
    
      Anderson vs. Barry, &c.
    
    debt.
    Error to the Franklin Circuit; Henry Davidge, Judge.
    
      Pleading. Demurrer. Profert. Oyer. Autre action, pendent. Abatement.
    
    October 12.
    Pleas not Pri> under discretion oí oourt-
   Judge Robertson

delivered the opinion of the court.

This is an action of debt, by John Anderson vs. William T. Barry, and Thomas Triplett, on a Supersedeas bond, executed in 1623, in the penalty of $>2,500, for superseding a judgment in the Bath circuit court, by Anderson vs. John T. Mason, Richard M. Johnson, and Cave Johnson, for $1110, damages, and the costs of the suit.

The defendants filed five pleas, in substance, as follows:.

1st. That the judgment Was affirmed in this court, on a record, different from that, on which the superse-deas was granted.

2d. The sarhe matter, but stated more compre^ liensivelv.

3d. That executions had issued on the original judgment, and on that of this court, for damages, after the affirmance, and before the impetration of this writ, which had been replevied.

4th. That the debt for which the original judgment was rendered, had been paid before the institution of the suit, by Anderson vs. Mason, &c. and that the -costs and damages in this court, had been paid before the date of this writ.

5th. That there was no such judgment of thiscouyt, affirming the original judgment, as was alleged in the declaration.

Isssue was taken, to the court, on the last plea.

Demurrers were sustained by the court, to the 1st 2d and 4th pleas.

To the 3d plea, there was a replication, in substance, that the replevin bond, taken on the execution on the original judgment, was signed or acknowledged by Mason, or R. M. Johnson, and that the execution, for the costs and damages was levied on property of Cave Johnson, which sold only for $20, in bank paper.

A demurrer to this replication, was not disposed of, so far as the record shows.

Leave being asked, to file additional pleas, and opposed, was granted; and thereupon, pleas, No. 6,7, 8, 9 and 10, were filed,in substance as follows:

6th. That an injunction had been obtained, by order of the judge of the Bath circuit court, restraining,the said judgmentsat law,” “and from all proceedings, to collect the same.” That an injunction bond, had been executed. The subpeena, with injunction issued, and served on Anderson.

7th. That the judgment of the circuit court had been amended, on Anderson’s motion, after the supersedeas, bond was executed, and before the judment of affirmance by this court.

8th. That after the l}ond was executed, and the record filed, Ihe latter having bepn taken forcibly, by FrancisP. Blair, into his custody, Anderson filed ano* iher, which, in the mean time, had been materially amended and enlarged, and on which the opinion of this court was pronounced.

9th. Substantially the 8th,difFeringonly by the addi» tional allegation, that Anderson filed the record fraudulently.

10th. That no supersedeas ever issued, to restrain Anderson from the enforcement of his judgment by execution.

Demurrers were sustained to the 7th, 8th, 9th, and 10th pleas; but overruled to the 6th. Whereupon, Anderson refusing to reply, judgment was rendered in favour of Barry and Triplett, in bar of the 'action. To reverse which, this writ of error, with a superse-deas, isprosecuted.

Two errors are assigned.

1 st. That the court erred in permitting pleas, 6, 7, 8,9 and 10, to be filed.

2d. That it erred in overruling the demurrer to the 6th plea.

As to the 1st error, it is our opinion, that it is insufficient for the reversal of the judgment. The filing of the additional pleas, was not a matter of right, because, although, by statute, a defendant is allowed to file as many pleas, both of law and fact, as he may, think proper to offer, provided they be good; yet he cannot claim this asa matter of right, unless he offer to file them all at the same time. He cannot have a legal right, to embarrass the plaintiff, and procrastinate a trial, by vexaciously filing pleas, uad libitum.” The court has a superintending control, over the pleadings, in exercising which, pleas will be permitted or rejected, by its sound legal discretion, as they may seem necessary, or otherwise, under the circumstances of the casé, to the ends of justice, and consistent with the rights and duties of the parties; and in >the exercise of this discretion, the circuit court will never be controlled by this, unless it shall have obviously abused or perverted its power, to the unreasonable advantage of one party, and to the prejudice of the other.

Demurrer (o plea or replication, opens all precedent pleadings.

The court might in this case, have refused leave to file the additional pleas, and the defendants below, would have had no cause of complaint. It would have been discreet and proper, to have denied leave, if the pleas be insufficient; to bar the action. Walton vs. Kindred, V. Mon. 391-2. But this court will not reverse the judgment, for permitting the pleas to be filed, although they may be insufficient, because, the regular and appropriate mode of taking advantage of a defective plea, is by demurrer. Whether the pleas be good or bad, in substance, is not decisive of the question, whether the court shall grant or withhold leave to file them. A prudent judge would never permit an insufficient plea, to be filed, when he has the discretion to reject it. But as the court, when the defendant has a legal right to plead., will not refuse to permit him, to file a plea, affirmative in kind, and properly presented, merely, because, on demurrer, it would beheld insufficient, but should, as a general rule of practice, postpone a decision on its merits, until it should be exapted by demurrer.

Therefore, when the court having the discretion to admit, or refuse a plea, shall suffer one to be filed, which would be bad on demurrer, this court will not reverse, solely on the ground of the insufficiency of the plea, but will leave the adversary party, lo his demurrer.

On the 2d error, many considerations present themselvps. Preliminary, to a decision on the sufficiency of the 6th plea, it will be proper to ascertain, whether the plaintiff in error, has in any antecedent stage of the pleadings, committed any blunder, of W'hich the defendants could take advantage, on his demurrer, to their 6th plea.

It is a general rule, that a demurrer to a plea, or replication, opens all the prectedent pleadings, and presents their merits, for décision by the court; and that if the demurrant has been guilty of any slip, which could have been taken advantage of on demurrer, his demurrer will be overruled, however well founded, it may otherwise be. Beauchamp vs. Mudd, Hardin, 164; Slack vs. Price, I. Bibb, 272; Jones vs. Gruget, Ib. 447; Mitchell vs. Gregory, Ib. 449; Bodine vs. Wade, Ib. 459; Guthrie vs. Wickliffe, III. Bibb, 81; Joice vs. Handley, Ib, 225; Elliott vs. Fowler, I. Littell’s Reports, 202; I. Sanders, 33; Tidd’sPra. 829. The United States vs. Arthur and Patterson, V. Cranch, 257.

The objection to the declaration in this case, is, that it does not make profert of the supersedeas bond; but only recites the substance of it, and then alleges, as an excuse for not proffe.ring it, that it was on file ip this office.

