
    *Bently Executor of Ronold v. Harmanson’s Executors.
    October Term, 1794.
    Bonds — Oyer—Waiver—Case at Bar. — Debt upon a bond — defendant, without taking: oyer, pleads pay-m ent, with leave to give special matter In evidence. The bond given in evidence had the name and seal of another obligor. It not appearing in the appellate Court by a bill of exceptions, or otherwise, that the obligor not sued was the survivor, and the jury having found a verdict for the plaintiff, that Court cannot say that, the judgment rendered upon the verdict was erroneous.
    This was an appeal from a judgment of the District Court of Accomack, reversing a judgment of the County Court. The appellant brought an action of debt against the appellee upon a bond executed by the testator of the appellee. The defendant pleaded payment, without craving oyer of the bond, arid leave was given to offer special matter in evidence.
    The bond produced in evidence at the trial, and which is set out in the record, has the signature and seal of a co-obligor, and is joint. The jury found that the defendant owed the debt, and judgment was thereupon entered for the plaintiff. Upon an appeal to the District Court, this judgment was reversed, because there appeared to be a joint obligor who survived the defendant’s testator against whom the charge survived.
    
      
      See monographic note on “Bonds” appended to Ward y. Churn. 18 Graft. 801.
    
   The PRESIDENT.

The reason for reversing the judgment of the County Court, would have been a sound one, if the fact upon which it is founded had appeared in the record ; but it does not. The declaration is upon Harmanson’s bond alone, without taking notice of another obligor. A bond appears in the record, with the name and seal of another obligor, but 1st, it is doubtful whether it can be noticed, since oyer is not taken. 2dly, It does not prove this material fact, that the other ob-ligor was the survivor. It might, if true, have properly been taken advantage of by-plea. The defendant was permitted to give special matter in evidence, but what that special matter was, is not spread upon the record; if it respectéd the fact of survivor-ship, it was decided by the jury against the defendant.

The judgment of the District Court is to be reversed, and that of the County Court affirmed, with damages and costs.  