Delivered the opinion of the Court as follows: •
This suit was instituted on a promissory note, executed by the Defendant, and made payable to the Plaintiff. : After describing the note accurately, with the exception of thé time when it became payable, which is altogether omitted, the declaration proceeds, in the usual: form to state, that the Defendant, being so liable, assumed to pay the siun mentioned in the note when he should be thereunto required, &c.
To this count a special plea was filed which, on demurrer, was held insufficient. Judgment, on the demurrer, .being rendered for the Plaintiff, a writ of enquiry was awarded.
On executing this wise the Plaintiff produced a note payable sixty days after date, and offered to prove that it was the note on which the suit was instituted, and that the omission to state the day of payment in the declaration'was the mistake of counsel.
The Court refused to permit the note to go to the jury; and also instructed them that unless a note conforming to the declaration should be adduced, or its absence accounted for, they, must presume it to. have been passed away or paid, The jury under -these instruc-. *217tions found one cent damages, for which judgment was rendered. To this judgment the Plaintiff has sued out a writ of error.
‘ The errors assigned are, 1st. That the variance was pot fatal; 2d. That on a writ of enquiry the production of the note was unnecessary.
Courts, being established for the purpose of administering real justice to individuals, will feel much reluctrance at the necessity of deciding a cause on a slip in pleading, or on the inadvertence of counsel. They can permit a cause to go off on such points only when some rule of law, the observance of which is deemed essential to the general administration of justice, peremptorily requires it.
' One of these rules is, that in all actions on special agreements or written contracts, the contract given in evidence must correspond with that stated in the declaration. The reason of this rule is too familiar to every lawyer to require that it should be repeated.
It is not necessary to recite the contract in hoec verba, but if it be recited tiie recital must be strictly accurate. If the instrument be declared on according to its legal effect, that effect must be truly stated. If there be a failure in the one respect, or the other, an exception, for the variance, may be taken, and the Plaintiff cannot give the instrument in evidence.
The plea of non ansnmpsit denies the contract; and an instrument, not conforming to the declaration either in words where it is recited, or according to its legal effect where the legal effect is stated, although proved to be the act of the Defendant, is not the same act, and therefore does not maintain the issue on his part.
In this case, the. legal effect of the promissory note is stated; and that effect on a note, having no day of payment, would be that it was payable immediately. This declaration goes on that idea, and dvers a promise to pay when-required. A note payable sixty days after date is a note, different- from one. payable immediately, *218and would not support the issue had non assumpsit been pleaded and issue joined on this plea.
Now, what difference is produced by the default of Defendant? He confesses the note stated in the declaration, but lie confesses no other note. The necessity then of showing a note conforming to the declaration is precisely as strong on executing a writ of ¡enquiry, as on trying the issue. No reason is perceived why a variance which wopld be fatal in the one case, would not be equally fatal in the other.
The cases cited by the Plaintiff’s counsel have been considered, but they do not come up to this. They are not cases where the legal effect of the written instrument, offered on executing the writ of enquiry, has differed from that of the instrument stated in the declaration.
The Court is also of opinion that the production of the note, on executing the writ' of enquiry, was necessary. The default dispenses with the proof of the note,. but not with its production. In England damages have in some circumstances been assessed without a jur^, but it is not. stated that those damages have been assessed without a view of the note. The practice of this country is to require that the note should he produced, pr its absence accounted for, and the rulé is a safe one,
Judgment affirmed.