Cooper v. Gray

The opinion of the court was delivered by

Sergeant, J.

Several variances between the scire facias and the record are stated as the grounds of the judgment below in favour of the defendant on the plea of nul tiel record, and also that the scire facias was prematurely issued.

The first variance alleged is, that the original suit was brought by Cooper & Dunton, and the scire facias was issued in the names of Cooper & Dampton. This, we think, is not material, because the recognizance was given by the defendant in the case of Cooper & Dampton, No. 128, March term, 1839, and was entered by the defendant in that as the proper suit. He is therefore estopped from taking advantage of this clerical error in the spelling of a name. Besides which, the plea of nul tiel record puts, in issue only the recognizance, the rest being inducement, and if the variance was material, it should have been specially pleaded.

The second variance is, that the original judgment was against both Hall and M’Kelvy, whereas the scire facias states a judgment against M’Kelvy only. On the record and paper book before us, it is clearly a judgment only against M’Kelvy, who alone appeared. What the form of the declaration is does not appear, nor whether it would vary the case in this respect.

The third variance is, that the scire facias states that the recognizance was acknowledged on March 2,lS39,but the ieeognizance shows that it was dated and acknowledged on February 26, 1839, and approved in February 1839 by one of the judges of the court. The docket of the prothonotary states, that it was approved and filed on March 2, 1S39. Amidst this discordancy of dates, it is difficult to say precisely when it was acknowledged and approved. However, the plaintiff does not, in his scire facias, bind himself down to the date of the recognizance. He says it was acknowledged on March 2, 1839, which it might have been, though dated before, just as the delivery of a deed is a matter independent of its date. If the recognizance had been stated by its date, the alleged variance might have had more foundation; but being stated in the scire facias merely as acknowledged on a certain day, the date of the recognizance is not made material, but merely the fact of acknowledgment.

As to the other suggestion, we think the cases cited by the counsel for the plaintiff in error, show that the objection that the scire facias was prematurely issued, cannot be taken advantage of on the plea of nul tiel record. It must be specially pleaded.

Judgment reversed, and judgment for plaintiffs below.