#### John Giles, Plaintiff in Error, v. John Shaw, Defendant in Error.

ERROR TO MADISON.

Oyer can not be demanded of a record. A variance between the record declared on, and the one produced as evidence, can be taken advantage of by the plea of nul tiel record.

Opinion of the Court by

Justice Lockwood.

This was an action of debt, commenced on a judgment recovered in the [then] territory, now state of Missouri. The declaration is in the usual form. Subsequent to the filing the declaration, the plaintiff filed a transcript of the judgment in Missouri. To which declaration the defendant “ having oyer given him of the record declared on,” says, that he is not bound to answer farther than by demand, (supposed to mean demurrer,) and plaintiff joins in demurrer. On this state of pleadings the circuit court of Madison gave judgment for defendant. To reverse which a writ of error has been taken to this court. The declaration was sufficient, prima facie, to sustain the action. Could the defendant then, crave oyer of the -transcript on file, and demur ? Such a course would completely exclude the plaintiff’s testimony, and in most cases work the greatest injustice. Oyer at common law is only demandable of specialties. Our statute has probably extended the rule, but clearly limits the right to demand oyer of instruments signed by the party, and can not apply to actions founded on judgments. The proper course for defendants would have been to have pleaded, either nil debet * or nul tiel record. Nul tiel record it has been decided, is the proper plea to put in issue such a judgment as has been declared on, where the judgment is either domestic, or from a sister state. If, however, the defendant regarded the judgment as not coming within the purview of the constitution and law of congress, then the proper plea would have been nil debet. On the trial of either of these issues, the defendant could object to a material variance between the evidence offered and the declaration. The court do not decide which of these pleas would be proper, but are of opinion, that inasmuch as the declaration is sufficient on its face, that the court erred in sustaining the demurrer.

*220 Cowles, for plaintiff.

Blackwell and Reynolds, for defendant.

Judgment reversed with costs and the cause remanded to Madison for further proceedings.

The court having been referred to some authorities since the above opinion was written, remark, that the demurrer ought to have been regarded by the court below as a nullity. The demurrer only states, that “ having oyer given him of the record declared on,” but does not proceed to set it out, or in any manner make the transcript a part of the demurrer. This was clearly erroneous. See 5 Bac. Abr. title, “ pleas and pleadings,” page 438, and the authorities there cited. It is by those authorities holden, “ that ifthe defendant, after praying oyer of a deed, do not set forth the whole of it, the plaintiff may sign judgment as for want of a plea, or the court will quash it; for that by craving oyer, the defendant undertakes to set out the whole verbatim, and if he do not do so the plea is bad.” That oyer is not, in strictness, demandable of a record, see 5 Bac. Abr., page 437. (a) , (1)

Judgment reversed.

*

Quere: Is nil debet a proper plea in any case to an action of debt upon a record ? See Chipps v. Yancey, ante, p. 19.

(a)

The defendant shall not have oyer of a record when only conveyance to the action, as in escape; nor in debt on a recovery in an inferior court, for it remains there; nor of a record in another court, nor where he is party to it. 1 Saund., 9.

One has no right to have oyer of a record, as of an original writ. 1 T. R., 150. 5 Com. Dig., 467.

The defendant is not entitled to oyer of the original record, and if he prays oyer of it, the plaintiff may proceed without talcing notice of it. Douglass, 227, 477.

(1)

A scire facias upon a recognizance issues after such recognizance is made a record, and oyer of it is not demandable; if the writ misdescribes the record, the proper plea is mil tiel record. Slaten v. The People, 21 Ill., 28.

If a demurrer craves oyer of an instrument, it must be set out in haec verba, or the declaration will be judged as it stands. Young v. Campbell et al., 5 Gilm., 83.

In order to take advantage oh demurrer, of a variance, between the note set out in the declaration, and the copy of the note filed with the same, oyer should be craved, and the note set out in haec verba in the demurrer. Bogardus v. Trial, 1 Scam., 63.

To make a copy of a note, filed with a declaration, a part of the record for any purpose, oyer must be craved. Sims v. Hugsby, post. See Harlow v. Boswell, 15 Ill., 57. Collins v. Ayres, 13 Ill., 362.

Where a judgment is declared on without a proferí, no oyer can be had. Hall v. Williams, 8 Greenl., 434.

In Connecticut, oyer must be given of the record of the superior court, when required. Williams v. Perry, 2 Root, 462.

'The proper mode of obtaining oyer is by prayer entered on record, to which the opposite party may counterplead, and thereby have a decision of the court whether oyer is to be given or not. Pendleton v. Bank of Kentucky, 1 Monroe, 171.