delivered the opinion of the Court.

The only question raised by this appeal is, whether the paper offered in evidence, and set out in the bill of exceptions, was admissible under the pleadings.

The declaration contains three counts; all of them state the cause of action to be a writing obligatory, whereby the defendant acknowledged himself to be bound to the plaintiff, in the sum of $950, to be paid on demand.

Issue was joined on the pleas of non est factum and payment.

The plea of non est factum imposes on the plaintiff the onus of proving the execution and delivery of the bond sued on. Union Bank vs. Ridgely, 1 H. & G., 416; Edelin vs. Sanders, 8 Md., 118. “ In debt on bond, or other specialty, when the deed is the foundation of the action, the plea of non est factum is proper, when the plaintiff’s profert cannot be proven as stated.” 1 Ch. Pl., 483.

The rule is that the allegata and probata must agree; a party cannot declare upon one written instrument, or cause of action, and give in evidence another and different instrument of writing. “ If there be a substantial variance between the instrument set out in the narr. and that offered in evidence, such variance may be taken advantage of under the plea of non est factum, and will be fatal to the plaintiff’s suit.” 1 Ch. Pl., 305, et seq. It is not necessary to set out the paper in its precise words: “it suffices if it be stated substantially, that is, according to its true legal effect and operation.” 1 Ch. Pl., 305; Ferguson vs. Harwood, 7 Cranch, 413; Armstrong vs. Robinson, 5 G. & J., 413.

Applying this simple elementary rule to the present case, we have no doubt of the correctness of the ruling by the Circuit Court. The instrument of writing offered in evidence was essentially different from that described in the na.rr. in substance and in legal effect. It is in no sense an obligation for the payment of $950 on demand.

The consideration in part stated in tbe contract, is a subsisting debt of $950, due and owing from tbe defendant to tbe plaintiffs; but bis contract as evidenced by tbe paper is not to pay that sum on demand as stated in tbe narr.; but a contract to ship and consign to the plaintiffs certain crops of wheat, corn, and tobacco, to be sold by them on commission, tbe proceeds to be applied to the payment of bis present debt, and also a.ny future debt which be may owe, by reason of acceptances of bis drafts or bills upon tbe plaintiffs. .

- An inspection of tbe paper show's too plainly, to require any argument, the complete and fatal variance between tbe instrument described in tbe declaration, and tbe paper offered in evidence.

Judgment affirmed.