
    A. Perry, Sheriff, vs. Symon Clymore.
    
      A paro! release cannot prevail against a deed. So where A. gave the sheriff his bond to produce a slave named B. at a certain day, A. cannot prove by pared that the sheriff agreed to'receive a negro named C. instead of B.
    On the pleaof non est factum, to a bond conditioned to perform covenants, the plaintiff must have a verdict, if the bond be proved; and on a reference to the jury to assess the damages they cannot find for the defendant.
    Where the court obliged a plaintiff on motion of the defendant, while the ease was before the jury on the issue of non esi factum in a suit on a bond for covenants, to submit the question of damages to the jury, without being served with a rule by the defendant, so to do, the court said, they would not set aside a verdict found under such circumstances, unless the plaintiff bad objected, before the verdict, on account of the surprise, or on .account of his want of preparation to prove his case before the jury.
    Tried at Lancaster Spring Term, 1825.
    This was an action of debt on a bond conditioned for the delivery of a negro named Daniel, levied on, under an exes cution at the suit of Wilson Allen, against Fowler "'Williams: Plea, non est factum.
    
    The defendant claimed the right of submitting the condition ofthebo-d to thejury, under the act of assembly, that the damage sustained by the plaintiff might thereby be ascertained; and the presidingjudge ruled accordingly, though it was objected to by the plaintiff’s counsel.
    It appeared in evidence, that Daniel was valued at $500, that he had been levied on under the above execution, and that he was not produced according to the condition of the bond; but that plaintiff told the defendant that if he could get the two Georges they would answer the same purposes as Daniel.- The two Georges were put into the plaintiff’s possession and were sold by him. . Walker bought one, and the witness, Temple, saw plaintiff receive some of the money, The witness said further, that the execution of Willson Allen, vs. Fowler Williams was placed in his hands by the plaintiff, for the purpose of taking the two Georges; but that he failed to get them, and returned the execution. John Bevens proved that he was present when the plaintiff had possession of the two Georges, and heard the plaintiff address the defend.ant thus, ‘ old gentleman make yourself perfectly easy about the affair, for I have got what will keep you safe.” The two Georges were present at the time.
    On this evidence the jury found for the defendants.
    The plaintiffmoved for a new trial on the grounds, that
    1st. This being an action of debt on a penal bond fof the performance of covenants, and non est factum pleaded, the plaintiff was entitled to a vef diet on that plea.
    2nd. Because the court charged the jury, that the condition of the bond was before them, though’ the plaintiff’ ob-: jected, until compelled thereto by rule for that purpose, which had not been previously taken out,'and that the plaintiff could not recover, as he had not proved any damage, which he was bound to do. . .
    3rd. Because the court ruled, that a parol release could discharge a party from performance of an agreement under seal.
   Nott, J.

I think the plaintiff was entitled to a verdict in this case on the plea of non est factum. The condition of the bond was not submitted to the jury for the purpose of de-determining whether the plaintiff was entitled to a verdict; for that had been already decided on the general issue. But the sole question was the amount of damages he had sustained. If however, upon that enquiry, it had appeared that he had sustained no actual injury, the court would not perhaps have granted a new trial, merely for the purpose of saving the plaintiff the costs.

The second question is more a matter of form than suh>-stance. In the case of Mitchell vs. Dawkins, (Harper 479;) the court decided that the defendant should have ruled the plaintiff to submit the éondition of the bond to thej ury; but in that case no notice was given of such an intended motion, until after court had adjourned. In this case the motion was made while the case was before the jury on the other plea. A rule in such case would be a.mere formal ceremony.... If the plaintifffytxá objected upon the ground of surprise or of not being prepared to go into the case, I think it would have been a good objection. But he does not put it on that ground. This motion 'therefore ought not to prevail.

Williamson and Clinton, for the motion.

Miller and Dunlap, contra.

1 am of opinion however that he is entitled to a new trial on the third ground. A parol release cannot prevail against a deed. But in this case there was no prooí even of a parol release. There was a promise to release if the two other negroes were delivered. But there was no proof that the condition on which the promise was made was ever performed. It was proved that he had the two Georges in his possession. But there was no proof that they were delivered to him by the defendant. The plea of release was' gpt sustained, and a new trial must therefore be granted.  