The evidence which the defendants offered at the trial was rightly excluded. It was offered for the purpose of proving that Gray, the principal recognizor, against whom an officer had an execution, paid the amount thereof to the officer after the return day of the same, when it was not in force, and when the officer had no authority, by virtue of it, to receive payment and discharge it. The payment therefore, which the defendants alleged in their answer, and offered to prove at the trial, would have been no defence to this action, unless the execution creditor (this plaintiff) had previously authorized the officer to receive it, or had afterwards accepted the money from him. But the defendants did not, in their answer, allege such authority; nor did they offer to prove it at the trial.
The declaration in this case was defective, as has been repeatedly decided, because it did not aver that the recognizance was returned to the court of common pleas, and there made a record. But the objection to the declaration comes too late. It was not made at the trial. And after verdict it must be presumed— as the exceptions do not show the contrary — that the recognizance, which was produced in evidence, was shown to have been returned and made a record of the court, or that the defendants did not object to its admission in evidence. On this point the present case is essentially different from those of Tarbell v. Gray, 4 Gray, 444, and Patterson v. Goldsmith, 9 Gray, 258. In each of those cases, not only was there no averment in the declaration, nor any admission in the answer, that the recognizance was of record, but it also appeared affirmatively that it was not proved, at the trial, that it was of record.
Exceptions overruled.