5 Rawle 175 | Pa. | 1835
The opinion of the court was delivered by
By the act of the 21st of March, 1806, sec. 6, “ the defendant may alter his plea or defence on or before the trial of the cause.” As this cause was open for trial when the additional plea was filed, it fell within the words of the act of assembly. The court below supposed they were restricted by the former judgment of this court, reversing the first judgment, and remanding the cause, with
In some instances, a judgment on a writ of error that a plea demurred to is defective, is final. But when there is another plea, and the cause is remanded for trial on that plea, the case stands in the court below subject to the provisions of the act of assembly, and the defendant may alter his defence on or before the trial, as in other cases. To be sure, a plea overruled by this court is not to be put in again. But a new and different plea is admissible.
The new plea, however, is itself objected to as defective, in not stating that the question of the payment of the bond on which this suit is brought, was a matter in variance. I am inclined to think the averments in it sufficient. See 4 Rawle, 304. All that is required in a plea in bar is certainty to a common intent. But this it is admitted, was not the ground on which the court below struck off the plea; and.I feel averse to entertain objections started for the first time in this court, when the party has had the opportunity to make them below, and has not done so. Great injustice may be done by it. If the court below erred in the grounds on which they decided, the defendants ought to be restored to the position they
Judgment reversed, and venire facias de novo awarded.