1862. January Term.

Smith's adm'r

V.

Lloyd's ex'x.

This was an action of debt in the Circuit court of the county of Alexandria, brought in September, 1852, by John L. Pascoe, administrator de bonis non with the will annexed of Joseph Smith, deceased, against John Lloyd, and afterwards revived against his executrix, upon the following paper:

"Whereas a suit is now pending in the Circuit court for the county of Alexandria-John Lloyd against the bailiff, Charles Scott, on a writ of replevin, in which Jonathan Schofield claims to have an interest, and the amount in controversy being five thousand dollars, arrearages of rent, interest and costs, I hereby agree, in case I succeed in said suit to the amount in controversy, and hold myself bound, to secure satisfactorily, on real estate in the town of Alexandria, (which is to be kept insured by me until the debts are paid,) to Joseph Smith the sum of eleven hundred dollars, to William Veitch and Benoni Wheat, lately trading under the firm of William Veitch & Co., the sum of two hundred and fifty dollars, and to Thomas K. Beale and James M. McCrae the sum of nine hundred and fifty dollars, (they being first duly authorized to receive the said amount,) in the manner following, to-wit: In case of recovery to the full amount as aforesaid, I will secure satisfactorily, to the several parties as herein before mentioned, the sums as stated, bearing an interest of six per cent. per annum, after the 1st of May, 1828, which interest is to be paid annually.

"And I further agree to redeem and pay off to the said parties herein mentioned, or to their heirs or assigns, the sums they are hereby severally entitled to receive, at the expiration of ten years from the time the said suit now depending may be decided, reserving to myself the right and privilege of paying off the said principal debt and all the interest that may be due thereon at any time I may think proper after the date hereof, and fully releas

ing the securities herein promised; or in case I should recover a part of the amount in controversy, I hold myself bound to pay to the parties aforesaid such proportion as the amount recovered may bear to the amount in controversy. And for the faithful performance of which I hereby bind myself, my heirs and executors.

"Witness my hand and seal this the 25th April, 1828. JOHN LLOYD. [Seal.]"

The amended declaration contained two counts, in neither of which is there a profert of the paper. paper. The first count, after setting out the paper, alleges that the replevin suit referred to in it, had been finally decided, more than ten years before the institution of this action, in favor of John Lloyd, for whom a judgment had been rendered for the full amount in controversy in the suit; whereby the said Lloyd became liable to pay to Joseph Smith and the plaintiff as his representative the said sum of eleven hundred dollars with its interest.

The second count did not set out the paper, but referred to it, and charged that among other things Lloyd thereby bound himself to pay to Smith, within ten years after the decision of the case against Scott, the sum of eleven hundred dollars, with legal interest from the 1st of May, 1828, until paid, "the plaintiff's testator being first duly authorized to receive the same." And it averred that the suit had been finally decided in favor of Lloyd more than ten years before the institution of this action, and that the plaintiff, as administrator, &c., of Smith, was duly authorized to receive from Lloyd the said sum of eleven hundred dollars, with interest thereon as aforesaid.

The defendant demurred to the plaintiff's declaration, and also craved oyer of the writing obligatory in the declaration mentioned, and of the condition thereof. And the plaintiff joined in the demurrer; and for ex

1962.

January
Term.

Smith's

adm'r

V.

Lloyd's

ex'x.

cuse for not producing the bond he says: "The plaintiff in answer to the oyer craved by the defendant of the original bond upon which this action is founded, and for reason for not producing it, says that the original bond is now on file in the Circuit court of the United States for the county of Washington, in the District of Columbia; that the plaintiff has applied to the said court, since the institution of this suit, for said original bond; that said application was opposed by the defendant; and that the court therefore refused to deliver to the plaintiff the said original bond ; and so it is impossible for the plaintiff to produce said bond, after the use of all means in the power of the plaintiff to produce it. And this he is ready to certify. Wherefore he prays judgment, &c."

The defendant demurred to the plaintiff's excuse, and the court sustained the demurrer; and there was judg ment in the action for the defendant. Whereupon the plaintiff applied to a judge of this court for a supersedeas to the judgment, which was awarded.

