majority">Woods, J.

The form of action adopted in this case, is well enough. Covenant is a remedy recognized by law for the recovery of damages for the breach of a covenant or contract under seal.

It is said, that in general, covenant will not lie on a contract in presentí, 1 Chitty’s PL 115. But the rule certainly has its exceptions, which it is not necessary now to specify. It is the usual remedy upon indenture of apprenticeship. It is common learning, that it lies on articles of agreement under seal, on deeds of separate maintenance, on covenants in deeds of conveyance, and on policies of insurance under seal. And it seems, also, that it lies on a bond ; for it proves an agreement. 1 Chitty’s PI. (8 American Ed.) 116, and note (a), and authorities there cited. Comyns’s Dig. Covenant, A. 2.

Covenant will not only lie on a bond, but would seem to be a better form of declaring than debt for a penalty securing the performance of the covenant, inasmuch as if the party elect to proceed for the penalty, he is precluded from afterwards suing for general damages, and it is said cannot, in case of further breaches, recover more than the amount of the penalty. Whereas, if he proceed in covenant, he may ultimately recover beyond the amount of the penalty. This is the doctrine of a variety of cases. Astley v. Welden, 2 Bos. & Pull. 345; Robinson v. Bland, 2 Burrow’s Rep. 1085; Bird v. Randall, 3 Ibid. 1351; Douglas, 97; Harrison v. Wright, 13 East, 347 - 8; Dick v. Gaskill, 2 Wheaton’s Rep. 184; 1 Chitty’s Pl. 118; Ld. Raym. 814.

It is a point in the defence, that a consideration for the defendant’s bond is not shown. We need not, however, inquire whether such proof is necessary in order to maintain the action. Ordinarily, in an action upon a deed, it is not necessary to show a consideration for the giving of the bond. A mere voluntary bond, given without any consideration, is good. This rule is subject to certain exceptions. When the bond operates in partial restraint of trade, a consideration is necessary to its validity, and must be shown. So, perhaps, when some act to be done by the plaintiff is the consideration, and constitutes a condition *69precedent, its performance must be shown. 1 Chitty’s Pl. (6th Amer. ed.) 366; Grubb v. Willis, 1 Serg. & Rawle, 107; 2 Black. Com. 446; Page v. Trufant et al., 2 Mass. 152. In the latter case, Parsons, C. J., says, “ A bond, from the solemnity of its execution, imports a consideration, the want of which the obligor is estopped by law to plead.”

The declaration describes the- instrument declared upon, as containing certain specific covenants, while the instrument proved, contains only a portion of the covenants set forth in the declaration. The variance relied upon is in matters of description. Now the rule upon this subject is stated by Mr. Greenlea-f with his accustomed accuracy, precision, and brevity: — “ If the allegation contains matter of description, and be not proved as laid, it is a variance, and is fatal.” Thus, in an action for malicious prosécution of the plaintiff upon a charge of felony, before Baron Waterpark of WaterforTc, proof of such a prosecution, before Baron Waterpark of Water parle, Ayas held to be fatally variant from the declaration.

So in an action of tort, founded on a contract, every particular of the contract is descriptive, and a variance in the proof is fatal. 1 Greenl. Ev. § 64.

The allegation in the declaration, that “ the said John Stickney and Judith Stickney, in case they should survive the said Jacob C. Stickney, should have the income and use of one half of said homestead farm, and the use of half of the farming tools on said farm during the remainder of the natural lives of the said John Stickney and Judith Stickney,” was an allegation of a material provision of the contract, and clearly descriptive of it, and being alleged, its proof was essential in order to show its identity. The contract stated, is the foundation of the plaintiff’s title or right to recover, and if it be stated Avith unnecessary particularity, it is necessary, nevertheless, that it should be proved as stated. 1 Greenl. Ev. § 51.

The true question, arising upon this branch of the exceptions, is, not 'whether it was essential to the maintenance of the action, that the declaration should have contained an allegation of the provision under consideration, its breach not being x-elied upon *70as the ground of action ; but it is, whether, in order to maintain the issue on the part of the plaintiff upon the first plea, being alleged, its proof is essential.

