Bently of Ronold v. Harmanson's executors , 1 Va. 273 ( 1794 )

The President.

The reason for reversing the judgment of the County Court would have been a sound one, if the fact upon w’hich 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 obligor was the survivor. It might, if true, have properly been taken advantage of Dy plea. The defendant was permitted to give special ¡natter in evidence, but what that special matter was, is not spread upon the record 5 if it respected the fact of survivorship, 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 cosis.⁽¹⁾

(1) Braxton’s adm. v. Hilyard, 2 Munf. 49.