delivered the opinion of the court:

The declaration must state' the contract on which the action is founded, truly and correctly. That is, either in the terms in which it was made, or according to the legal effect and operation of those terms, otherwise a material variance between the contract alleged, and the contract proved, will be fatal. If the contract as stated in this declaration was correct, then the plaintiff might have brought his action before the expiration of ninety days from the time of the contract; but by the terms of the note produced in evidence, the defendant was allowed 9O days to pay the debt. This variance is material, and of the very essence of the contract. The rule of court requiring that a copy of the cause of action shall be filed with the declaration, does not dispense with the necessity of legal precision in drafting a declaration. If it were so, then it would be unnecessary to declare at all. The copy of the cause of action would alone suffice. This decision may delay the plaintiff in the recovery of a just debt, but-the rules of pleading must prevail, and it is very .clear that the allegation in the declaration was not established by the note which was offered in evidence.

The motion for allowing leave to enter up judgment of non-suit must prevail. (See 1 Selwyn’s N. P. 116.y