
    Beatty v. Smith and Others.
    Saturday, February 10, 1816.
    i. Bond with Condition — Debt—Pleadings.’'—In debt on a bond, if the declaration describe it as a writing obligatory for a sum of money; and the defendant, without praying oyer of the bond, plead payment, and also several other pleas, alleging performance of a condition, according to which the bond was to be discharged, by the delivery of a certain quantity of iron; and, issue being j oined thereupon, the parties go to trial; and it appears, by bills of exceptions, that the evidence before the jury did not apply to the plea of payment, but to the other pleas only; a verdict for the defendant ought to be set aside, and a new trial awarded, with leave to him to take oyer of the condition of the bond, and plead de novoall his pleas, except that of payment, being irrelevant to the claim set out in the declaration, and, therefore, the issues joined upon them being immaterial. And this is the case, notwithstanding a copy of a bond, corresponding with that described in the pleas, be inserted in the transcript of the record, and certified by the clerk to be the bond on which the declaration was filed.
    Practice — Reinstatement of Cause — Mistake of Supreme Court Clerk — Case at Bar. — A mistake of the clerk of this court, in not entering the name of counsel on the argument docket, in consequence of which, the counsel was not heard, (being absent, with leave of the court, when the cause was called.,) is not sufficient ground for re-instating the cause, after the decision has been regularly certified to the court below.
    In an action of debt in the Superior Court of Wythe county, the plaintiff Beatty declared upon a writing obligatory, sealed, &c. by the defendants John Smith, Andrew Kin-cannon and Joseph Bell, for the sum of $140, payable on the *first day of April 1811, in the usual form. A writing obligatory was inserted by the Clerk in his transcript of the record, and certified by him to be the bond on which the declaration was filed ; — but without any praying of Oyer by the defendants ; — which writing appeared to be for the sum of $140, “to be discharged by the payment of one ton of good merchantable bar iron, assorted, at Rufus Morgan’s in Abingdon, for value received.”
    The defendants pleaded payment, and, afterwards, by leave of the court, three other pleas ; viz. 1st, that, “on the said first day of April 1811, they did deliver at Rufus Morgan’s one ton of iron pursuant to the tenor and effect of the said note in writing, whereby the same became discharged ; and this they are ready to verify ;— 2d, that, before and on the first day of April 1811, they were ready to deliver the said ton of iron according to-the tenor and effect of the said writing ; but that the plaintiff had no agent at the place mentioned to receive the same ; and this, &c.; 3d, that the plaintiff, by the tenor and effect of the said writing, appointed the said Rufus Morgan his agent, so far as respected the receipt of the iron ; and that the defendants did deliver at the said Rufus Morgan’s one ton of iron in discharge of the said writing, which the plaintiff has received; and this, &c.” — The plaintiff filed general replications ; — and issues were joined.
    At the trial, several bills of exceptions were filed, setting forth evidence introduced, applying to the three last mentioned pleas, but not to that of payment. — The’jury having found a verdict for the defendants, the plaintiff made a motion for a new trial, on the ground that such verdict was contrary to.the evidence; and, his motion being overruled by the court, he filed another bill of exceptions, stating also evidence applying to the same three pleas aforesaid, as all the evidence in the cause.
    Judgment being entered for the defendants, the plaintiff appealed to this court.
    
      The cause was argued here, on the 3]st day of January 1816, by the counsel for appellant only, no counsel appearing for the appellees, who were solemnly called, and came not.
    
      
      See monographic note on “Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118; mono-graphic note on “Bonds” appended to Ward v. Churn, 18 Gratt, 801.
    
   ‘^Saturday, February 10th, 1816.

JTÍDGI3 ROA2ÍB)

pronounced the court’s opinion, “ that all the pleas, except the plea of payment, are irrelevant to the claim set out in the declaration, the appellees having failed to avail themselves of the condition of the bond by taking oyer thereof : — the issues taken therefore on the said pleas arc immaterial : — and it appearing by the bills of exception that there was no evidence on the plea of payment, the said judgment is erroneous, — which is therefore reversed. And if is ordered that the verdict, and the special pleas and proceedings thereon be set aside, and the cause remanded to the said Superior Court of law, to be further proceeded on in the plea of payment, with leave to the appellees to take Oyer of the condition of the bond and plead de novo.”

January 31st, 1817, the counsel for Ihe ap-pellees moved the court to re-instate the cause, and permit him to be heard on behalf of his clients, on the grounds, that he had been regularly engaged as counsel for the appel-lees before the argument of the cause ; that his name stands regularly entered on one of the dockets of the court, in the hand writing of the deputy clerk ; that, in making out the argument docket of that session for the court, the clerk had omitted to mark his appearance for his clients on that docket; and hence, on the calling of the cause, the ap-pellees appeared to the court to be unsupported by counsel; that, at the time when the cause was called, as well as when it was decided, the counsel for the appellees was absent at Washington, under the sanction of the court, being engaged on public business of importance to the commonwealth : and that, from these accidents, in which neither his clients nor himself were in fault, they had lost the advantage of being heard by their counsel : — but the court, not doubting the correctness in point of fact of the grounds, taken by the moving counsel, was nevertheless of opinion that the precedents had not gone so far as to justify it in granting the motion; and that the establishment of such a precedent might be of dangerous consequence. — The motion vyas therefore overruled. 
      
       See Beasley v. Owen, 3 H. and M. 449.
     