#### Anonymous.

The declaration stated an undertaking by two with a third) to. run a race with him, and to pay him if he won *563The evidence was, of a race made between one of the two and the third ; for performance whereof, the other of two became his. surety on I lie day of the race.

Per curiam,

This is a fata! variance — you should have stated the contract as it really was. Mr. Taylor for the Plaintiff insisted, he could maintain it, and prayed time for thar purpose. So a special case was made; and af-terwards, in this term, the court calling the cause, Mr. Taylor declined arguing' it, and the Plaintiff was non-suited.

Note. — Vide Buller's Nisi Prius, 145.