Osborne v. Reed

1 Blackf. 126, 1821 Ind. LEXIS 8

• Court: Indiana Supreme Court
• Decided: November 6, 1821
• Status: Published

Opinion

Blackford, J.

Debt on a penal bond, of which profert is made in the declaration. The defendants craved oyer of the bond, and it was granted. -They then craved oyer of the condition ofthe bond, but this was denied by the Court below. Where the plaintiff declares upon a deed, and makes profert of it, the defendant has a right, on oyer, to a copy of every part of the obligation, even to the attestation and names ofthe witnesses, if required. Willes, 288. Formerly the deed remained in Court all the term in which it was shown, subject to the defendant’s “inspection. 5 Co. R. 74. And this is supposed still to be the case, for every purpose beneficial to the defendant. Willes, 288. — 1 Wils. 16. When over is denied where it ought to be allowed, it is an error of the Court for which their judgment will be set aside. 2 Ld. Raym. 970. — 1 Wils. 16

(1). In the case before us, the record shows that there was a condition to the bond .on which the action was founded; and that oyer of the condition was craved in proper time, but the Court refused to grant it. Thus a material par.t of the cause'of action was kept from the defendant’s knowledge. Fie was denied information to which the law entitled him, and without which it was not to be expected that he could make his defence.

Caswell, for the plaintiffs. Test, for the defendant.

Per Curiam.

The judgment is reversed’, and the proceedings subsequent to the demand of oyer of the condition of the bond are set aside, with costs. Cause remande.d for further proceedings.

But if over be granted to a party not entitled to it, he cannot assign that for error. 2 Ld. Raym. 970.