never have parted with the possession of the bond, until the assignment made to the appellant. If indeed it had appeared, that there had been foul or improper conduct in the transaction, on the part of the appellant, it might have been otherwise.

But as the case comes up, the only question is, as to the fitness of the allegation to' the evidence.

CARRINGTON, J.

I entirely concur in the opinion just delivered. It is a naked case which exhibits no other poin ‘ than what respects the correspondence between the proof and the case stated; and as it appears to us, there.is no variance between them.

BYONS, J. — Concurred.

Judgment reversed and a new trial awarded with costs.  