— “ Had the defendants claimed and obtained oyer of the bond, and set it out in their plea of non est factum, it would have made the bond, as set out in the plea, a part of the declaration, and the plea would have applied only to the bond so set out, not to the bond as described in the declaration ; and upon the trial, the question would have been, whether the defendants executed the bond set out in the. plea, and variances between it and that described in the declaration, could not have been taken advantage of. But in this case, as the plea was pleaded without oyer, the question on the trial was, ‘ whether the deed as described in the declaration, was executed by the defendants.’ 1 Chitt. Pl. 433 — 483; Williams v. Bryant, 5 M. & W. 447. It appears, prima facia, at least, that it was not. Stephen II. and Stephen S. Colms will not be presumed to be the same person. See Kimmersley v. Knott, in the English Common Pleas, reported in the Law Reporter, vol. 2 N. S. 186.”

Judgment affimed, &c.