Wbether,if this be a substantial defect in the declaration, it is not cured by the pleas, and the issue made up, would, if it were material, to decide it, be a question, somewhat curious and vexacious. There may be many defects in a declaration, which will be cured by a plea. There are others, which cannpt be, It would now be unprofitable, to attempt an analysis, or even an enumeration of the cases of the one class or the other. We could not admit, that a demurrer to a replication, necessarily exposes the whole declaration, under ail circumstances, to the scrutiny of the court.

There might be defects in a declaration, so effectually cured by the plea, as to exempt them from the reaction of a demurrer, to a replication to the plea. This seems to be a decision of reason, and we are inclined to think, that it is fortified by some of the cases (if not all) which have been cited to shew, that a demurrer opens the whole record.

In Elliott vs. Fowler,I. Littell, 202, the court says, “For it is a settled rule, that if it appear from any cause in the record, that the plaintiff in error, ought not to have judgment, or that, if he had obtained one, it must have been reversed, on the writ of his adversary, he cannot maintain a writ of error.”

In Joice vs. Handley, III. Bibb, 226; the court says, “a writ of error, like a demurrer, to any part of the pleadings, brings the whole record before the court; and if, from the whole case, the plaintiff does not shew himself, entitled to recover, he ought not to have a judgment in his favor.”

In Peebles vs. Stephens, I. Bibb, 501; the court says, “the demurrer brings before the court, the . whole state of the pleadings, at least.so far as is necessary ¿for the attainment of the veryfight of the case.'’'’

“A demurrer would authorize the court, to give judgment, according to the right of the case, and not according to the replication only.” Jones vs. Gruget, I. Bibb, 449.

“All the pleadings being brought before the court by general demurrer, the court might have given judgment, according to the right of tbe case,, upon the pleadings.” Mitchell vs. Gregory, I. Bibb, 452.

It would seem, from the rule thus laid down in these leading cases, that a demurrer toa replication, will not overreach a defect in the declaration, if the omission and the plea, be of such a character, that the latter supplies or cures the former, or if the defect in the plea, be not a consequence of that in the declaration.

We would be inclined to the opinion, that if the omission to make profert of the bond in this case, be a substantial defect in the declaration, the issue and pleas, are of such a character, as to supply the omission, and cure the defect.

However, we shall not decide this point, becausé we do not consider its decision now necessary, believing as we do, that the declaration is good, for the following reasons:

1st. The bond being, bylaw, filed in this court, it was not necessary to make profert of it. A party is not bound to make profert of a deed, to the custody of which he has not an exclusive right. If the deed be filed in a suit in another court, it is not necessary to make profert of it, because it is in the custody of the law. V. Coke, 74 b, 76 a; Moore’s executors vs. Paul, II. Bibb, 330.

The assignee of a bond by commissioners of a bankrupt, is not required to make profert of the bond, because it was transferred to him by the act of the law, and he had no means to obtain the original. Ba. Ab. tit. pleading, I. 12.

A guardian’s bond, an appeal bond, a supersedeas bond and others of the same kind, are approved by 'the court, or the clerk of the court* and deposited the archives of the coiirt, or of the clerk’s office. Profert of such bonds, we cannot consider necessary in a declaration, by the person for whose benefit they are executed. They seem to us to be in the custody of the law; that they are intended to be preserved, in order, that they may be accessible by either party to them, and as much so by the one as the other. The chief object of profert, is to enable the obligor to see the bond and take a ropy of it, if he choose to do so. In this case, the defendants who executed the super-sedeas bond, knew that it Was deposited with the clerk, who approved them as sureties, and received their acknowledgement. They had access to the bond in the clerk’s office. The plaintiff had no agency in accepting the security, nor was the bond ever delivered to him.

2d. If this bond be like all other specialties, which are the basis of actions, and there be no more reason for dispensing with the profert of the one kind than of the other, the omission of profert is cause of special demurrer only, and therefore, in Kentucky, is immaterial.

We know that, in some of the elementary books on pleading, it is stated that want of profert of a specialty, which is the foundation of the action, is a substantial defect, of which advantage may be taken, on general demurrer, unless the character or condition of ’the writing be such as to furnish, according to some of the authorities, supra, a sufficient excuse for the omission. We know, too, that such is the doctrine reported in Leyfield’s case, X. Coke, 94-5; and that this court, in the case of Metcalfe vs. Standeford, I. Bibb, 521, has decided on the authority of this case in Coke, that want of profert is cause of general demurrer.

But in the most approved treatise on pleading, it is laid down as unquestioned law, that Hhe omission of profert, when necessary, can only be taken advantage of by special demurrer.” I. Chitty, 350. If this discrepancy, in these respectable authorities, cannot be re-eonciled or satisfactorily accounted for, we shall feel bound to regard the opinion, in II. Bibb, as containing , the true doctrine.

The authority of Coke is unquestionable; and if it needed any support, a host of subsidiary cases could be cited to show that, when Leyfield’s Case was tried, the law of England was without doubt, as reported by Coke, in that case. Such Ivas the undeniable doctrine of the English courts, before and until sometime after the settlement of the American colonies. And consequently, the case of Metcalfe vs. Standeford, must contain the true law of this state, unless some statutory provision of this country has introduced among us, the law as stated in Chitty. That this has been done, we will now endeavor tó show.

By a statute the 16th. 17th. Charles the II. Cha. 8, it was enacted, “that after verdict, judgment shall not be staid or reversed for default, of alleging the bringing into court any bond, bill, or other deéd mentioned in the pleadings, or of any letters testamentary or of administration.” Ever since this statute, pro-fert of a specialty, in the declaration, has been held to be only matter of form; Salk. 497; VI. Mod. 135; By another statute of England, 4th. and 5th. Anne, Cha. 16, it was enacted, among other things, that, “no advantage or exceptions shall be taken for want of a profert in Cur. &c.; but the court shall give judgment according to the very right of the cause, without regarding any such omission and defect, except the same be specially and particularly set doran and shown, for cause of demurrer*”

The statute of Anne must be more comprehensive than that of Charles, otherwise it was supererrogation. The statute of Charles ivas one of Jeofails, the letter of which cured a want of profert, after verdict. But this statute did not, in terms, declare that such omission was only a matter of form. That it was so, was the interpretation of the spirit of the statute, by the courts. This construction, was no doubt questioned, and for good reason; and, therefore, the statute of Anne, recapitulating the substance of that of Charles, expressly legalizes the judicial construction, by declaring that advantage shall not be taken of a lack of profert; except by special demurrer.

