The exception to the decision of the court below, in admitting the note in question, as evidence in the case, is founded on a supposed variance between the note offered and that described in the condition of the bond declared upon. The question is not as to the identity of the note, as a question of fact, but whether the note offered.is to be taken, by legal intendment', to he another, and different note from that described in the contract.

Should it be found, that the exception is well founded' in this particular, it would be well to inquire, how far the error of admitting it, as evidence, affords a ground for reversing the judgement. The expression in the contract, that the defendants “ shall well and truly pay, satisfy^ and discharge, a certain mortgage deed,”' admits of no. other-construction, than,, that they shall pay tk«-*352secui'ed by the mortgage; and, as the contract proceeds to describe the several notes secured by the mortgage, and to be paid by the defendants, the reference to the mortgage may be regai'ded as mere matter of description ; and the contract may be considered as simply á contract to pay the notes there designated. It is clear that this contract is broken, if the notes are not paid by the defendants when they become payable, and that it is not necessary, that the plaintiff should have paid them, in order to sustain his action. The contract being proved, the onus probandi rests with the defendants, and, if performance is relied on as a de-fence, the production of the notes, by them, would tend to support that defence. But it is equally clear, that, as the existence of the notes, as well as the obligation to pay them, is admitted by the bond, it is not necessary for the plaintiff to produce either notes or mortgage. The case bears no analogy to the action of ejectment on mortgage, where, for obvious reasons, it is necessary to produce the note on which the mortgage is predicated. Had the evidence therefore been rejected, the defendants would still have been under the necessity of shewing performance ; and if no evidence to that effect were offered, judgement must have passed against them. The error therefore,if error there be, is wholly immaterial. It is an instance of the exhibition of unnecessary evidence on the part of the plaintiff, and evidence in no wise prejudicial to the defendants.

If, however, we'regard the decision of the court below as important, it will be found that the exception is not well founded.

The objection to the evidence was that the note was variant from that described in the condition of the bond. Upon a comparison of the two instruments, it is found, that the note is correctly described in the bond, except that the time when the note became payable is not there specified. This is an omission merely of one particular, but such an omission is not a variance. There is enough to identify the note, and when the note is produced, it answers the description. There is no discrepancy nor any difference, except that the note is not as fully described as it might have been. It is true, that, where a note does not express any time of payment, the law intends that it is payable on demand : but this inference of law is rebutted, in this case, by the production of the note. The law makes no such intendment, in a case like this, for the mere purpose of creating a variance, and defeating the intention of the parties. Nor is there any reason, in such a case, for any such intendment. The note is sufficiently identi*353fied, and may be referred to, to supply any omitted particular; and the supplying it produces no contradiction, and no variance. In the case put, there is the strongest reason for making the in-tendment: it becomes necessary to perfect a contract, and into effect the intention of parties. But to apply such an intendment here, would be to create artificial difficulties, in the way of justice, for no better purpose than the mere exercise ofingenuity-.

It is further objected, that the note produced is signed by W. Everts and B. Bishop, whereas the bond describes the note of W. Everts. The remarks already made are applicable here. This is another particular in which the description of the instrument is silent, but it cannot be necessary, to the purpose of this description, to include every particular. Besides, the mortgage was executed by Everts alone, and the note in question, being joint and several, is well described as executed by him, although it was signed by Bishop also ; especially as the latter signed as surety merely.

It is also urged, that this note is not described in the mortgage-. This is true; but it is to be observed, that the mortgage is not made, by the reference, a part of the contract. The condition of the bond expressly provides for the payment of the note in question and it becomes therefore immaterial, whether it be secured by the mortgage or not.

But if it were material, a very satisfactory answer to the objection is furnished by the bond itself. The bond not only provides for the payment of this note, but declares it to be one of the notes secured by the mortgage : the defendants are therefore estopped by the bond, from denying the lact.

Judgement affirmed.