Douglass v. Rathbone & Lyman

There is a material variance between the condition of the bond as stated in the declaration, and the condition as it is set out upon the oyer. The declaration omits to state that the rail-road company was to pay on demand. A demurrrer, after setting out the condition upon oyer, is a proper mode of taking advantage of the variance. (Rockefeller v. Hoysradt, 2 Hill, 616.) (a) The declaration is also bad for not alleging that the costs had been demanded of the rail-road company. The defendants are sureties, and a demand of the principal is parcel of the contract. (Nelson v. Bostwick, ante, p. 37.) If there-has been no demand, the bond is not forfeited.

Judgment for the defendants.