Frantz v. Smith

Magruder, J., delivered the opinion of this court. This is an appeal from a judgment of Jllleghany county court in favor of the defendant, in an action brought by the appellant. The. suit was upon a bond in which the testator of the appellee was a security. It recites a former judgment against another person, the principal obligor in the bond, and a writ of error obtained to remove that judgment to the Court of Appeals. The condition of the bond is in the usual form of bonds of that description. The defendant, after craving oyer of the bond, &c,, pleaded performance of the condition, and the plaintiff in his replication set forth as the breaches of the condition of the bond, that the defendant did not cause to be transmitted within the time required by the law, a transcript of the record; did not prosecute the writ of error with effect; and has not paid and satisfied the judgment of the county court, &c. It appears by an agreement filed in the case, that issues were joined. ■ The plaintiff in the course of the trial took two bills of exception, and these inform us what are the questions, which in this case, we are to decide. It appears by the first exception, that the court below instructed the jury, that in this suit the plaintiff was not entitled to recover without producing the judgment in the said bond mentioned, or a copy thereof, as evidence of his claim: this court decided otherwise in the case of Lloyd vs. Burgess, December term, 1846. A plea which would deny the existence of that judgment without denying the bond which recites it was inadmissible in the case, because as the court in Lloyd vs. Burgess said, it would deny “ a fact which the defendant’s intestate (testator in the case before us) has expressly admitted under his hand and seal in his bond.” [285] It is true that neither the record, nor the agreement of counsel, tell us what were the points in issue; but in this case, there could have been no issue joined, which required the introduction by the plaintiff of this testimony. The defendant did not deny the existence of the judgment, but pleaded that he had in all respects performed the condition of the bond, and the existence of the judgment was thereby affirmed. The evidence ought to be confined to the points in issue. The issues must have been confined to the breaches charged in the plaintiff’s replication, and the production by the plaintiff of the original judgment could not have been necessary; although all the breaches assigned by him had been denied by the defendant, the latter could only have rejoined that he had transmitted within the time required by law, a transcript of the record— that he had prosecuted his writ of error with effect—that the judgment, &c. had been satisfied, or had been reversed; but these rejoinders could present no issue, which required the plaintiff to prove the original judgment in order to recover damages upon any one of them. The court therefore erred in giving this instruction. The plaintiff being required by the above instruction to produce the judgment spoken of in the bond upon which this suit was brought, offered in evidence a judgment of Alleghany county court, corresponding with the recital in the bond, except that in the former, the judgment is to bear interest, and in the latter, nothing is said about it. It is stated in the bill of exceptions, that the bond was filed in that case, and that there was no other judgment or cause at that term between the parties. To this testimony no objection was made, except because of the variance in regard to interest. The question then is, whether because of this single variance, the judgment stating, and the bond omitting to state, from what time the judgment was to bear interest, the original judgment was admissible in evidence? There was certainly evidence tending to prove that this was, the very judgment, to remove which, the bond was executed. In 1st Term Reports, 239, the declaration in an action for [286] bribery stated, that the precept was directed to the Mayor only. The precept produced at the trial was directed to the Mayor and Burgess. It was considered sufficient. In 2 Camp. 525, the declaration staled that the fi. fa. was directed to A. B. and C. D., sheriffs of Middlesex, and the writ when produced was directed to the sheriff of Middlesex generally; it was holden to be no variance, A. B. and C. D. being at the time sheriffs of Middlesex. In the case of the State, use of Wilcoxen vs. Wooton, 4 H. & J. 21, an action was brought upon an administration bond, which recited that the two obligors first named, were the administrators of George Wilcoxen, and conditioned for the faithful administration by them of the personal assets of said George. The name of the intestate was not George, but Anthony; and the only testimony which the plaintiff produced in order to prove the amount of assets in the hands of the administrators, was “ the inventory of the goods and chattels of Anthony Wilcoxen A Parol testimony was offered to show the name of the intestate, the testimony was rejected by the court below, but upon an appeal the judgment was reversed. The ground of the decision is not stated, but it may be inferred from the argument at the bar, that it was because it appeared from the proof, that the bond was given by the administrators of Anthony Wilcoxen, and the variance was a mistake committed in that case, (as in this) by the obligors themselves. The case in 4 Wend. 675, is very much like this case. It was an action of assumpsit brought against a sheriff for money collected by him on execution, on which, the declaration stated, was an endorsement directing him to levy $242 16 and his fees, and which he then and there levied of the goods of the defendant. The plaintiff in order to sustain his action, produced an exemplification of the execution, on which was an endorsement directing a levy of the sum mentioned in the declaration, with interest since May, 1826, besides fees: objection was made to the exemplification being offered in evidence, on the ground of the variance in the execution, directing the levy of interest* and such direction not being stated in the declaration, the case [287] was taken to the Supreme Court, and in the opinion pronounced by the court, this point was thus disposed of—“ as to the bill of exceptions, the variance between the execution produced in evidence, and that stated in the declaration was not material. The endorsement so far as it is set forth is accurate, and the variance is merely in the omission to aver that the sheriff was directed to levy interest as well as the damages and costs. It could raise no doubt as to the identity of the writ.” It is unusual in bonds of this description to set forth the judgment. It is merely said that at such a term, and in such a court, the obligee recovered judgment against the first named obligor, and that the latter is about to appeal therefrom. It was the fault of the obligors themselves that the judgment was not correctly recited in this bond, and they ought not to be benefitted by the error or omission which is attributable to themselves, and to which the plaintiffs had no opportunity of objecting. If the judgment had been recited in this bond in the usual way, it would not have been identified more satisfactorily than it now is. If in the case last cited, the omission of interest was deemed an immaterial variance, surely the same omission ought not to be a bar to this action. JUDGMENT REVERSED ON BOTH EXCEPTIONS AND PROCEDENDO AWARDED.