Birckhead v. Saunders's Ex'r.

Stephen, J. delivered the opinion of the Court. On the trial of this cause in the court below, the plaintiff, to sustain the issue on his part, offered in evidence to the jury, the records and docket entries of Harford county court of August terns. 1821, from which it appeared that a judgment was rendered at that term in said court, in favour of Charlton Waltham, and Hester his wife, administratrix of James II. Taylor, for the use of Elizabeth Saunders, against Elizabeth Birckhead, John Watters and James Reardon, administrators of Thomas Jl. Birckhead, for $1000 penalty, and costs; to be released on the-payment of $500, with interest from the 16th of November 1813, until paid, and costs. That from this judgment an appeal was prayed to this court, by the defendant, and the appeal bond fded on which this suit was brought. The judgment recited in that bond was slated to have been rendered against" [86] Elizabeth Birckhead, and the other defendants, in their individual and not in their representative capacities, and it was for the payment of the recited judgment only that the bond was given, if the court of appeals should so adjudge. To the declaration filed upon that bond, after oyer prayed and granted, the defendant pleaded performance; the plaintiff in- his replication assigns as a breach of the condition of the bond, the affirmance and nonpayment of a judgment obtained against the appellants in their representative character, with an averment that it was the same judgment as that recited in the condition of the bond; the defendant rejoined that it was not the same judgment, and upon the issue so formed the parties went to trial. The defendant objected to the admissibility of the evidence so-as aforesaid offered to the jury, but the court overruled the objection, and permitted the evidence to be given to the jury. In granting such permission it is the opinion of this court, that the court below erred, even if the issue which the jury were called to try had been legally and properly submitted to their determination; which, for reasons that will hereafter be assigned, wc think it was not. The judgment offered in evidence was inadmissible, because it was irrelevant, and did not lend to support the issue joined between the parties, and ought consequently to. have been rejected. The plaintiff in his declaration, made a profert of the bond; this by legal intendment put the bond itself in the possession of the court, and the defendant prayed and obtained from the court oyer of the bond, which made it a part of the plaintiff’s declaration, and also matter of record. In 5 Bac. Ab. tit. Pleas and Pleadings, 438, the following principles are laid down: “When a deed is pleaded with a profert hie in curia, the very deed itself is by intendment of law immediately in the possession of the court; and, therefore, when oyer is craved, it is of the court and not of the party; and after oyer, is craved, the deed becomes parcel of the record, and the court must judge upon the whole;” and that “if the defendant prays oyer of the bond and condition, and it is entered in hmc verba, the condition becomes parcel of the plaintiff’s declaration.” It then appeared judicially to the court that the judgment recited in the bond, upon which the plaintiff had declared, was not the87 same judgment as lhat relied upon in the plaintiff’s replication, and of course it was inadmissible to prove the issue joined between the parties. But the defendant, instead of denying the plaintiff’s averment as to the identity of the judgment, and thereby creating an issue in fact for the jury to try, ought to have pleaded mil tiel record, which would have brought the question before the court who were the proper tribunal to have decided it; or he might have demurred to the replication, as the breach therein set forth was not within the condition of the bond, upon which the plaintiff had declared. Snell vs Snell, 10 Serg. & Lowb. 457, where the law is stated to be that, “If a plaintiff states the legal effect of a deed, the defendant has a right to see it on oyer, and if the meaning varies from that attributed to it in the declaration, in order to take advantage of that variance, he should plead non est factum, without setting out the deed. If It does not support the breach, he should set it out and demur.” JUDGMENT REVERSED.