Douglass v. Beam

Tilghman C. J. after stating the case, delivered his Opinion as follows: When the defendants had oyer of the bond, they might have taken advantage by demurrer, of any material variance between the declaration and the bond; but they cannot take such advantage on a writ of error. The point however is, whether the bond ought to have been read in evidence. The Court of Common Pleas were of opinion that there was no variance, because the word eght was insensible, and should be rejected. If the case rested solely on that, I will not give a positive opinion how the law would be. Courts have gone a great way in support of an action. Strictly speaking the word eght is insensible. I confess however the inclination of my mind to be, that the date is to be considered as the twenty-eighth of May; but I speak this with deference to others who hold a contrary opinion. I have no doubt however that upon the issue of payment, after oyer, the bond was properly received in evidence; the variance was altogether foreign from the issue, and was waived by the plea of payment. The only difficulty Which has occurred to my mind is, that although oyer was prayed, the bond was not placed on the record. But upon reflection and consultation with my brethren, who have had very long experience in the practice of the courts, I am satisfied that the bond is to be considered as having been placed upon the record. It is our practice to make short entries, without making up the full record. This custom, which was adopted to save time and expense, is often attended with the inconvenience which results from want of certainty. A very great inconvenience it is, but it must be submitted to; for it would produce incalculable mis [79] chief, if this court should all at-once proceed to reverse the judgments- of inferior courts, because the papers referred to in short minutes were not inserted on the record. It is evident that the counsel for the plaintiffs in error considered the bond as part of the record, because they gave notice to the adverse counsel to produce it on the argument in this court, which would have been altogether improper if it was not part of the record. In consequence of this notice it has been produced, and verified by the oath of the counsel who brought the action, and in whose possession it has always been. I am of opinion on the whole of this case, that there is no error in the proceedings in the Common Pleas, and that the judgment of that court be affirmed. Yeates J. of the same opinion. Brackenridge J. of the same opinion. Judgment affirmed.