
    Dibrell, et al. vs. Miller.
    Where an action was brought in the name of A, 15 and C, founded upon a bond and decree thereon, the declararon averred, that the bond was made payable to A, B and D, by mistake, when it should have been made payable to A, B and C, and that the decree rendered therein was rendered by mistake m favor of A, B and I), when it should have been rendered in favor of A, B and C: Held, that the declaration was bad upon demurrer.
    A person claiming under and by virtue of a deed or record, can'aver and claim on its face nothing inconsistent or against them in pleading. Averments are fcused to cure, not to create ambiguities.
    The declaration in action in the name of A, B and C, founded upon a record set forth, that A, B and C, recovered a judgment which, by mistake, wa«? entered in the name of A, B and D: Held, that mil tie l record is a good plea, and that the averment could not aid the variance between the judgment declared on and the one produced in evidence.
    A demurrer, in any stage of the pleadings, ¿oes back to the first fault in pleading, no matter by whom committed.
    The plaintiffs brought their action of debt in the county-court of White county against the defendant, which, by consent, was transferred into the circuit court of said county. The declartion was for the sum of two thousand dollars, which defendant detains from the above executors, and which he owes and detains from the other plaintiffs; and stated that, on the 13th day of Dcce’r., 1823, at a term of the chancery court for the 3d judicial circuit of Tennessee, held at Sparta, the above named Jacob Robertson, (who was living) Elijah Ward, Howard Cash, Win. Hill, Wm. Dyer, David iVorris, Robt. B. Perkins, a certain Caleb Job, Joseph Parker, Roht. B. Perkins and Jesse Wilson, by a decree of said court, recovered against a certain James M’Campbell and George Sutherland, the sum of five hundred and twenty-nine dollars and fifty cents, with interest thereon from the 1st day of January, 1818, until paid; also, the costs of said suit, which amounted to the sum of forty-six dollars sixty-one cents; and afterwards, .oij the 20th day of December, 1823, of the December terra, 1823,'of said court, a bill of revivor having; been n , . , . t . , ÍIIgcí lor that purpose, said cause was revived in the name of Ephraim Perkins, adm’r. of Caleb Job, dec’d., one of complainants in the cause aforesaid, against Jas. M’Campbell and George Sutherland, whereby said Perkins was made a party; and on said 20th day of December, 1823, said M’Campbell and Sutherland having prayed for and obtained an appeal in said cause to the supreme court held at Sparta aforesaid, and the said P. M. Miller, the above defendant, with said Campbell and Sutherland, at Sparta, &e. in open court, on the said 20th day of December, in the year aforesaid, made and delivered their certain bond, obligatory, signed and sealed, &c. which is here shown to the court, the date whereof is, by mistake, the 19th day of December, 1822, the same, in fact, having been executed and delivered on the aforesaid 20th of December, 1823; by which, the parties thereto acknowledged and held themselves bound unto the said Elijah Ward, Jacob Robertson, Howard Cash, Wm. Hill, Wm. Dyer, David Norris, Robert B. Perkins, Ephraim Perkins, Joseph Parker, and Jesse Wilson, in the sum of two thousand dollars; conditioned, that whereas, the saidJacob Robertson, Howard Cash, Wm. Hill, Wm. Dyer, David Norris, .Robert B. Perkins, Caleb Job, Joseph Parker and Jesse Wilson, by a decree of the honorable .chancery court for the third circuit, recovered of the said M’Campbell and Sutherland, at December term, 1823, of said court, against the above bound M’Campbell and Sutherland, the sum of five hundred and twenty-nine dollars and fifty-two cents, with interest from the 1st January, 1818, besides costs; from which decree, the said M’Campbell and Sutherland prayed for and obtained, an appeal to the next supreme court at Sparta, &c. Now, if the said M’Campbell and Sutherland shall well and truly prosecute their appeal with effect, or in case of failure, shall well and truly pay and satisfy the decree of said chancery court, or should the same be dismissed by said supreme court, or be discontinued for the want of prosecution, or _ . . , n i , , be decided against them, then well and truly pay and satisfy the ' decree of said chancery court, with all such costs and damages as shall be awarded and decreed against them, then shall the obligation be void, otherwise to remain in full force, &c. And the plaintiffs aver, that in drawing the condition to the said obligation aforesaid, and in reciting the names of the complainants in said suit against M’Campbell and'■ Sutherland, the name of Caleb Job was inserted by mistake, and that the name of Ephraim Perkins should have been inserted instead of said Caleb Job, who was then dead. And the plaintiffs further aver, •that during the pendency of said suit of Elijah Ward and ■others against said M’Campbell and Sutherland, in said -supreme court for the third circuit, Jacob Robertson, one of tire complainants in said suit, departed this life, and af-terwards, to wit: at August term of said court, 1828, his death was suggested, and the cause revived in the name of Anthony Dibrell and David Ames as executors of said Robertson. And the plaintiffs further aver, that af-terwards, to wit: on the 11th September, 1830, the cause was finally heard in said supreme court; and the said court thereupon decreed, that the plaintiffs should recover against said M’Campbell and Sutherland, the sum of five hundred and twenty-nine dollars and fifty-two cents, with interest from the 1st day of January, 1818, amounting up to the day of said decree, to nine hundred and thirty-two dollars and thirty-five cents, and costs amounting' to twenty-three dollars and seventy-five cents, which decree is in full force against said M’Campbell and Sutherland. And said plaintiffs further aver, that in entering said decree last mentioned on the minutes of said supreme court, the name of Caleb Job was put down and recorded, when in fact the name of Ephraim Perkins should have been put in the ■stead and place of Caleb Job. Further averment, that the said decree as entered against said M’Campbell and Sutherland remains in force and unsatisfied, the said M’Campbell and Sutherland and the said security, Miller, having tailed to pay the same; nor have they paid to the plaintiffs said sum of two thousand dollars, in said bond specified, or any part thereof, so plaintiffs say, &c.
    To this declaration Miller pleaded, 1st. Nul tiel record.
    2. That Anthony Dibreil and David Ames, executors, and the said Howard Cash, Wm. jjill, Wm. Dyer, David Norris, Rpbt. B. Perkins, Caleb- Job, Joseph Parker and James Wilson, on the 11th day of September, before the supreme court, recovered by their complaint against the said M’Campbell and Sutherland for not per-' forming the undertaking of the same bond,,the sum of dollars, the damages sustained by reason of the non-performance of the condition of said bond,' which judgment is still in force.
    3. ■ That the decree was not pronounced in the chancery court at the date of the supposed writing obligatory, nor by said bond, did they become bound1 to the complainants, in whose favor a final decree was pronounced, which is verified.
    4. That the writing obligatory was not, by mistake, dated on the 19th day of December, 1832, but was truly dated of that date, and before any final decree.
    5. Covenants kept and performed.
    6. That Caleb Job had departed . this life1 before1 the date of the writing declared on, as .by the records and proceedings in said chancery court wijl appear, and that said suit was revived in said chancery court in the name of his representatives, so that plaintiffs aver that said writing obligatory was executed and delivered before a final decree had been pronounced in favor of E. Perkins and the other complainants, and this defend'nt verifies.
    Issue is taken on the first plea, that there is such a record; to the 2d plea, mil tidl record is replied; issue on the 4th plea; demurrer to the 3d and 6th pleas. The court sustained the demurrer to the 3d and 6th pleas.
    