We should say, contrary to the exposition of it, by the English judges, that the statute of Charles, like our statute of jeofails, of 1796, cured defects in pleading, only by a verdict or judgment on nihil dicit, &c. is specified in each, and that it had not the effect of converting, before verdict or such judgment substance into form; or of preventing a general demurrer to a declaration for want of profert. By out statute of jeofails, many substantial defects in a declaration, which may be taken advantage of by general demuri'er, are remedied after verdict. But still for such errors, there may be a general demurrer. If a patty demur, his demurrer must be sustained. But if he fail to demur, and a verdict be rendered against him, he may not object to the insufficiency of the declaration. It may then be, and certainly will be, in all the cases provided for by the statute, too late. And this, we would have supposed, should have been the construction of the statute of Charles. But the judges of England thought and decided otherwise. And to establish and enforce their exposition, must have been the only motive for passing the act of Anne. Since this latter statute, more especially, there has been no diversity of opinion on the effect of omitting profert; and hence the doctrine, so explicitly and confidently affirmed by Chitty¿ When he wrote, it was not doubted by any one, that, in England, profert was only matter of form, of which advantage Could be sought only by special demurrer.

Coke, when he reported the case of Leyfield, also stated the law of England correctly. At that time the statutes of Charles and of Anne not having been enacted, the law certainly was, not only, that profert was essential, but that its omission, was ground of general demurrer, and not cured by verdict. If this were not then so, there would have been no necessity for these statutory amendments of the law.

This court, therefore, in the case in Bibb, decided the law of this state correctly, unless the statutes of Charles and Anne have been adopted as the law here* as well as of England. If they have been so adopted, all must concede, that, here as well as there, the law is as stated by Chitty.

By the constitulion of Kentucky, Article 6th, Section 8, it is declared,.that “all laws which, on'the first day of June, 1792, were in force, in the state of Virginia, and which are of a general nature, and not peculiar to.that state, and not repugnant to this constitution, nor to the laws which have been enacted by the legislature of this commonwealth, shall be enforced within the same, until they shall be altered or repealed by the general assembly.”

By the act of Virginia, of 1753, it is declared? “that for the prevention of delay, by arresting judgments and vexatious appeals, the several acts of parliament, commonly called the statutes of Jeofails, now in force and of use in England, shall be, and are hereby declared to be, or as much thereof, as relates to mispleading, jeofail and amendment, in full force in this dominion, also.” At this lime there were twelve statutes of jeojctils in force in England. That of 14. E. 3 c. 6, is the first, and that of 4. 5. Anne, the last in the series. They were all called statutes of amendment and Jeofails.

We have been unable to ascertain any reason for supposing that the statutes of Charles and Anne were not in force in England in 1753. We cannot doubt that they were then in force. They were in force when Chitty wrote, which was long since ’53, and consequently they had not been repealed when the Virginia act passed, or they would not be referred to in Salkeid, in Bacon and Chitty, as the authority for the modern doctrine of the immateriality'of proferí.

It is our opinion, that the statutes of Charles and of Anne, were both virtually re-enaeted and adopted in Virginia, as the law of that state, by the act of 1753. They are both statutes of jeofails. The statute of Anne does not differ, materially, from that of Charles, except that it supplies, by express words, what, that was only interpreted, by a very latitudinary construction, to mean, to-wit: that want of profert should be cause of only special demurrer. This last provision, peculiar to the act of Anne, might be supposed not to be an integral part of a statute of jeofails, and, therefore, not embraced by the act of 1753. But it is a part of the statute of Anne, and is not only a constituent member of the section, but of the sentence which has been quoted, and which no one will hesitate to admit, is a statutory provision of amendment and jeofail. The whole section is adopted by the Virginia act, because the whole is a statute of jeofail, and the whole being composed of all its parts, ehch part, must be as much included, as any other. Besides, the expressions under consideration, if they could not properly be considered as embraced by the denomination, Hhe statutes of jeofails,” are certainly intended as a provision for “amendment;” and the act of 1753, adopts so much of the statutes of jeofails, (in other words, “amendment and jeofails,”) “as relates to mispleading, jeofail and amendment.” Being a part of the statute of jeofails of Anne, and inserted expressly for “amendment” of the law in relation to “mispleading,” we cannot resist the conclusion, that it is as much embraced by the Virginia act, as any other parts of the same sentence, or section, or act. And that it is, has been decided by this court, in the case of Walton vs. Kindred’s administrator, V. Monroe, 388; in which it is declared that,incon-sequence of the statute of Anne, and that of Virginia of 1753, an omission to make profert of letters testamentary, is now, in Kentucky, as well as in England, cause only of special demurrer.

Before the statute of Anne, it was as necessary in England to make profert of letters testamentary, as of a deed or other specialty. The statutes of Charles and Anne, both mention deeds and letters testamentary, and place them on the same footing. If, therefore, the one is transformed, from substance into shadow, by the statute of Anne, so must the other be, undeniably and inevitably.

Moreover, the construction and the practical effect of these statutes, being well known and established in England, when the het of Virginia, of 1753 was passed, the presumption is strong, and is legal, that they were adopted with this construction of them, and to have the same effect in Virginia as in England,

?ro/eri°fn°dp duration, ig6" cause only of munwmid special de-, ’ murrers have cd*51?)Ílb?lisí)" of IsTl.*ea0t

These statutes have never been repealed by the legislature of this state. Our statute of jeofails of 1796, does not contain the expressions in that gf Anne, which, according to our construction of the latter statute, are thóse alone which prevent a general demurrer for want of proferí. But there is no incongruity between this part of the statute of Anne and the act of 1796; and therefore, the latter does not. repeal the former, by construction, according to any principles of right, reason, or any established rules of law.

We are, therefore, now brought to the conclusion, in ^yis state, an omission to make proferí in a declaration of a deed, which is the foundation of the action, is no cause for a general demurrer. It isa ^^ect onty ln f°rm; and as the act of 1811 cures all defects in mere form, and abolishes special demurrers, therefore now, want of profertin a declaration, cann°f he fatal at any stage of the pleadings, or under any circumstances; and consequently, while in England, it is still an error which may be yet taken advantage of by special demurrer; in Kentucky it is totally immaterial, since the act of 1811, abolishing special demurrers.

And we do not know any good reason why this shoqld not be the case, since the abolition of formaiities in pleading. Proferí of a deed in a declaration is, in its nature, and should (we think) always have been considered more formal than substantial. We know that it has generally been so in practice. Nor do we perceive any mischief or inconvenience which can result from establishing this opinion, as the settled law of the land, for practical pleading.