The issue upon that plea, involves the question whether the defendant made the deed which is described in the plaintiff’s declaration. In order to maintain it on his part, it was necessary that the plaintiff should show a contract executed by the defendant, agreeing substantially in all its parts with that set out in the declaration. It was necessary that the proof should coincide with all the allegations descriptive of the material 'provisions of the bond. There is no pretence, however, that the evidence showed such a bond. The provision under consideration wmuld render the contract a very different one from that given in proof. It is not open to doubt, that it is a material part of the contract declared on; and a failure to prove it as alleged, is a failure to prove the issue on the part of the plaintiff. No competent proof, then, -was offered, showing the existence of the contract declared on. 'And the plaintiff, failing to prove the existence of the contract declared on, which was the foundation of the action, of course failed to show any right of action. Moreover, it has been decided in this State, that in an action upon a deed, where the deed has been lost, and cannot be produced, it is necessary, in accordance with a well-settled practice, not only to set out the substance of the instrument in the declaration, but also to prove it as alleged. Rand v. Rand, 4 N. H. Rep. 278. The language of the court in that case is, “ when a deed is lost and cannot be produced, he who relies upon it in pleading, ought to be held to state, and to prove the substance of the whole instrument; for the same reasons that he is bound to produce the instrument when not lost. He ought not to be permitted to show such parts of the instrument as may be favorable to him, and leave it to the other side to show the rest; but he ought to show the whole, both in his pleading and in his proof.”

. The declaration in Rand v. Rand, alleged, that the defendant was indebted to the plaintiff by his writing obligatory, under seal, in a certain sum, and that the writing was lost by time or acci*71dent, or destroyed by the fraud of the defendant’s intestate, without setting out the condition of the bond. Non est factum was pleaded, and at the trial, the plaintiff offered evidence of a bond, such as was described in the declaration, excepting that it contained a condition that the obligor should maintain the plaintiff and his wife during their lives. Objection was taken to the evidence ; and it was holden, that there was a material variance between the proof and the declaration. The evidence did not support the issue on the part of the plaintiff. It was not shown, that the deed declared on, was the plaintiff’s deed.

In that case, the plaintiff’s allegation, descriptive of the deed declared on, failed of a full description of the material provisions of the entire deed proved. The proof was broader than the allegations. In the present case, the proof falls short of the allegations descriptive of the essential provisions of the bond.

The declaration in the present case, was evidently intended to be framed in accordance with the rule of pleading recognized in the case referred to ; but misdescribed the deed by the addition of a provision materially varying the rights and duties of the parties to the instrument.

We think the doctrine of the case of Rand v. Rand, decisive of the question under consideration ; and that the objection to the evidence offered in support of the declaration, upon the ground of variance, was well taken.

In .this state of the case, the court below erred, in refusing to nonsuit the plaintiff, according to the motion of the defendant, and leaving it to the jury to find the existence of the contract declared on, without evidence.

The court should have given the jury the instructions requested by the defendant. After the plaintiff had voluntarily ceased to call upon the defendant for support for six years, the defendant was entitled to notice that the plaintiff desired further support at his hands ; and no action could be maintained against him for a neglect of duty in this particular, until after such notice, and a demand to furnish the support.

And that right was not lost or waived, by reason of what transpired between the defendant and Benjamin Colby. Colby *72was the agent of the plaintiff, only to get a note renewed,'not to make a demand, or arrange with the defendant, in regard to the plaintiff’s future support.

It does not appear, that the plaintiff desired support from the defendant, or that the defendant would have refused it, if demanded by the plaintiff, or by any one authorized to make demand - in his behalf. Colby’s unauthorized conversation, and the defendant’s remarks in reply, are immaterial. In order to entitle the plaintiff to this action, it is not only necessary that he should desire support, but that he should also notify the defendant of it. The defendant had done nothing by which he had waived this right to demand and notice.

The verdict must be set aside, and

A new trial granted.

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