1 Foster 389 | Pa. | 1873
The opinion of the court was delivered, November 21st 1873, by
The first assignment of error is, that the court below refused to allow the defendant to plead “ not guilty” as well as justification, and in ordering the defendant to withdraw the plea of “ not guilty.” The ground upon which this order was made appears to have been that the pleas were inconsistent. Under the statute of 4 Anne, c. 16, sec. 4, Roberts’s Digest 42, which first permitted a defendant, with the leave of the court, to plead as many several matters as he should think necessary for his defence — it was the practice at first for the court to refuse leave when the proposed pleas were inconsistent, but in modern practice such pleas, notwithstanding the apparent repugnancy betAveen them, are permitted: 1 Troubat & Halv, part 1, p. 470. Thus, to go no further, what seems to be more inconsistent than to an action upon a bond to plead non est factum and payment — to deny the execution of the bond by the defendant, and yet to allege that
Nor can we see that the case is helped by the rule of the court below, relied on by the defendant in error. That rule was evidently intended to abolish the loose mode of pleading “ not guilty, with leave to justify,” which had been condemned by this court in Kerlin v. Heacock, and to compel a defendant to set out in a formal plea of justification what matter he intended to rely on as such. That, indeed, was an action of trespass de bonis asportatis ; but the same reason applies in libel and slander. The defendant is entitled to have the matter formally spread upon the record— the accusation which he may be called on to meet, if it be of an indictable offence.
Upon the state of the pleadings, after the withdrawal of the plea of not guilty, the second and fourth assignments cannot be sustained. The third assignment is to the refusal of the court to award a peremptory nonsuit. If it was an error it is clearly not lv viewable here.
Judgment reversed, and venire facias de novo awarded.