When profert was deemed substantial, making it, was in practice, generally an. idle ceremony, and craving óyer an useless form of words. The ilmon-strans de fait,” is only a showing, or offering to show, the deed. But the usual practice in modern pleading has been, to insert the profertas a matter of form, and file the deed with the declaration, to be read or copied by the defendant. This effects all the purposes of the antiquated ceremonial of praying in epurt, that the deed be read, and then having it read, before the plea was filed. The only object of granting oyer, is that the defendant may see or hear the deed, before he shall be compelled to plead to the action. This is a privilege which has always been accorded to him, and which has not been, and ought not to be taken away. When profert was material, if the plaintiff omitted it, thd defendant might waive his demurrer, and demand that the deed be shown or read, before he was required to respond to the declaration. In England, when a plaintiff showed, by his count, that he declared on a writing, not under seal, (and of which it was never necessary there, to make profert, because it was a parol contract,) the defendant had a right to demand an inspection of the writing, before he filed his plea. But if, as was generally me case, the declaration did not disclose the fact that the contract was in writing, (which it was not necessary to do, unless it was a specialty,) the defendant could not, as a matter of right, ask for the exhibition of the written evidence. The statute of George If. however, gave the defendant this right too. But this statute never having been in force in this state, a defendant here had, before 1812, the right only of demanding a sight or a copy of the writing sued-on, when it was either a specialty, or was disclosed as the cause of action by the declaration. See I. Tidd’s. Pra. 532.

In a suit on a bond, with a collateral condition, it is not necessary to mention the condition in the declaration. Nevertheless, the defendant may crave oyer of the condition, and cannot be compelled to plead until it shall have' been granted to him. The bond and the condition are distinct, and, therefore, there-may be oyer of one, without the other. I. Saunders, 9, n. 1; Ib. 290. Praying oyer of the bond does not entitle the party to oyer of the condition, and “rice versad VI. Modern, 237; I. Chitty, 416, 19.

When the declaration does not disclose the covenants in the condition of the bond declared on, the defendant is entitled to'a summons against the plaintiff, to show the covenants, and the court will continue the cause until they are shown. I. Tidd's Pra. 534-5.

Def’t. has a neht to oyer, o'fanywriling sued on.

S uit on bond, without setting out condition, def’t. cannot plead performance, without craving oyer of condition.

jjn this state, all executory contracts in writing, are contracts under seal, or of equal dignity and effect to writings. And, therefore, in any suit, on any such contract, whether sealed or not, the declaration must show (he true cause of action, and disclose the writing and the substance of.it, or as much of it as may be necessary to the action of the plaintiff. Consequently, according to the authorities cited, in every such suit on a waiting, the defendant has a right to oyer, or to an inspection of the writing, whether pro-fert be made of if or not, and cannot be forced into trial until, it shall have been shown, unless some legal excuse for not showing it can be oííéred, as that it is impounded.

It cannot be material, therefore, for the plaintiff to offer, to shew the writing, set out in his declaration, when, whether he makes the tender or not, the defendant has a right to see it. And surely, the defendant cannot be prejudiced by any omission of profert, by the plaintiff. There may be some comity in voluntarily tendering to the defendant, his bond forexam-ination; but if this courtesy be withheld, still the defendant may demand, and has as much right to see it, as if it bad been ever so freely, or politely offered.

If a suit be brought on a bond, with a condition, and no profert be made of the condition, the defendant cannot plead performance, without craving oyer of the condition. Strange, 227. The U. S. vs. Arthur, V. Cranch, 261.

It is thus shewn, that oyer may be demanded of that, of which profert has hot been made; and that the only difference betwixt making, or omitting profert in a declaration, is that when it is made, the defendant cannot plead to the deed, without oyer of it; and when omitted, he cannot be compelled to plead, until the deed be shewn to him.

The declaration in this case, is therefore, good.

It is not proper here, to decide, whether profert be ^till as essential in a plea, as it was anciently

But it may be observed, that the main reasons, which apply to declarations, do not, necessarily, extend to pleas. Since the statute of Anne, it was de-. cided by Ch. J. Holt, in Armit. vs. Bream, II. Salk. 498, that when a man covenants to make a deed, and 'is sued tor not doing it, be must,notwithstanding statute, shew the deed in his plea of tender, or performance; otherwise, a general demurrer may be sustained io the plea.

The reason of this is, that without seeing th'e deed, the court cannot decide, whether the tender or1 performance was good.

The pleas in this case will next be considered.

None of the pleas, to which demurrers were sustained, are good. The 1st. 2d. 7th. 8th. and 9th., are in. substance, and legal effect, the same. They rely on the covenant, repeated in various forms, that the record, on which this court adjudicated, when it affirmed the judgment of the circuit court, was not exactly the same on which the supersedeas was ordered. To sustain such pleas, as presenting matter, in. bar of this action, would invert the order of things, and virtually supersede the appellate court. The circuit courts cannot revise, nor correct the opinions of this court; nor can they resist or refuse to carry into effect, its mandates. The correctness and full effect of its opinions, cannot be questioned or qualified, by an inferrior court, in any mode. If this court commit errors, they can be corrected only here. If its opinion, in a particular case, has been produced by the fraud of the successful party, the circuit court cannot inquire into the fraud, and give relief against it, by withholding its aid, to carry the opinion into full effect, as long as it shall remain unchanged. We will not say that the chancellor might not act “inper* sonam,” and coerce the fraudulent party in an aggravated aud extreme case. But the judgment of this court, cannot be averted or resisted by either a common law judge, or a chancellor.

There is no allegation of fraud, except in the ninth plea; and that only charges, that the record was filed by Anderson fraudently. It does not even intimate, that there was any fraud in procuring the opinion, or that the record was not a true and perfect transcript.

The defendants were in court. They brought the case into court, It was their duty to prosecute their writ of error, and see that a true record was filed 5 and it is too late, after the expiration of the term, at which the judgment was affirmed, to object that the record was not correct. Some of the pleas* however, shew that the record was the same, as that* on which the writ of error was sued out, with the addition of some correction, by the circuit court, after the supersedeas was granted. This correction, the court had a right to make. See Shad’s executors vs Haver, I. Monroe, 19; and Short, vs. Coffin’s executors, V. Burrow, 2730; III. Johnson’s Repts., 526. And it has been frequently decreed, that in such cases, the plaintiffs in error, are responsible, as in all other cases, on affirmance.

The 4th. plea, (that the debt had been paid before the orriginal suit was brought,) could certainly, not have been filed, with any hope that it could be sustained. It is too late to plead payment, after a judgment, and an affirmance of it by this court. It could not be pleaded to a suit on the judgement. The payment of the damages, would not bar the action for the amount of the original judgment.

The 10th. plea, (that no supersedeas ever issued) is as ineffectual as either of the others.

