THE declaration in a suit on a delivery bond, stated the condition of the bond to be for the delivery of the goods on the twentieth of June, 1840, at the farm of D. McKay. The condition of the bond, as shown on oyer, was for the delivery of the goods on the second of June, 1840, at the house of said McKay. Held, on general demurrer to the declaration, that the variance was fatal. 1 Chitt. Pl., 305, et seq.
If in a suit on such bond, the plaintiff obtain judgment on a demurrer to the declaration, the damages must, in the absence of any agreement of the parties, be assessed by a jury. Tannehill v. Thomas, 1 Blackf., 144; Thompson et al. v. Wilson, Id., 358.