¶1— Justice, convenience, and common sense, require that this exception should not prevail. Equity would reform such *24a bond as is here set out, on the intrinsic evidence of mistake, which it bears on its face. The-condition is not to appear, and it is in principle' exactly the case- of the promissory npte mentioned by Lord Hardwicke, 2 Atk. 31, in which the borrower promised never to pay. The plaintiff ought to have declared on the instrument according to its legal effect; so that, whether the bond contain the objectionable word or not, the defect in the declaration, being equally the effect of accident,.and amendable below, is to be considered as actually amended here.
¶2Judgment affirmed.