Graham & Scott v. Graham & Lane

Judge Roane pronounced the opinion of the court, consisting of judges Fleming, Roane, Cabell and Coalteb, that the said judgment is, erroneous as to the appellant Catesby Graham, it being rendered against him without any writ having been issued against, or served upon him, and without his having pleaded to the declaration ; and that the judgment as to the.appellant Scott, upon his demurrer to the replication, is also erroneous, in this, that it does not appear that that replication relates to the bond in the declaration mentioned, as it purports to relate to a suit by 'Robert Graham only; whereas the bond stated in the declaration is shewn to have been 207 given to Robert Graham and George Lane; and that the said replication is therefore a departure from the said deduration. ' The court is also of opinion that the said replication is farther defective in this, that the condition of the bond declared on, being neither set out in the declaration, nor made a part thereof by oyer, the replication ought therefore to have distinctly averred what the condition thereof was. Judgment reversed, and cause remanded, in order that final judgment may be entered for the appellant upon the demurrer; unless the appellees should move the court to amend their replication, which in that case is to be allowed, on their paying costs.