I concur in this opinion as to the principles maintained, but am not satisfied with the application of them, and am rather inclined to an affirmance of the judgment,
Tompkins J.The declaration is bad in not setting out the condition &c., as the statute requires. The defendant craves oyer, and sets out the bond and condition. He might have demurred and had judgment, but waiving all exceptions to thei nsufficient statement of the cause of action, he pleads non est factum without an affidavit. This court has decided, that under this plea without affidavit, the defendant might give in evidence any thing, that admitting the exe*242cution of the deed renders it void, as duress, coverture, erasure, &c. He offered no such evidence, but now claims a judgment on account of the variance to which he had before waived all objection, by pleading a plea, which admits that the instrument declared on, is well set out. The question, whether it be necessary to produce the bond, does not, I think, arise here. The circuit court erred in finding for the defendant, as I think, and if the plaintiff had filed a declaration on which a judgment could be rendered, I should have thought he ought to have had one. I concur with the president of the court in the disposition of the cause.
^ m factum for deft.