Chiles v. Beal , 3 Ala. 26 ( 1841 )

COLLIER, C. J

It is' insisted for- plaintiff in error, that as oyer cannot-be had of a record,, no objection could have been taken on demurrer to- a defect in the bail bond.

Oyer it is said, was formerly demandable, not only of deeds, but of records; but by the more recent practice, it is not granted of a record. The King v. Amery, (1 T. Rep. 150;) unless it be a deed enrolled, letters- of administration, &c. of which profert is made. (1 Arch. Prac. 164.) Of private writings not under seal, oyer never could' be claimed of right, but Courts will sometimes make an order for- their production, so as to enable the opposite party to plead. (Tidd’s Prac. 639: 8th ed.; 1 Saund. Rep. 9, d. n. (g); Stephen on Plead. 69, and notes 3, Amer. ed.; 1 Saund. Rep. 92, a. n. 3.)

The proper mode of taking advantage of a misrecital of a record in pleading, is not by a demurrer, but by the plea of nul tiel record, concluding with a prayer, that the same may be inspected by the court. (3 Salk. R. 330.) And this practice is dictated by the consideration, that the record misreci-ted, does not become a part of the proceedings in the cause, until it is made such by bill of exceptions. (9 Johns. Rep. 287; Dane’s Ab. chap. 179, a. 13, s. 4.)

From this view, it will follow, that the variance (if any) between the bail bond actually executed, and that described in the scire facias,- was not properly presented to the Court, for its decision.

As it is not pretended' that the bail bond as described in the scire facias, is defective, the County Court should not have sustained the demurrer. And without inquiring whether the bond was described according to its legal effect, the judgment is reversed, and the cause remanded.