The defendants are estopped by their bond. It acknowledges, that a supersedeas had been obtained; The plea does not deny, and therefore, admits that the writ of error was prosecuted, and that the judgment was affirmed. Anderson, therefore, was summoned; and if ( which is not probable) the summons did not notify him, that his judgment had been superseded, the record, which he was bound to take notice of, did. He would have been guility of a contempt, if he had proceeded to enforce his judgment. The plea, is therefore, untrue on its face; and consequently, the demurrer to it was rightly sustained. Lasly vs. Booth, V. Monroe, 380.

It is not alleged that the supersedeas bond, was procured by fraud, or that there was any fraud in obtaining the order for a supersedeas. This could not be, unless the fraud was committed by plaintiffs in error.

’■Autre 'ac-ÍV”1 Pen^enfy able in a batement, except in 1vi íarítr actions?^---'

It only remains to consider the 6th. plea, for overruling the demurrer to which, this, writ of error is prosecutued.

Waiving a decision of the question, whether the pendency of an injunction, is a good plea in any case, to an action at law. (See I. Maddock, 220-2-4. I.Ib. 130; III. Bab. 656; I. Bibb. 473.) It is sufficient in this case, that the plea is inappropriate, and radically defective in substance.

1st. It does not allege that the inj unction is pending.

2d. Or that it had been perpetuated.

3d. Or that the defendants are parties to the suit in chancery.

4th. It shews that the defendants weré not parties.

5th. It only avers, that an injunction had been granted, and does not exclude the inference, that it had also been dissolved. For aught that the plea contains, the injunction was dissolved.

But, unless the injunction had been perpetuated, its pendency, if pleadable at all, could have befen pleaded only in abatement.

uAutre action pendent,” is a good plea, in bar to a popúlar action; or a qui tarn, action, for a penalty; because, by bringing the first suit, the plaintiff'in it, is entitled, exclusively to the penalty; and, consequently, no other person can ever have any right. But ifi ordinary cases, such matter should be pleaded in abatement. I. Chitty, 443; Tidd’s Pra. 583; Embry vs. Hanna, V. Johnson’s Reps. 101; Scott, et al. vs. Coleman, V. Litt. Reps. 349; IV. Ba. Ab. F. 11.

6th. The plea professes to answer the whole declaration, and avers an injunction for only a part of the amount for which the bond was given. This, itself, would be fatal on demurrer. Farquar vs. Collins, III. Marshall, 35; Ralston vs. Bullit, III. Bibb, 261.

Wherefore, it is our opinion that the 6th. plea is insufficient; and, therefore, that -the court erred in overruling the demurrer tó it.

It is objected, that there was no judgment by the court, on the issue of “n»i tiel record.” This is not strange. No issue was tried, and it was not necessary to decide on the plea to the court, until the other , issues, which were in “fieri” were ready for trial.

Petition for a re-hearing.

Dana, and Hanson, for plaintiff; Mills and Triplett, for defendants.

It is also objected, that the demurrer to the repli-, cation, to the 5th plea, was not disposed of. This* too, is immaterial. The replication is as good as the plea; and it is good, whether the plea be good or bad. The defendants cannot be prejudiced by the omission of the court, to give judgment on the demurrer to this replication. If the judgment had been for the defendants, and the plaintiff had failed to reply over, a judgment would have been rendered against him, for his refusal.

The defendants did obtain such a judgment, because the plaintiff refused to reply to the 6th. plea, and, an opinion in their favor, on the demurrer to the replication, would not have placed them in a better condition.

If the court had overruled the demurrer, still the defendants would have obtained their judgment, on the other ground. As the case went off on one demurrer, it was not material whether all the others were disposed of or not.

Judgment reversed, and the cause remanded, with instructions to sustain the demurrer to the 6th. plea,

The Counsel for Appellees, presented the following peti~ tionfor re hearing.

The counsel for Triplett, conceive it to be a duty* which they owe to their client, and the uniform administration of justice, respectfully, to solicit of the court, a reconsideration of the opinion delivered in this case.

At all times, a petition like this, is burdensome to counsel,and more so, to the court, and to impose that burden, is a matter of regret; but in ho case, does it become more disagreeable, than when it falls to the lot of counsel, to advocate former decisions, of the same court, and to contend that the ancient landmarks, are removed by a decision, and that the uni-fortuity of the law, is substituted by a new course of proceedings, evidently calculated, as ihey conceive, to produce uncertainty, which always affects the try, if caused by a court of the last resort.

The first, and most prominent point, in the opinion, under review.,is that part, which destroys profert,oyer, and all the doctrines attending them, and sweeps away the conveniences and consequences thereof. The, court seems to have come to this conclusion by the following mode of reasoning:

1st. Profert was matter of substance, anciesltly in England, but was afterwards made mere form by statute, in that country, and available only in special demurrer.

2d. These statutes, though subsequent to the fourth of James the first, were afterwards adopted in Virginia, from which slate, they were adopted by the constitution of this state.

3d. A statute of our own, has since abolished special demurrers.

Therefore, want of profert, cannot be taken advan-. tage of, at all, and both profert and oyer, are now non entities in our law. Hence, the decision of Met-calfe vs. Standeford I. Bibb, 521, is overruled as not law. If this was the only case in our courts which was blotted out,it might not be so much tobe regretted, although it has ruled the courts of the country, since it was given. But there is a series of cases not noticed by the court, or supposed to exist, which falls with it." In short, the law has been long settled, and often recognized, that profert was substance, and the want thereof, could be reached by general demurrer and in deed, in arrest of judgment, or even a writ of error, unless a verdict, or writ of inquiry, cured the defect or an appearance and judgment, by nil dicit or non sum informatus.

In the case of Scott vs. Curd, in 1806, Har. 64, this court reversed a judgment rendered for a plaintiff, without jury, because no profert was made of the writing, on which the action was founded.

In the case of Sooke vs. Nowles, I. Bibb, 283, the want of profert was held a substantial defect, in plea.

In Marshall and Bohannan vs. Reed, the want of profert, is held to be cured, after verdict, and in a note of the reporter, and authorities there ci.ted, the true distinction,, is laid down as established, that is, that want of profert can be taken advantage of, at any state of the proceedings, unless cured by verdict, or writ of inquiry.

In Hie case of Birney vs. Ham, II Littell’s Reports, 2G7; when treating of the exception taken on general demurrer, to the want of profert, it is decided, that profert, in that case, was unnecessary, but it is said, that “if a profert had been necessary, and he (the defendant below had, without oyer, demurred, the oh-jcction might have been available.”

