90 Pa. 363 | Pa. | 1879
delivered the opinion of the court,
Whenever it shall appear that a mistake or omission has been made in the name or names of any party, the court is authorized, by Act of May 4th 1862, Pamph. L. 574, in any stage of the proceedings, to permit amendments. Statutes relating to amendments are liberally construed in furtherance of trial upon the merits. The evidence tended to show and the jury found that there was a lease signed by Householder, Spangler and Eidler. As between themselves, Householder was principal and Spangler and Eidler his sureties, and though Hershey had knowledge of that relation, they were jointly liable to him. The summons against Spangler was returned, “not found.” Householder did not appear, and'judgment ought to have been entered against him in default; but he does not complain, and the irregularity did no injury to Eidler. Proofs, verdict and judgment against Eidler were same as if the jury had been sworn as to him alone and he is not hurt by a joint-debtor being concluded with him. Besides, he did not object, perhaps could not, to the jury being sworn as to both. The first four and last two assignments are not sustained.
It has repeatedly been ruled that the surety shall be exonerated, only when the payee has refused to bring suit, after a positive request and explicit declaration by the surety that he would otherwise hold himself discharged: Erie Bank v. Gibson, 1 Watts 143. The notice as proved came far short. Moreover, it was given before the debt had become due, and for this cause, had it been complete in substance and form, it would not avail to" discharge the surety: Hellen v. Crawford, 8 Wright 105; Conrad v. Foy, 18 P. F. Smith 381. In the latter case it was said that notice ought in justice to be in writing and in the most explicit terms; and this has been made requisite by the Act of May 14th 1874, which, however, does not affect transactions prior to January 1st 1875.-No foundation was laid for the testimony set forth in the fifth assignment.
The plea of nil debet puts in issue the existence of the debt claimed, and anything may be given in evidence under it, which shows there is nothing due at the time of pleading, as payment, release or other matter in discharge. Formerly this rule was in force in England and still is in Pennsylvania. In a late case, Brubaker v. Taylor, 26 P. F. Smith 83, the present chief justice, referring to a portion of the evidence, said it was admissible under the plea of nil debet, because “ it tended to show there was no existing debt, whether it had been discharged by payment, release
Judgment reversed, and a venire facias de novo awarded.