The declaration stated the tenor of a lost bond for three hundred and fifty dollars, that it was assigned to the plaintiff, and that it was lost by time and accident. *Page 392 Plea, non-assignavit, and that the bond was not lost by time and accident, and issues.
The plaintiff proved, by one Matthews, that the bond was sent by him for the purpose of putting it into the clerk's office to bring suit on; that he left it with the clerk, directing that suit should be brought on it; the clerk died, strict inquiry has been made of his successor, who has searched for it without effect. Matthews stated that the bond left was for three hundred and fifty dollars, payable in cattle, the same witness proved, there was on the bond an assignment to the plaintiff. N. W. WILLIAMS, for the defendant, insisted there was a variance between the bond described in the declaration and the one proved, that it was not the same bond, and consequently the plaintiff was not entitled to recover; a bond for three hundred and fifty dollars in money is surely different from $350 payable in beef cattle. Here is no plea of non est factum, which would have put in issue, whether there ever was such a bond as that declared on. The plea of the defendant admits the existence of such a bond, and only contests the assignment and its loss. The Court are not prepared to say whether there is a substantial variance between the bond declared on and the evidence. The jury will consider whether it is the same bond or whether it was assigned to the plaintiff.
Verdict for the plaintiff, and reasons filed in arrest ofjudgment.1
NOTE. — The doubt suggested in the original note to this case has been resolved in favor of the jurisdiction. Murlock v. Brown, 7 Hum. 61, citing Cherry v. Mann, Cooke, 268. — ED.
1 Quære, whether an action can be sustained on such a bond after being lost. It would seem that an action at common law can only be maintained in the case of a lost band, where it was for money only.