¶1A material condition, of which the appellant ought to have had the advantage, was left out of his recognizance; and he therefore had his appeal on terms less advantageous than the law allowed it to him. Performance of a condition not mentioned in the instrument, could certainly not have been pleaded in defeasance of it; for to say that the effect of the recognizance is to be taken as it was intended to be by the law, would be to treat its actual form as immaterial in all cases. What the contract was, can be known but by the writing which is the evidence of it; and it has always been held that a recognizance thus taken is void, as an unauthorized stipulation. But it is said the defect ought to have been taken advantage of by pleading and oyer. It was, however, put directly in issue, that there was no such recognizance as that contained in the scire facias; and although it may have been error to try the plea of ml tiel record by a jury, that could not cure a defect in the opinion of the court as to the legal effect of the instrument.
¶2Judgment reversed.