Magee v. Erwin , 5 Stew. & P. 54 ( 1833 )

LIPSCOMB, C. J.

The action was on a scire fa-das against bail. On the trial, the defendant plead three pleas—

1st. Nul tiel record, to recognizance of bail.

2nd. That the affidavit, required bylaw to be made, was not made.

3rd. That the writ issued with an indorsement for bail, on the 5th December, 1829, and that the alleged oath, on which the order to hold to bail, was founded, was not filed until the seventh of the same 'month.

To the first plea, the plaintiff below took issue. — ■ To the second, he replied, that there was a good and sufficient affidavit, before the original writ, in the action, issued.

To the third plea he replied, that the affidavit was made on the 5th December, before the writ issued, and was filed on the 7th December.

The issue on the first plea was decided in favor of the plaintiff. The defendant demurred to the replication to his third plea, and judgment was given in favor of the plaintiff.

It is not important, as we conceive, when the afjffi davit was filed, provided it w?|is made before the order to hold to bail. There v|ms, therefore; no error in the judgment on the demurrer to the plaintiff’s replication.

The issue on the second plea was directed by the Court to be tried by the jury, although the defendant objected to its being so disposed of. On the trial of this issue, before the jury, an exception was taken to the affidavit offered in evidence; and the Court permitted Basil Meslier, Esq. before whom it purported to have been made, to be called, and to prove, by himself, that he was an acting justice of the peace, at the time it was taken by him.

The case has been very imperfectly presented to us; but, from the brief statement of the plea and issue, it seems to us, that it should have been tried by the Court. The sufficiency of the affidavit should unquestionably have been determined, by the judge, from an inspection. This we conceive, however, not to be such an irregularity, as will be sufficient ground for a reversal of the judgment.

The fact that a jury had interposed between the issue and the judgment, can not vary its result. It must still be considered the judgment of the Court. And we may treat the verdict as a nullity: that could not, in any event, have influenced the judgment, It does not appear that any evidence went to the jury, that the judge alone was not competent to pass on ; and we will infer, that he did so pass on its legal effect.

The plea could only be tried by the production of the affidavit, if not lost or destroyed. The affidavit is not before us, and we can not determine whether the testimony of Meslier, the justice of the peace, was properly received, or not.

The judgment must be affirmed,