Against these authorities, it is said arguendo, in the pase of Walton vs Kindred’s administratrix, V. Mon. 388, that profert, of letters of administration, is form. There profert was made, and^ a general demurrer filed, and the question was, whether the pro-fert was sufficient, of course, all said,.dispensing with profert, is mere dictum.

After so many cases, decided on the same point, (and we are satisfied there are many more, which have gone offiby entry, on the record, without written opinion,) we did hope, that the doctrine would have been left asleep, and not be waked up, and again set afloat. For upwards of twenty years, it has been taken as law, in this country, that want of profert qf a writing, declared on, if taken advantage of by demurrer, would be a fatal defect. Now we are told, that it is not fatal at any stage, in short, that profert is abolished, With profert also, and oyer, and spreading the writing on record! For the doctrine is well settled, that if profert is unnecessary, oyer cannot be given, if demanded. If oyer cannot be given, then the writing cannot be made apart of the record, at all, unless by bill of exceptions or demurrer, to evidence; and where there is no bill of exceptions, oridemurrer to evidence, (here is no way known of making a writing, declared on .part of the record. It would be an endless job, to recite the cases, where it has been held by this court, that a writing declared on, is no part of the record, and cannot be noticed by the court, and we are wholly unable, to find any other remedy, or mode given to a defendant below, to get the bond or writing sued on, placed on the record, or how to get it before this court, for without oyer, this court will not notice it, as held by numerous decisions.

The court’seems to suppose, that this difficulty is obviated by the common practice, of filing the paper. But this can be thus answered; filing the paper, makes it no part of the record. Unlessitis such, the court cannot notice it, and no variance between the writing declared on, and that filed, can be taken advantage of, and if every member of the bar, does not choose to conform to the common practice, what law will compel him to conform to it? The court seems to think, that the courts of original jurisdiction, can compel its production, before the other side can be compelled to plead. How can he be compelled? The only mode known to these memorialists, is, by craving oyer, making the demand of record, and according to the ancient law, the court will stay the cause, and will dismiss it, unless the writing is produced, or the oyer effectually counterpleaded. They can find no other remedy. It is true, that a writing, not sealed, by common law, need not be set out with a profert, nor could oyer, be craved of it. But the general issue denied its execution, and if not sufficiently proved on the trial, it could be rejected on hearing, or if it varied from the contract alleged, the evidence was excluded. It is no argument against us, to say, that such writings are now raised, to the footing of sealed instruments, This does not bring sealed instruments to their level, but brings them up to sealed instruments, of course, profert of them is now necessary, and oyer may be granted. •

The court seems to leave it doubtful, whether pleading over, did not cure the want of profert, and whether a demurrer to a plea,, could reach the matter for this cause. It is well, it is left doubtful, for it may be assumed as a certainty, that want of profert. is not cured by pleading over, if plaintiff demurs to pleas. It is admitted, that pleading over, and not demurring in the first instance, does cure some defects, but proferí is not one. The principles on which defects are cured, and the cases so cured are better set out,in Stephen on pleading, 166, than in any other author, thus, “that if a man'pieadsover, he shall never take. advantage of any slip, committed in the pleading of the other side, which he could take advantage of, upon a general demurrer.” So the question goes back to the original inquiry, can the want of proferí be taken advantage of, upon a general demurrer?

If there should then, be doubts about the construction of the statute of Anne, originally; if the English courts, as Chitty seems to suppose, has reduced proferí to mere form, still, a different construction has prevailed on that statute in this country. It cannot be for a moment supposed, that all the former incumbents of the brench, overlooked this statute, as well as the previous one of Charles. No, they saw and well understood them, and’ allowed that their terms were reconcileable to the decisions of this court. Other cases may be quoted, of this court construing statutes in force in England, different from the construction there. Witness the statutes of limitations; and to prevent frauds, and perjuries; and why, let us ask, is the bar and the state at large, now surprised with a different construction ?

If it be conceded, that the British statute of 1753, has adopted literally, the statute of Anne, (a point by no means clear,) still, 'it is insisted that the statute of Anne, bears a different construction from that given by the court. There is not one word, which declares that proferí shall, thereafter, be held to be form, merely. The first clauses, literally, requires all demurrers to be special, unless the “very right of the cause, and matter in law,” shall appear to the judges to be for the demurrant, so that the right and law of the case is not changed; but courts are only restrained from deciding in favor of form, against the “right and law of the case.” Besides, there is an express exception, “so as sufficient matter appear in the said pleadings.”

Now, what is sufficient matter? The law, as it stood before, determined that matter, and -declared that “profert was an indispensable part of sufficient matter.” The remaining clauses, apply to their court in bank, when acting on the records of trials at nisi prius. They barely regulate the mode of taking advantage of these things. They do not convert substance into form; and they never, heretofore, have been held as adopted by the Yirginia act, of 1753, so as to regulate the forms of proceeding; and never have been taken in this country, as dispensing with profert of a deed, which is the foundation of an action. If that statute requires certain matters to be specially set down as causes of demurrer, it does not, from that provision, necessarily follow, that every matter, so to be set down, is form only. It was as competent for the legislature of that country, to direct substance to be specially set down, as it was to require form to be specially assigned. And if the courts of this country, allow these matters to be set down otherwise, the principle is the same. The last clause of the act, acknowledges the correct rule, laid down by the reporter in Bibb’s Reports; that is, if there is no appearance below, and no writ of inquiry, want of profert, will reverse. But on the contrary, if there has been a verdict, a writ of inquiry, or an appearance below, and the exception was not taken, it is not sufficientground to reverse. And if the point is saved in the court below, this court must decide on it, as the court below had to do.

But if the construction heretofore given to this statute, has been erroneous, we protest most solemnly, against altering that construction now; against the overturning several former decisions; against setting everything again afloat, and producing uncertainty in the law. We admit that one case, of late decision, which may not have carried its principles far into our jurisprudence, may not be considered as settling the law; may be overturned and corrected. But we deny that several cases can or ought to be so overturned; nor ought one, provided it has been the guide, and been implicitly followed, for upwards of twenty years. We cannot, therefore, help earnestly, seriously, and respectfully, soliciting the court to stop such a course; to permit the ancient cases to stand, and not to lose us in new paths, which we have not trodden.

There is one idea, which, on first blush, would seem to be inferred from the Opinion rendered, which is not entirely plain; but which ought to be corrected. It is this, that other pleas might aid those demurred to; that pleading over, in other pleas, might aid in oVertuling the demurrer to any one. The court could not have intended this. For the law is too well known, that in deciding on a demurrer to any plea or replication, the decision mlist be the very same, as if there was but one in the record. It is only the correction, therefore, of the phraseology, which is here suggested, to avoid improper inferences being drawn by other courts, or counsel.