      On the trial of the issues, the jury found for the plaintiffs, and that he owes the said two thousand dollars, to be discharged by the payment of twelve hundred and fifty-eight dollars and ninety-five and a half cents, besides costs. A rule was entered to show cause why a new trial shall he granted; which, on argument, is overruled. Exceptions are taken to the opinion of the court overruling the motion. On the issue of the defendants plea of nal tiel record, the court found that there was a failure of record to sustain the issue; and that the defendant had failed in the product^011 °f die record as by him pleaded; and upon these findings gave judgment, that the defendant go hence without day, &c. Exceptions are taken, which brings to ■the yiew of the court the record produced» A writ of error brings the cause into this court. ,
    
      S. Turney fy Ji. B. Lane, for plaintiffs in error.
    
      Jas. Campbell W. E. Anderson, for def’t, in error.
   Peck. J.

delivered the opinion of the court.

The first question to he considered is, whether the plaintiffs are entitled to the benefit of their several aver-ments in the declaration, as brought forward by the plaintiffs in this case; the averments must he taken as particular, in contradistinction to general. The office of these special averments is to bring to the view of the court, that which otherwise Would not even by implication appear; and while the averment is necessary to make out the right of him who would use it, it must be consistent with the other statements which the plaintiffs set up. Dyer, 146.

