The only question is, whether the evidence offered by the plaintiff corresponded with the case alleged in the declaration, or not ? If it did, then it was proper, and should have been admitted by the Court; if otherwise, it was rightly rejected.
The declaration states a bond given by the defendant to Henry Crutcher, and an assignment thereof to the plaintiff. It was therefore necessary, that the bond produced in evidence should answer this description. *2811 think it did so, notwithstanding the appearance of a prior assignment, which being erased, produced in itself no variance between the case alleged, and that proved.
The bill of exceptions states, that this indorsement had been erased; but when, or by whom, does not appear. It may have been made by the obligee himself, who might never have parted with the possession of the bond, until the assignment made to the appellant. If indeed it had appeared, that there had been foul or improper conduct in the transaction, on the part of the appellant, it might have been otherwise.
But as the case comes up, the only question is, as to the fitness of the allegation to the evidence.
Carrington J. — I entirely concur in the opinion just delivered. It is a naked case which exhibits no other point than what respects the correspondence between the proof and the case stated; and as it appears to us, there is no variance between them.
Lyons J. — Concurred.Judgment reversed, and a new trial awarded, with costs.