7 Pa. 492 | Pa. | 1848
This cause was laid before the court at its last consultation, 9th June inst., and decided in favour of the defendant in error. The case presents imposing claims on behalf of the defendant in error, so far as the merits are disclosed on the record; and the plaintiff in error seeks to overturn the judgment mainly upon error in the pleadings. That the debt claimed belonged to the estate of Abraham Barker, is clear from the bond itself, for it is distinctly so declared in the premises of the instrument. The engagement, however, is to pay to those legally entitled to the division of the said estate. It is probable that the parties contemplated, or
In the case of Wilson v. Jamison, decided at Pittsburgh at the last term, (ante, 126,) it was determined that an amendment of the narr. will be presumed in a court of error to have been made with the assent of the defendant, unless objection appears to have been made either by the record of the cause or by bill of exceptions. It is painful to us when gentlemen of such high character do not agree on any matter about the progression of a cause; but we can look only to the record, except by admission and agreement of the parties. No objection appears to have been taken on the record, or by bill of exception. It is contended, however, that the superadded counts are incompatible with the first count; but we perceive no such incompatibility. It has been often ruled that debt on specialty and counts on a simple contract may be joined: Van Deusen v. Blum, 18 Pick. 229; Eib v. Pindall, 5 Leigh, 109. The plea and the judgment may be the same, and, '
In relation to the error assigned, as to the statute of limitation, this court is of opinion that it ought not and cannot be permitted to disturb the judgment. The court do not utter a word in relation to the statute or its effect in the cause; and they were not re-quested to instruct the jury on that subject by the defendant. It has been so often determined by this court, that the mere omission to charge the jury upon a point that may legitimately exist in the pleadings and evidence, unless requested to do so, is not error, that I deem it altogether unnecessary to refer to cases on the subject. I may add, that I never saw, in the Court of Nisi Prius, any book or trial list furnished to the court, on which the pleas were entered ; nor were the papers filed in the cause ever furnished to the court, when I was sitting there, unless specially called for. So that it follows not, from the plea being on the record, that the judge knew any thing of it. But, if he had known that it was there, unless insisted on at the trial, and his attention called to it by a request to instruct 'the jury on the subject, we cannot say there was error, because we do not know what the testimony was in
There have been two verdicts for the plaintiff on the merits. The last before a judge of eminent ability and wisdom, accumulated by the experience of nearly half a century. We incline not to disturb the verdict, which seems to have had his full approbation, as he overruled the motion for a new trial, if we can sustain it. We think we can do so without violating the law. Exceptions, as to the pleadings, are not to be favoured beyond decided cases after a full hearing on the merits.
Judgment affirmed.