Vandiver v. Hyre's Administrator , 5 W. Va. 414 ( 1872 )

BerKshire, P.

The court is of opinion that the circuit court did not err in refusing to issue a rule against Trout and Judy, founded on the affidavits of Charles H. and Archibald Vandi-ver.

And the court is further of opinion that no error to the appellant’s prejudice is disclosed by his second bill of exceptions, as oyer of the bond was afterwards granted, of which he had the full benefit.

And the court is also of opinion that it was not erroneous to allow the obligation to be given in evidence to the jury, upon the state of facts disclosed by the appellant’s third bill of exceptions.

And the court is further of opinion that the court committed no error in excluding the statements of Judy, Trout, Roderick and Heiskill, and the letter of the appellee, as set forth in the fourth, fifth, sixth and seventh bills of exceptions, as they nor none of them were pertinent to the issue before the jury.

But the court is also of opinion that the court erred in overruling the demurrer to the declaration, as upon oyer of the obligation being granted it thereby became incorporated into and constituted a part of the declaration which was fatally defective for failing to aver the non-payment of the debt by the co-obligors of the appellant.

And the court is therefore of opinion that the judgment be reversed, with costs to the appellant here, and the cause remanded to the circuit court for further proceedings, and with leave to the appellee to file an amended declaration if he desires to do so.

The other judges concurred.

Judgment reversed.