28 Pa. 520 | Pa. | 1857
The opinion of the court was delivered by
That the learned judge was in error in ruling that notice given by a surety to the counsel of an absentee creditor was insufficient to compel the institution of proceedings against the principal debtor, is proved by what was decided in Wetzel v. Sponsler’s Executors, 6 Harris 460, and is indeed frankly admitted by the counsel of defendant in error. But it is said the defendant was not entitled to prove such notice, because it was not contained in his specification of special matter. And true it is it was not. The notice specified three things, — 1. That Thomas was surety of Crysher. 2. That plaintiff had a good and sufficient lien against Crysher’s real estate, and that he suffered it to expire. 3. That the real estate of Crysher was sold for a sum more than sufficient to pay this debt, and it would have been paid if its lien had been preserved.
Under our system of short pleas these notices of special matter are very important, for they give to plaintiffs the only opportunity that our practice affords them of preparing to meet the defence that is to be relied on. They are in substance special pleas,
Under this rule, as well as upon general principles of sound practice, the defendant was bound to put into his notice of special matter the fact on which his defence rested; and, having failed to do so, the evidence of that fact was properly rejected. The only error upon the record is a wrong reason for a right judgment; but, as we review not reasons but judgments, we find nothing here to correct.
The judgment is affirmed.