1862. January Term. Smith's adm'r V. Lloyd's ex'x. formerly existed that there was no remedy at law. But in Read v. Brookman, 3 T. R. 151, it was held by the court of King's Bench that it was a sufficient excuse for not making profert of a deed that it was "lost and destroyed by time and accident." This is a leading case on the subject, and placed it on the true ground, which is, that the law compels no one to do an impossibility. Indeed Lord Coke had placed it on the same ground in assigning as a reason why a deed remaining in one court may be pleaded in another, without shewing forth, quia lex non cogit ad impossibilia. Wherever, therefore, a party cannot produce a deed, at least unless his inability proceed from his own wilful act, he is not bound to give oyer of it. We regard this as a true test, though we do not mean to say it is the only one. Let us apply this plain and simple test to the present case, and see whether according to it the excuse here given is sufficient. The formula of stating the excuse in the approved precedents of pleading is very general; as, that the deed has been lost or destroyed by accident; or, that it is in the possession of the defendant, &c.; and that therefore the plaintiff cannot produce the same to the court. 1 Chit. Pl. 349; 2 Id. 439; Steph. 441. In this case the excuse is stated very fully and formally, and the substance of it is: that the original bond on which the action was brought was then on file in the Circuit court of the United States for the county of Washington, in the District of Columbia; that the plaintiff had applied to the said court, since the institution of this suit, for said bond; that said application was opposed by the defendant; and the court therefore refused to deliver the bond to the plaintiff; and so it was impossible for the plaintiff to produce it, after the use of all the means in his power to do so. This excuse comes fully up to the requisition of the test before stated, and not only shows an impossibility on the part of the plaintiff to produce the deed, but that such impossibility has been occasioned by the act of the defendant himself, who, by demurring to the excuse, admits the truth of it. We are therefore of opinion that the excuse is sufficient. It is not necessary for the excuse to show that the party making it is entitled to the custody of the deed; but, on the contrary, that he is not so entitled, or is otherwise unable to produce the deed. Nor is it necessary for the excuse to show that the plaintiff is entitled to recover the money mentioned in the deed and claimed. in the action. The right to such recovery must be tried under the general issue or some other issue directly made up for the purpose, and not in a collateral enquiry, the only object of which is to ascertain whether oyer ought to be given of the deed. It is supposed that a defendant who craves oyer desires to have it, and will himself do nothing to prevent his having it. His object in craving it is to be better able to make his defence after he gets it, and not to make his defence in the act of craving it. An excuse for not producing a deed may be made in the declaration, or it may be made in another form after oyer is craved by the defendant. Suppose the declaration contains neither profert nor any excuse for not making it, and the defendant appears at rules when the declaration is filed and craves oyer, as he did in this case; what ought then to be the course of proceeding? Ought oyer to be given or a good excuse for not giving it made before the defendant is required to plead? or may the clerk proceed, as he did in this case, to mature it for trial at the next term by giving a rule to plead, and entering a judgment in the office by nil dicit? If the original deed be filed with the declaration, as is generally the case, the defendant should at once take oyer of it, and demur or plead at his election; but if the deed be not so filed, and the defendant will not 1862. January Term. Smith's adm'r V. Lloyd's ex'x. 1862. January Term. Smith's adm'r V. Lloyd's ex'x. plead without oyer, the clerk may properly take the rules, as he did in this case, without regard to the craving of oyer, so that the case may be ready to be disposed of at the next term of the court unless there be good cause for a continuance. If an excuse for not giving oyer can be made at rules, its sufficiency can only be determined by the court, and there is no reason for making it until the next term of the court after oyer is craved. But it was argued by the counsel for the defendant in error that, though the excuse in this case be sufficient, the. demurrer thereto goes back to the declaration, which is faulty, and the judgment should therefore be for the defendant. It is true as a general rule that on demurrer the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. But to this rule there are exceptions; as when the plaintiff demurs to a plea in abatement, in which case the court, deciding against the plea, will give judgment of respondeat ouster, without regard to any defect in the declaration. So the court, in examining the whole record to adjudge according to the apparent right, will consider only the right in matter of substance, and not in respect of mere form, such as should have been the subject of special demurrer. Steph. 