#### Wood v. The Commonwealth.

June, 1826.

Plea of Nul Tiel Record.† — In what cases the plea of nul tiel record is proper.

Recognizance — Scire Facias — Fatal Variance. ‡When a recognizance is entered into before two Justices, and it omits to state that it was taken in the county to which the Justices belong, while the Scire Facias, in reciting the recognizance, sets forth the county in which it was taken, the variance will be fatal.

Record — Defect—Averment.?—No defect in a record can be supplied by averment.

Appeal from the Superior Court of Law for Albemarle county.

A Scire Facias issued from the County Court of Albemarle against Isaac Wood and John Wood, praying execution on behalf of the Commonwealth, on a recognizance entered into by the defendants, conditioned for the personal appearance of Isaac Wood at a Court of Albemarle county, ordered to be holden for his examination on a charge of having stabbed a certain Charles Pemberton. The Scire *Facias recites, “that Isaac Wood and John Wood, on the second day of November, 1816, at the parish of and county aforesaid, personally appeared before Charles Yancey and Jeconias Yancey, two of the Justices of the Peace for the county of Albemarle, &c.” It then recites the recognizance, and concludes, “as by the said recognizance in our County Court of Albemarle sent and now remaining in the said County Court, manifestly appears. And whereas, the said Isaac Wood has failed to make his personal appearance before our said County Court of Albemarle, directed by the said Justices to be holden as aforesaid, at the time and place aforesaid, according to the condition of the said recognizance, as appears to us of record.”

The defendant John Wood,- craved oyer of the recognizance, and demurred, assigning several causes of demurrer; one of which was, that it does not appear from the said recognizance that it was executed in Albemarle.

The recognizance does not state, as set forth in the Scire Facias, that it was entered into in the county of Albemarle.

The County Court gave judgment for the defendant, and the Commonwealth appealed, to the Superior Court of Law, vcho reversed the decision of the County Court. The defendant John Wood, appealed to this Court.

Stanard, for the appellant.

Attorney General, for the appellee.

†

Plea of Nul Tiel Record, — See principal case cited with approval in Hutsonpiller v. Stover, *15*Gratt. 587.

‡

Recognizance — Scire Facias — Fatal Variance. — See principal case distinguished in Gedney v. Com., 14 Gratt. 324. The principal case is also cited in this case at pp. 325. 330.

Scire Facias — Demurrer.—There is no doubt that a *scire facias may*be demurred to. Garland v. Ellis, 2 Leigh 556, citing principal case as authority. See principal case also cited in Archer v. Com., 10 Gratt. 640.

?Record — Defect—Averment.—To the point that no defect in the record can be cured by averment, the principal case was cited in Hamlett v. Com., 3 Gratt. 83.

June 5.

JUDGE GREEN.

A party may plead nul tiel record, and if upon inspection by the Court, the record is not such as is described in the pleadings, he will have judgment; or he may crave oyer of the record, which makes the record a part of the pleadings in that case; 18 Vin. Abr. 184, pl. 20, 21; and when it is spread upon the record by oyer, if the party admits *that the record of *135which oyer is given him is the true record, and relies that it does not support the pleadings or Scire Facias, it seems to me that he should not deny that there is such a record, by plea; but, that he ought to demur, upon the ground that it varies from the pleadings or Scire Facias. If he denies the verity of the record of which oyer is given, he should plead nul tiel record after oyer. 18 Vin. 183, pl. 18.

In this case, the Scire Facias recites, that the defendant, on the 2d day of November, 1816, at the parish of at the •county of Albemarle, personally appeared before two of the Justices of that county, and entered into a recognizance, which was returned to, and remains in, the said County Court, and was forfeited, as appears to us of record. This last expression refers to all the preceding recitals. Upon the recognizance, of which oyer was given, nothing appears of its being entered into in Albemarle; and therefore, that fact, (and an important one,) does not appear of record, and I think cannot be averred. No defect in a record can be supplied by averment. This is a fatal variance, and the judgment of the Superior Court should be reversed, and that of the County Court affirmed.

The other Judges concurred.*