F. J. Smith, for the appellant:

The question presented by the record is as to the sufficiency of the excuse for the non-production of the orig inal of the obligation sued on.

The requirement of the production of an original paper upon which an action has been brought, as authorized by the technical proceeding of craving oyer, rests on the exercise of an undoubted right, and on the supposition of a real desire, by the defendant, that the paper should be produced, and further, that its inspection is needed, for some substantial grounds of defence.

To demand oyer (or to hear it read) was complied with (we are told in the books), in the days of oral pleading, by having the paper called for read aloud in open court— since the establishment of written pleading, by delivering a copy of the instrument to the defendant.

In this case, after oyer was demanded, the plaintiff, as he states in his excuse, applied for the original obligation to the court where it was deposited, and was there met by the defendant, who opposed said application, and defeated the same, and thereby prevented the plaintiff from obtaining possession of the bond.

Now, whilst as a general rule the defendant, on a demand for oyer, has a right to require the production of an original paper, yet the exceptions to the requirement are as well established as the rule itself.

The excuses for not making profert rest on the broad principle that the law requires no man to perform an impossibility.

Thus, if an obligation has been destroyed by fire or other accident, has been lost, is in the possession of the adverse party, or is deposited in another court, the plaintiff may rely on either of these excuses to justify not making profert.

Thus, Lord Coke says: "And if the deed remain in one court, it may be pleaded in another court, without showing forth, quia lex non cogit ad impossibilia." See 3 Thomas Coke, ch. vi., Title Pleading, top p. 405, margin 373; Wymark's Case, 5 Coke's R. 74; Doctor Leyfield's Case, 10 Coke's R. 92. In the last case the principle is laid down, that in cases of necessity the production of an original paper, upon oyer, will be dispensed with. In that case the deed was destroyed by fire.

The same doctrine is fully recognized in Read v. Brookman, 3 T. R. 151, in which the counsel on both sides concede it to be law, and the court so decide, that when the deed, of which oyer is demanded, has been pleaded, and remains in another court, or where it is in the possession of the adverse party, that such excuses will be sufficient for not making profert of the original. These, however, are only two of the instances illustrating the principle that in cases of necessity, or where it is im

1862. January Term.

Smith's adm'r

V.

Lloyd's ex'x.

1862. January

Term.

Smith's adm'r

V.

Lloyd's ex'x.

possible for the plaintiff to make profert of the instru ment, the excuse will be sufficient. See 2 Chitty's Pleading, top p. 148, margin 197. See also Taylor's adm'x v. Peyton's adm'x, 1 Wash. 252; Waller's ex'ors v. Ellis, 2 Munf. 88. See Judge Tucker's opinion, p. 96, sanctioning the rule as laid down in Read v. Brookman; Anderson v. Barry, 2 J. J. Marsh. R. 265; Moore's ex'or v. Paul, 2 Bibb's R. 330; Butler v. State, 5 Gill & John. R. 577.

Does not this case, then, fall within the principle, as established by these authorities, and is not the excuse pleaded by the plaintiff for not making profert of the bond sued on amply sufficient?

The bond is filed in another court; that court is be yond the limits of Virginia; application has been made to it for the bond by the plaintiff, and the court refuses to deliver it. The plaintiff's attempt to obtain it is resisted by the defendant, thereby defeating the effort. These facts are admitted by the demurrer to the excuse. of profert. Is it not then to require the plaintiff to perform an impossibility, by insisting on his producing the bond sued on? and does not such a requirement, under the circumstances, come in direct conflict with the maxim quoted by Lord Coke, “lex non cogit ad impossibilia”?

Is not this case as strong, to all intents and purposes, as if this bond were in the possession of the defendant? and yet in that case it will hardly be pretended that the excuse would be held to be insufficient.

Robert E. Scott, for the appellee:

There are two questions involved in the case: 1st. On the demurrer to the declaration. 2d. On the sufficiency of the excuse for not producing the bond sued upon. But the demurrer to the declaration was not passed upon by the court below, and therefore it only comes up upon the rule that where issue is taken upon a demurrer it goes back to the first error.