But the court seems to have got round this want of profert, another way, and that is, the bond was filed in another court, and the general position seems to be assumed, that if a bond or deed is so filed, it is a sufficient excuse for the want of profert.

With due submission to the court, we must contend that this is not the rule. Alleging, that a bond is filed elsewhere, in the' custody of the law, will not excuse profert, or defeat oyer. The gist of the principle, or rule is, that it must be necessarily detained by the law. If it be not, it must be produced. If a party wishes to avoid the perils of his adversary seeing the deed on which he relies, it will not do for him to file it in some other court, when it is not called for; where the law does not demand and retain it, and then excuse his lack of profert by that means.

The question then comes back to the point, whe-therthis bond, though filed in the office of the appellate court, is necessarily detained there. This question, the court takes for granted, in the affirmative, when this was the point at issue. We maintain the negative, and require the proofs.

There is no similarity between sheriff’s bonds, guardian’s bonds, or those of executors and administrators; and supersedeas and injunction bonds, bonds for costs, as non-residents, or'even bail bonds.

The first class is taken for public purposes, and are executed in a court, who cannot enforce them, and to be there kept. But the latter class is executed to secure one party only,.in the progress of causes, and on the happening of the contingency by which they are forfeited, they belong to the opposite party, and not to the law. They are.no part of the record. If they are, the action thereon, to some extent, is local. It is true, they are not delivered to the party at the moment of their execution. If they were to be thus accepted, they would then, probably, be refused. The clerk then, is the agent of the obligee, constituted by law, to accept, and does so. If the'contingency of affirmance happens, which forfeits the-bond, then the individual to whom it is given, has the exclusive right to it, and it is not to be kept for the use of both parties. Indeed, all the bonds of sheriffs, guardians, Sic. are not kept for the benefit of the obligors, but as there may be many obligees, or persons who have a right to enforce tile bond, it is kept for therm. But can it be said, that when one party alone is, or can be obligee, that the law detains the bond for the benefit of the obligors also? Such an instance of the case of obligors^ cannot be found in law. By examination of ancient cases, when bail bonds were in practice, they were delivered to the party of course, when forfeited. Injunction.bonds, formerly, when forfeited, would, by* order of the chancellor, be delivered to the party. The law does not detain them in vain. If they are part of the record, they must be kept. If not, the law will not keep them, but surrender them to those entitled to them, and then they must be brought into court as other bonds. Lord Raymond, 1135; I. Sellan’s Practice, 291; Raymond, 970; Salkield, 498.

We, therefore, ask for tfie principle of law which makes supersedeas bonds a part of the record, and we also require the statute or principle of common law, which keeps the obligee, from the custody of this paper, when it is forfeited. The. question pending the writ of error, is, whether the judgment is right or wrong, and is undetermined; and after affiripance, this uncertainty is removed. The bond belongs to the obligee, and he may take it and sue elsewhere* '

Jtesponse to fhe petition,

In all cases of profert, dispensed with in the Eng-^00^5’n°tone ^as ^a^en under the observation of these memorialists, where a bond given, pendente lite, to secure the adverse party, and forfeited, was allow-ecj j-0 t,e ]¡;ept out 0f sight of the defendant, because it must be kept in the court where first given.

Wherefore, a re-hearing is respectfully solicited.

To which petition,. Judge Robertson delivered the following response.

The opinion in this case, was the fruit of deliberation. The court had maturely considered the doctrine of profert, and looked to all the consequences of deciding, that it is now not material here, in a declaration. In the view taken of it, in the opinion, 'the considerations urged in the petition, were anticipated, and we then thought, and still think, with undiminished confidence, that all these considerations, and many others which occurred to us, are successfully combated by the authorities, and reasoning, which we have, therein exhibited.

Ás, therefore, the petition presents no new idea on this subject, and nothing which is not, in our opinion, satisfactorily answered already, we deem it superfluous, to enter again, seriously into the argument.

We shall content ourselves with a very summary notice of the petition.

That want of profert, in a declaration, has been treated in England, as no cause for general demurrer, since the statutes- of Charles and Anne, is proved by the authorities undeniably.

So far as we know, or belive, it has never been questioned in England, sincé the statute of Anne. The researches and learning of the petitioning counsel have pot enabled him even to intimate, that there is any opposing authority, or even dictum,.

• That these statutes were adopted- in 1753, in Virginia, cannot be seriously doubted, and seems not to be denied, with any confidence, in the petition. The constitution of this state recognized them as the law here.

The statute of Anne, enacts expressly, that omission to make profert of deeds, bonds, letters testa-Hieníary, &c. shall be cured by verdict, and shall be taken advantage of only by special demurrer. This important fact, has either not been noticed, or is ded by the petitioner. The petition does not deny, that the English authorities, prove indisputably, that since the statute of Anne, omission of profert of the bond, or of the letters testamentary, has been cause of only special demurrer, in England; and it is equally clear, that, in Virginia and Kentucky, since 1753, and 1792, it could be taken advantage of only by special demurrer.

But, as want of profert, was still cause of special demurrer, it was proper to make profert. And hence, all the authorities, on this subject, shew that profert was- required. But they also shew, that want of pro-fert, was not cause of general demurrer.

Thus, the almost universal practise of making pro-fert, has been persisted in; and without discriminating between special and general demurrers, many lawyers and judges may have taken it for granted, that pro-fert is matter of substance.

Without the act of 1811, for simplifying pleadings, profert would now be necessary, unless its omission be cured by verdict. But as it was necessary, only to prevent the effects of a special demurrer, and its omission could not be prejudicial, unless a special demurrer was filed, it can be required' for no purpose, since the abolition of special demurrers.

If any innovation has been made on ancient usage, or if long established authorities, have been overturned, the legislature, and not the court, have done the work of reform. The court has only obeyed the legislative will.

We know of no case, since 1811, in which it has been judicially decided by. this court, that want of profert, is cause of general demurrer. Nonp such has been cited by the petition.

The cases of Scott vs Curd, Hardin, 64; and Sook vs. Knowles, I. Bibb. 283; and Metcalfe vs. Standford, all occurred, and were decided before 1811.

And if they had been more modern, the counsel will find by a re-examination of them, that their aplication to the question of profert, in this case is slight, and of very doubtful effect.

The case in Hardin, only decides, that a judgment by default, did not cure the want of profert. This, at that time, was undeniable, if the statute of jeofails did not, as the court supposed, apply to judgments by default. The court decided in that case, nothing more than that judgment by default, cured no defect, of which advantage might have been taken before judgment. Want of proferí might, at that time, have been fatal on special demurrer; and, therefore, it resulted, that it was not cured by judgment by default. But it is not even hinted, that omission to make pro-fort, was cause of general demurrer.

