
    WOOD vs. HARRIS.
    1. Should the true intent and meaning of a deed be mis-stated in the declaration, the variance is cured, if the deed be set out in the plea on oyer and non est factum be pleaded.
    2. On such issue the only question at trial is, whether the deed, as set out in the plea, was executed by the defendant or not.
    ERROR TO SALINE CIRCUIT COURT.
    Hayden, for plaintiff in error.
    1st. That the court erred in rejecting, upon the trial of the cause, the said writing obligatory as evidence in proof of the issue upon the plea of non est faetum. The instrument being set out by defendant on oyer, became a part of the declaration, and the proof offered corresponded therewith and with the declaration as prepared by plaintiff. See 1 Chitty 467, 468.
    2d. The court erred in not granting the plaintiff a new trial upon his said motion therefor.
    1st The writing obligatory offered in evidence ought not to have been excluded as evidence Upon the issue taken on the plea of non est factum. It was competent and relevant upon both counts of the declaration. The counts of the declaration are inartlficially framed, and are informal yet they are in substance good and such as opened a door for the proof offered.
    But if defective that defect was and is cured by the defendant having set the bond out on oyer, as being the same instrument on which the two counts are framed thereby making the instrument as set out part and parcel of each count of the declaration. See 1st Chitty 467, 468,
    The question then presents itself, does the instrument offered in evidence correspond wLh the counts or either of them as thus amended by defendant in his said specification upon his oyer thereof in his plea, surely nothing could have been better evidence, for the instrument set out in the plea and in the declaration, are exact copies of the one offered in evidence. The only advantage which defendant could have taken or availed himself of was one which a demurrer perhaps might have reached, but he did'not embrace it, and I hold that he could not object to the proof offered by plaintiff which was literally and legally the proof demanded by the issue.
   MqBride, judge,

delivered the opinion of the court.

Wood the plaintiff brought an action of debt against the defendant Harris and Hoiyell O’Neal in the Saline circuit court. The declaration contained two counts. The first count declared upon a writing obligatory executed by the defendants to the plaintiff, setting the same out substantially. The second count copies the writing sued on in extenso, and assigns breaches thereon.

The defendant craved oyer of the writing sued on, set the same out, and plead non est factum without affidavit.' He also filed a plea of offset. Issues were taken by the plaintiff, and the cause was submitted to the court, sitting as a jury, when the plaintiff offered to read the instrument sued upon as evidence in the case, to which the defendants objected, and their objection was sustained by the court. Whereupon the plaintiff took a nonsuit, and subsequently moved to set the same aside for the reason that his evidence was rejected by the court, but the court over-ruled his motion, and he excepted, and has brought the case here by writ of error.

It is not now necessary to inquire whether the declaration be sufficient in law to authorize the instrument of writing sued on to be read in evidence. The defendant is precluded, by the pleadings in the cause, from now raising that question.

Mr. Chitty, in his pleadings vol. 1 page 467, lays down the rule as follows. “If the deed be set out on oyer, it becomes parcel of the record, and the court will adjudge upon it accordingly, though it were not strictly demandable when granted. Should the true fact and meaning of the deed be mis-stated in the declaration, the variance is cured and becomes immaterial, if the deed be set out on the plea on oyer and non est factum be pleaded; for on that issue the only question at the trial is, whether the deed, as set out in the plea, was executed by the defendant or not, and the jury are not competent to decide what is the legal effect of the deed.”

The plea not having been verified by affidavit, the plaintiff had the right therefore to read the bond in evidence.

The other judges concurring, the judgment of the circuit court is reversed, and the cause remanded.  