Smith v. Alworth

18 Johns. 445

• Court: New York Supreme Court
• Decided: January 15, 1821
• Status: Published

Opinion

Woodworth, J.

delivered the opinion of the Court. The first cause of demurrer is, that it does not appear that the bond was executed in the presence of any witness. A defendant, who prays oyer of a deed, is entitled to a copy of the attestation and names of the witnesses, as well as every other part of the deed. (1 Tidd Pr. 527. Willes, 288.) And where the defendant is entitled to have oyer, it cannot be dispensed with by the Court; nor can he be compelled to plead without it. (1 Tidd Pr. 528.)

(a) But the defendant cannot avail himself of this objection on demurrer. He was not bound to plead until the names of the witnesses were given; but if he elects to answer, it is a waiver of the objection, and the Court will presume that the bond was well executed.

The remaining causes of demurrer appear to be frivo-’ lous. The money in the condition was payable to the plaintiff, by necessary intendment, he having obtained a judgment against James Alwortk, and the condition being to pay the same, with interest and costs.

This Court will presume, that the judgment set out in the condition, is a valid judgment, until the contrary appears, and that the bond was legally taken on an appeal to the Common Pleas. The condition is in the words prescribed by the act to extend the jurisdiction of Justices of the Peace, sess. 41. ch. 94. sec. 17.

The endorsement by the Justice, approving the security,, is admitted by the demurrer, and must be considered as made in pursuance of the directions of the act.

The plaintiff is entitled to judgment, and the defendants have leave to plead de novo, in twenty days, on payment of costs.

Judgment for the plaintiff.

Vide 1 Dunlap's Pr. 399.340.