
    Miner B. Sherwin and Philander Vaughan vs. Moses Bliss.
    Chittenden
    December, 1831.
    A declaration on a jail bondisbad, if it shows that the judgement, upon which execution issued, was not correctly described in the bond.
    If defendants plead performance, and conclude with a verification, the plaintiff ought either to demur or reply over. Merely adding the similiter is not regular.
    It is erroneous for the county court to decide on a matter of fact, without an issue properly joined, showing an agreement of parties to have the issue tried by the court.
    This was a writ of error, brought to reverse a judgement rendered in a suit upon a prison bond. Bliss, the defendant in error, was sheriff of said county, and took the bond in question, and brought the suit in his own name, or suffered the creditor so to bring it, without any assignment of the bond. On inspection of the record, it appeared that said Miner B. Sherwin was committed to prison, upon an execution in favor of Orson H. Saxton and Horace Sherwin, and said Vaughan was his bail. The declaration described a regular judgement of the county court, rendered at the adjourned term, on the 22d of June, 1829; the taking out execution and commitment of defendant Sherwin, and the taking of the bond in question. All appeared regular tilÍ the bond appears fully'described ; it then proceeded as follows : “ which said bond describes and sets forth, that the term of said county court, at which said judgement was rendered, was holden on the first Monday in June, 1829 ; whereas it ought to have been set forth, as the fact is, that said term of said county court was holden on the 22d day of June, 1829.” The defendants prayed oyer of the consideration of said bond, and it was spread upon the record; and the same variance there appeared. The defendants then pleaded two pleas : 1st, nul tiel record; 2d, a plea of performance, concluding with a verification. To both these pleas the plaintiff replied, by adding the similiter merely. The record further showed that, after one or two continuances, the court rendered judgement for the plaintiff, that there was such a record, and that the plaintiff ought not to be barred. To reverse which judgement, the present writ of error was brought. In millo est erratum, was pleaded.
    
      ■Marsh and Hill, for plaintiffs in error.
    
    The first issue should have been found for the defendants below. It is a general rule, that courts and juries cannot find contrary to the record admission of the parties. The plaintiff below admits by his declaration, that no such judgement ever was rendered as described in his bond. The jury, (6 Comyn, 288,) may find by their verdict all things given in evidence material to the issue, if it be not contrary to the record or the admission of the'parties. What judgement did the first plea put in issue ? It was the judgement recited and set forth in the bond. It was necessary there should be a judgement to support the bond. But the plaintiff below says •in his declaration, I have no such-judgement, the bond is mistaken; and the record he offered in evidence supported trot the judgement set forth in the bond, but the parol judgement set forth in his writ. This averment of the plaintiff, that his bond describes a wrong judgement, is material, and he cannot avoid the effect of it-But if by any rule of law it could be rejected as impertinent, or immaterial,under the pleadings in the presentcase,itisotherwisemade .to appear to the Court that the judgement described in the bond 3s wrong — that there is no such judgement to support the bond.
    It willbe seen that‘the second plea prays ever of the bond and the condition. Where an instrument is brought upon the record 'by oyer being craved by the defendant, it becomes, not a part of the plea, but of the plaintiff’s declaration.— United States vs. Sawyer, 1 Gallison, 86 ; Hughs vs. Mower, 2 Pet. Con. Rep. 71, note. When by the oyer -of the bond and the condition, the condition came upon the record, and made a part of the plaintiff’s declaration, it then judicially -appeared to the court, that the condition of the bond -did not truly recite the judgement and the execution upon which Sherwin had been -committed. The bond-set forth one judgement, and .the declaration a different one ; and what judgement did the court find to have been rendered.? the one in the bond or the onein the declaration i
    
    But it is likewise a rule of law, when it appears to the court that the plaintiffhas no cause of action, he cannot have judgement, though defendant’s pleadings are insufficient The instrument here declared upon is an official bond. The statute has prescribed the cases where, and the forms according to which, these instruments may be taken, and unless there -is a compliance these requisites, the bond is of no validity. The condition of the bond must truly set forth the court, time, &c.; (vide Statute,J and a s*ngle bond, or one without a condition, or a different condition from what the law prescribes, would be of no validity. If in the present case the defendant had prayed oyer of the condition, and the condition bad contained any thing not warranted-by the statute, no matter what the defendant might plead, the eourt would not render judgement for the plaintiff. By the plaintiff’s own declaration, as well as by the defendants’ pleas, it appeared in this ease the sheriff, when he took the bond, did not insert the’ condition the law pointed out. He did not insert the true time when the court was held. A title or right defectively stated may be cured by verdict; but a defective title never can be. It is bad on demurrer, motion in arrest, or writ of error. This is a case of defective title. When he alleges that his bond recites a wrong judgement, he shows, his bond to be void and himself out of court.
    On the second plea the judgement should have been for the defendant, if any judgement should have been rendered. That plea, after oyer, states a general performance, concluding with a verification,-and offers no issue. The facts setup are a sufficient answer to the declaration, and they are not traversed or denied by the replication,-but, on the contrary, they are confessed and not avoided'. We offer' to verify our plea ; the plaintiff says he will help us ; but the court find against the joint admissions of both parties. No issue of any description is formed under this plea. The replication does not deny the plea- or affirm the declaration.
    The plaintiff eould not have offered'art issue without traversing the facts set up in the plea. It cannot be said, even in the case where the breaches are assigned in the declaration, and the defendant, after oyer, pleads performance,- &c., concluding with a verification, the parlies are at issue. There is r.o-affirmation on one side and negative on the other: If the defendant pleads that A is living, and the plaintiff that A is dead, without a traverse that A is alive, the issue is bad after verdict. — -(Sav. 86.) All the authorities concur in the position that issue cannot be joined on a plea of general performance ; and wherever it is pleaded the plaintiff in his replication must reassign breaches, or support his declaration, and traverse the plea, concluding his replication with a verification ; and this although the defendant cannot answer the breaches by his rejoinder,as that would be a departure.— 1 Saun. 103; Willes, 12; Coup. 575.
    
