Kemp v. M'Guigin

The plaintiff, in his declaration, undertakes to describe a penal bond, as one whereby the defendants acknowledge themselves to be held and firmly bound unto the said D. K. “ in,” &c. “to be paid the said D. K. when” &c. the bond produced on oyer, *52contains no acknowledgement to D. K. and no stipulation to whom the penalty is to be paid. The rule of law is, that any variance in setting out a written contract, will be fatal Whether we consider the words “ unto the said D. K.” erased, as forming a part of the declaration, (as the plaintiff wishes them to be taken) or, with the defendant, consider them as erased and stricken out, will make no difference; for still the contract set forth in this declaration, and the contract shewn, differ materially from each other. I think, therefore, without going into the other points raised by this demurrer, that it must be sustained.

That D. K. might recover on this bond, I have no doubt; but his declaration must show a title to recover. That his name was intended to be inserted in the penal part of the bond, is very probable; but, being ommitted, it cannot be safely declared on as though it had been inserted; proper averments of its having been made, and delivered to him, would supply the defect; as it is, he does not appear to have any right to sue for the penalty; his right, in equity, to a specific performance of the condition, in another matter, not here to be considered.

Demurrer sustained. — Judgment for defendant.