In Sook vs. Knowles, the court decided, that a plea of tender of a deed, was bad on general demurrer unless it made profert of a deed. The distinction between the necessity of proferí, in a plea, and in declaration, has been noticed in the opinion, and some authorities in support of that distinction, refered to.

It was not proper to decide, whether profert is necessary in a plea, because that question, was “coram non indeu.”

But it is obvious, that if it be necessary to make profert in a plea, it would not necessarily follow, that it would be equally necessary to make it in a declaration.

Some of the most important reasons why it might be required in pleas, do not apply now to declarations. It is very questionable whether the statute of Anne, should be, or ever was, construed to embrace pleas.

In the case of Metcalfe vs. Standford, a special de- ' murrer was filed to the declaration, and the court decided that, it ought to hav'e been sustained.

This was certainly right; for, at that time, want of profert was Cause of special demurrer. There is a suggestion by the court, ven passant,” that a want of profert is a substantial defect. But this is only an obiter reference to Leyfield’s case.

All that is said on that subject by llie court, is contained in the following sentence: “that a want of profert is a substantial defect, and may be taken advantage of, upon general demurrer, appears from Ley field’s cased .

If therefore, this suggestion were authoritative, it could not conclude the question, because, when Coke wrote, the statute of Anne did not exist, and of course want of profert, was substantial. On this topic, we are not disposed to .add any thing, to what is said in the opinion. The reasoning and authorities, which it contains, have not been confronted. We endeavored to shew by authority, that when a writing is the foundation of a suit, oyer may be demanded, although profert may not have been made. This part of the opinion,is not noticed in the petition. And as the counsel has cited no authority in support of the opinion which he expresses that oyer cannot be had of a writing of which no profert has heen made, we are the more confident, that we have not been mistaken.

As therefore, a defendant cannot be compelled to plead without oyer, of the writing, on which he shall be sued, there can be no danger of any of the consequences which are apprehended by the counsel. And this is a strong reason to shew, that profert is not material. X

If this court had ever adjudicated expressly on the statute of Anne, and on that of 1811, of this state, and decided, that, notwithstanding their operation, profert is essential in a declaration, we should have acquiesced iri that construction. But as such, a decision has never been rendered, and the reasons and authorities, for establishing a contrary doctrine, are so numerous and direct, as we have found them to be, we did not feel authorised to resist their force. No injury or inconvenience can result from our decision; and it does not unsettle any principle, which has been authoritatively settled. The practice before 1811, was conformable to law. If it has been generally persisted in, since that time, it is, because it accorded with long usage, and the prescribed forms of pleading, in books of practice; and because, as there had been no decision, on the effect of the statutes of Anne, and 1811, of this state, it was most prudent, as well as most agreeable to habit, to continue in the beaten track. It is even difficult to change long established forms. And we see eVen yet,in pleadings, many phrases, which may be dispensed with, but which are used, merely, because their use had become familiar and habitual.

We have not decided, that making profert,is error; we have only decided, that not making it, is not error.

Independently of any other authority, we would consider the case of Walton vs. Kindred, V. Monroe, decisive.

The late judges of this court, decided expressly and unanimously, in that case, that, by the statute of Anne, profert of letters of administration, was reduced from substance to mere form, the omission of which could be taken advantage of, only by special demurrer, and that, since the act of 1811, abolishing special demurrers, it cannot be necessary for any purpose, to make’the profert. We cannot consider this an obiter dictum. But if it were, the learning and research and habitual caution, and rectitude, of those judges, would entitle their suggestions, “arguendo” to almost as much influence, as if they were ever so authoritative. Besides, their reasoning, is not only cogent, but conclusive. It has not been denied, nor can it be, that if they were right, we cannot be wrong. For the same reasoning and authorities, apply with equal effect, to the profert of bonds and deeds, and letters of administration. The statute of Anne, embraces them all expressly, and places, them on precisely the same footing.

When profert of bonds was substantial, that of letters of administration, was equally so, and the same act, which changed the one into matter of form, produced the like effect on the other.

If then, the abolition of special demurrers, has dispensed with the profert of letters of administration, the dispensation must apply to the 'profert of bonds. There is no escape .from this conclusion.

And even, if the petitioning counsel had succeeded in shewing, that the opinion in V. Monroe, is entitled to no respect, his success in that effort, would have contributed but little, if at all, to impair the force, or diminish the conclusiveness of the reasoning, and authorities, which have been employed, in the opinion this case, to prove that profert, in a declaration is .now immaterial.

In addition to the authorities embodied in the opinion we will refer to the opinion of an eminent jurist* Professor Gould says, “at common law,the omission of profert, when profert was necessary, was matter of substance, ilion general demurrer, and not aided by verdict. But now by the 16th 17th Ch. II; and 4th and 5th. Anne, which are the great statutes of jeofails, it is “reduced to mere matter of form, and can be taken advantage of only by special demurrer, so it is aided by pleading over, and by verdict.”

In 'support of this opinion, he refers to many authorities, one of which, is, IV. Ba. Ab. 113.

We are allowed to adhere to the opinion^that since 1750, profert of letters of administration, and of deeds, and bonds, in a declaration, has been matter of form, the omission of which, could be taken advantage of, by special demurrer only; and that, since the act of 1811, such profert, is wholly unnecessary. And we feel authorized to say, that the effect of 'the statutes of Anne,and of 1753, of Virginia, and of 1811, of this state, hás never before been settled, or adjudicated on, by this court, unless it was done in the case of Walton vs. Kindred.

We are therefore, making no innovation, nor are we overturning settled doctrines. We are only declaring the law, as we find it to be, and as it ought (we think) always to have been; and in doing this, we have not treated irreverently, former decisions of this court, nor overleaped any barrier, reared by our predecessors. We repeat, that their only direct decision on the question, as it is now presented, is in V. Monroe, and that accords with our* in this case.

Many more considerations would be’subjoined, if it were proper, to enlarge this response. But we have neither the time nor inclination to amplify it.

The petitioner is, as he should be, jealous of the inviolability of the former decisions, and practice of this court. '

We feel as much respect, for the opinions and usages of our predecessors, as we ought, as men, or as judges, to cherish. And we shall never disregard them, unless we shall be imperiously required to do so, by a regard for principle, and the public interest involved in the just and wholesome administration of the law. ■

Our respect for the counsel, and a disposition to quiet the alarm which he has announced, have induced us to take a respectful notice of his petition*

The petition is overruled.  