      
      Leavenworth, for defendant in error.
    
    1. The plea of nul iiel record is not a proper plea in an action of debt on jail bond, for this reason, the question whether there is a variance between the bond and the declaration, is not raised in this Court. We cite 1 Chit. PI. 479, 481 ; 5 Dane, 422.
    
    
      2. The second plea is, that the bond was not broken: issue was joined upon this plea, and the fact proved in the Court below that it was broken, and no question is presented by this plea in this Gourt.
    3. We also contend there Is no variance between the record ¡shown-in-evidence and the declaration.
   Phe opinion of the Court was pronounced l>y

Hutchinson, C. J.

The defendant’s first plea, of nul tiél record, refers to the record of the judgement described in the declaration as the foundation for the execution on which the debtor was committed to prison. That judgement appears correctly described, and was probably proved by the record produced. But there is no question properly before this Court, arising upon that plea. The defendant’s plea of performance concludes with a verification. This would be right or wrong according to the nature of the plea. If it were nothing but a general plea of performance, or one alleged in terms not contradicting the specific allegations of the breach in the declaration, or brought new matter into controversy, It was correct. If it consisted in-nothing but an averment ofperfonnance of all-things -specifically alleged, in the declaration, not to have been performed, it oughtto have concluded to the country. Had this plea concluded-to-the country, ad • ding.the -similiter alone would have 'been necessary. As this plea is, the plaintiff ought either to have demurred specially, because the plea concluded-with a verification, or else to have replied over, praying-an-enquiry by the country. The merely adding the similiter by the plaintiff amounts to nothing. It closes’ no issue at all. And the plea of performance stands as if unanswered wholly. Moreover, the county court rendered judgement upon this second plea, without any issue of law or fact being joined to the court. And they could not decide an issue of fact unless by the agreement of parties. The regular joining an issue of fact to the court, would be sufficient evidence of such agreement of the parlies : but here is nothing of that kind, and nothing which authorized the court to render judgement upon the plea in bar.

We are not disposed, however, lo.occupy much time in crjii-cising upon these irregularities, which might be rectified, on terms, alter a reversal or the judgement, while proceeding to render such a judgement as-the county eourt ought to have rendered ¿ and'pass to consider the declaration, which we consider incapable of support. It would have been bad, even if the judgement had been rendered by default. The prison bond, though taken to the sheriff, is taken for the benefit of the creditor; and can be binding upon the signers, only, when the imprisonment is legal. Not that the plaintiff, in a suit upon such a bond, must prove a lawful imprisonment, in the first instance. The bond, reciting that which shows, a lawful imprisonment, is sufficient prima fa-eie evidence to entitle the plaintiff to recover. But yet the defendants are not bound by this. They may show the imprisonment illegal, either from the beginning, by showing that there was no* judgement to warrant the execution, or that the imprisonment, at first legal, has become otherwise,,by reversal of the judgement, or by a payment and discharge. In the present case, the declaration shows, that the bond is founded upon an execution, issued upon a judgement of the same court, for the same sums as the judgement first described in the declaration, but rendered at a eourt hold'en on the first Monday of June, 1329; when the first described judgement was rendered at the term holden on the 22á day of June, in the same year. That is, the judgement was rendered the 22d day of June ; the execution issued upon a judgement rendered the first Monday of June. This variance is as fatal, as a variance in the sums, or parties, or any other particular whatever.

The judgement of this Courtis, that the county court erred in the rendition ofjudgement in said original action ; that the declaration of the original plaintiff, now defendant in error, is wholly insufficient. In the allowance of costs we follow the printed rule of this Court, with regard to the taxation of costs upon writs of ■error. The plaintiffs in error must recover their cost in the prosecution of this writ of error, but no cost in the original suit, because the point on which we now decide was not raised and insisted apon by the plaintiffs in error,, in their defence to the original suit.  