The averment being the allegation of the party, can only be used to aid in letting in such matters of fact, proper to be proved, as could not be shown without it. One cannot aver against the existence of a recited statute, nor against the proceedings of a court of record, nor to that. which is contrary to the bond declared on. To know , ■» i • « ill-what may be averred, it is necessary to look to the evidence the averment proposes to let in, and ‘see if it be admissible. The averment may, it is true, cure an ambiguity, arising upon the face of a deed; but if the deed upon its face be plain, to aver against or inconsistent with it, would be to create an ambiguity. Therefore, the law disallows it.

These rules being premised, it is proper to recur to the' averment objected to in the declaration. “The first is, that in drawing the condition to the obligation, and in reciting therein the names of the complainants, the name of Caleb Job, one of the obligors, was inserted by mistake, and that the name of Ephraim Perkins should have been inserted instead thereof, said Job being dead.

The other averment is this, “that in entering the record of the decree last mentioned upon the minutes of the su-> preme court, the name of Caleb Job was put down and recorded, when in fact the name of Ephraim Perkins should have been inserted in the place of said Job.”

What are the effects of these averments? The object or effect is to change the import of the obligation, and to direct enquiry to matters aside from those directly contained in it. Then the demurrer filed by the plaintiffs would reach their own declaration. It is certainly a fair inference, that the obligors understood for what they were bound; the language of the obligation, and all its recitals, are their own. When drawn, and so tendered, it was the' folly of the obligors to receive it. I am aware it is common to say, that taking such bonds are the acts of the court; but it cannot escape observation that the parties are pre-> se ‘ when these bonds are taken, and therefore, subject to objection and correction before executed and received. So that there can be no pretence for latitude of construction to reach supposed merits, or cure alleged hardships; they therefore stand, when put in action, as other obligations. The argument,'that the appeal, by reason of the bond, (such as it was) taken to the supervising court, and ^ appellants thereby have had the benefit thereof, and complainants delayed, cannot change the law. It is no argument for admitting a principle, which, if carried out, will have the effect, in the language of the books, of making bonds hollow, by means of proofs at war with the tenor and meaning deducible from the face of the instrument, under averments, which make other parties, and create other liabilities, than those within the contemplation of the party executing the same.

As the evidence is inadmissible, the averment was improper. So far, we have considered the case upon the-question of evidence, aside from that admissible upon the issue joined on, the plea of nul tiel record. Can the evidence in support of this issue be received? It is confessed in the declaration, that the bond recites parties to the decree different from those presented in the record; and that to make them consistent, the name of Perkins should have been put in the place of Job, who was dead. The record is relied upon by the plaintiff to make out his case; his right to recover, and the measure of that recovery, depend upon it; hence he has to own its existence and continuance in force. The authorities are abundant to show that there is a failure of record. In debt, on a judgment, a variance as to the name of any party, his abode, or addition, will be fatal on nul tiel record. 1 Roll. 654. So in debt on a judgment against Hamilton Fanning, Esq., and on nul tiel record, the judgment produced was against the right honorable Hamilton Fenning, Earl of Wigton, having the privilege of peerage, the variance was fatal, 7 T. R. 447. So, too, the variance between Edmond Darby and Edward Darby held fatal, although he was the person against whom a commission of bankruptcy had issued, 7 Taun. 399, and not the party to the suit. So, if a recognizance be, to appear and answer for beating one so, that he died, and the declaration be for beating one merely, held fatal. Wharton’s Digest, 464, an American case. So, a declaration on a judgment against A. S. and D. G., was held not to be supported on nul tiel record, by a judgment against A. S. and D. G. jr.,.

Thus we might add cases almost without number in support of the rule. A stronger case to illustrate it than the one before us cannot be produced. Suppose the fact to be', that on the day of the execution of the bond, the decree had been entered in favor of Job, the deceased, person,, that it was done with a view to the appeal, and that the appeal was taken for that cause, the fact of the death lying within the knowledge of the appellants, when afterwards the defect was cured by making Perkins, his representative, a party, and a new decree followed. Who cannot hut see that the bond became nugatory by the act of the complainants? by their own act they had placed themselves wholly beyond it; the relation of the parties and their rights being thus chánged by the complainants, the plea urged by the obligor in excuse would be irresistible. After the making of the bond, the obligors could not control the obligees from the changes they may have thought proper to put upon the record; and as touching this amendment, they were powerless, they could be saved from liability only by the salutary rules of law, which rejects the record for the variance. It is not intended, however, in the expression of these reasons, to find the delivery of the bond on a day different from that averred; this, in our'view of the case, is unnecessary, for the whole case turns upon the other points of variance; which having been rightfully found by the circuit court, the judgment is affirmed.

Judgment affirmed.  