
    Dauchy v. Smith and Olmsted.
    A demurrer to a declaration, containing a recital of the obligation on wbicb tbe suit is founded, is ill, for any allegation of variance; tbe advantage should be taken by abatement on oyer, or demurrer to evidence.
    This was an action of debt on bond; tbe declaration in common form.
    Mr. Ingersol prayed oyer of tbe bond, wbicb be recited at large in bis plea, and concluded by demurring to tbe declaration.
    Tbe bond appeared to have been taken to tbe plaintiff, in tbe capacity of constable of tbe town of Ridgefield. It was conditioned tbat Smith, one of tbe obligors, should appear before tbe Court of Common Pleas, at Fairfield, on tbe third Tuesday of April, 1184, answer to an action, in favor of James Sturges, against Mm, plead in custody of tbe court, and not depart without license.
    Mr. Ingersol took two exceptions under the demurrer:
    1. That the bond being taken by an officer in his official capacity, the condition ought to have been expressed in the declaration; for otherwise it does not appear but that it was taken for ease and favor, which would be illegal. Although it does not appear upon the face of the declaration that the bond was taken to an officer, yet, by inserting it in the plea, the whole becomes parcel of the record: and the advantage may in this manner be as well taken under a demurrer as by pleading a variance.
    2. The condition of the bond is unwarrantable: Eor it is, that Smith shall appear and plead in custody: That he shall suffer imprisonment at all events; which defeats the very design of bail. ‘,
    
   By the whole Court.

Eor aught that appears from the declaration, a good and sufficient bond is declared upon, and well described; and if the defendants would avail themselves of any variance "between the bond declared upon and that shown upon oyer, they should have taken advantage of it by plea in abatement, or demurrer to the evidence; the declaration, therefore, adjudged sufficient.

Note.— This adjudication is opposed to the English practice. See 2 Wilson’s Reports, 339, Turner v. Vaughan.  