162-4. We think that this case also is an exception, and that in deciding on the demurrer to the excuse the court ought not to go back to the declaration. The excuse is a mere collateral matter, certainly standing on no higher ground than matter of abatement. The law prescribes no mode of making it. It may be made as well ore tenus as in writing. And the objection to it may be made as well orally as by a formal demurrer. If made orally, the objection would of course not reach back to the declaration, and make it necessary for the court to pass upon its 1862. January Term. adm'r V. Lloyd's ex'x. sufficiency. It can have no such effect if made formally Jry by demurrer. There can be no legal difficulty, and generally no inconvenience, in presenting the question Smith's on both sides ore tenus. It is a question for the court to decide (unless an issue of fact be made up thereon for the jury), and may be disposed of by its rules and orders like any other collateral question coming up for its decision in the course of legal proceedings before it. The case is analagous to a proceeding to enforce the production of an instrument not under seal, on which an action or defence may be founded, and which the court may require to be produced for the inspection of the adverse party. 3 Chit. Gen. Prac. 433, 619; 2 Arch. Prac. 219. An error of the court in deciding the question when it comes up orally would be liable to review and correction by an appellate court, as well as when it comes up formally by written excuse and demurrer. In the former case the point could be put upon the record by a bill of exceptions. In the latter it would be put there by the pleadings, and the decision of the court thereon, which would be entered in the order book. Even if the demurrer to the excuse operated as a demurrer to the declaration, it would be to the whole declaration, and not to each count severally. As the craving of oyer and excuse go to the whole, so also must the demurrer to the excuse, if it goes to the declaration at all; according to the principle of the case of Ward v. Sackride, 3 Caine's Rep. 263, referred to in 1 Rob. Pr. (old) 290. That principle is, that a demurrer by the plaintiff to the defendant's plea cannot operate as a demurrer by the defendant to the plaintiff's declaration to any greater or less extent than the plea of the defendant was pleaded to the declaration. If, therefore, a declaration contain two counts, the first of which is confessedly bad, and the plea of the defendant is to the whole cause of action, extending as well to the first 1862. January Term. Smith's adm'r V. Lloyd's ex'x. count as to the second, upon a demurrer by the plaintiff to this plea, judgment cannot be given for the defendant upon the ground that the first count is bad. In this view of the case we would have to consider it as upon a demurrer to the whole declaration; and we must so consider it, because there was a demurrer to the declaration which was not decided upon by the Circuit court otherwise than by giving judgment for the defendant on his demurrer to the excuse. The whole record is before this court; and if, upon the whole, judgment ought to be for the defendant, the judgment of the Circuit court must be affirmed. We will therefore proceed to consider the case upon the demurrer to the declaration. It is a general demurrer, and indeed could not have been otherwise, the action having been brought since the enactment of the Code which abolished special demurrers. And it is a demurrer to the whole declaration, and must therefore be overruled if either count be good. We think both counts are good, at least in sub stance. As to the first count, a formal objection is taken to it which would be unavailing if well founded, to-wit, that it sets out the cause of action by way of recital. But it is not even well founded. The quod cum, as it was called, might always have been used, and generally was, in actions ex contractu, though not in actions of trespass. But the chief objection taken to the first count is, that it does not aver performance of a condition precedent, to-wit, that the plaintiff's testator was first duly authorized to receive the amount demanded in the action. This condition precedent is supposed to be created by the use of these words, in parenthesis, “(they being first duly authorized to receive the said amount,)” which follow the agreement to secure on real estate the several sums of money to the several parties mentioned in the instrument. In deciding upon the demurrer we |