¶1By the Court,
¶2The condition upon which Swartwood’s deed to Catlin was deliverable was never fulfilled. Catlin agreed to give a bond to the overseers of the poor conditioned to maintain Isaac Booth for life, and the deed was to remain as an escrow with Mr. Darling till that was done. This was a condition precedent, which never y/as waived by Swartwood; and, non constat, that the proper bond was ever even tendered. Indeed, the contrary appears ; and for this default Swartwood disaffirmed the contract to .convey, and deeded to Elijah Booth, under whom *269the defendant claimed. It was not enough that Gatlin or •the Sheltons upon his retainer did in fact maintain Isaac Booth for life. Swartwood had a right to this bond, and, ¿t seems, becoming tired of waiting for it, and being troubled .as he said in a business for which he got nothing, he therefore deeded to Elijah Booth, with whom Isaac was living at •the time.
¶3The Hinmansit is conceded, had title to one-fourth of :the premises, but it is said that they cannot recover, because in the declaration the claim one-half of the premises. The first answer is, that the objection of variance was not made at the trial. But if .otherwise, we should now allow .the plaintiffs to amend on easy terms, rather than grant a new trial. The case of Holmes v. Seely, 17 Wendell, 75, 78 to 80, is not, as supposed, incompatible with such a course. Indeed, jt is expressly sanctioned by the cases cited at p. 80, and the opinion of the chief justice there. He thinks the verdict should be sustained in such cases by way of amendment, and not by simply overlooking the omission ; not by considering title admissible as a matter of absolute right where it varies from the undivided share claimed •in the declaration. The distinction is of value, so far at least as it gives the judge at the circuit such .control that fie may in his discretion exclude the proof, where he sees that •the defendant is surprised, or may be otherwise injured by She variance between the pleadings and evidence.
¶4In this case there must be a new trial, unless the plaintiffs consent that the postea be so framed that the verdict shall be for the Hinmans as to one-fourth of the premises ip question, and, as to the residue, for the defendant.