Abbott v. Lyon

4 Watts & Serg. 38

• Court: Supreme Court of Pennsylvania
• Decided: July 15, 1842
• Status: Published

Opinion

Per Curiam.

— Whatever might have been the effect of the recognizance in evidence on an objection to it raised by the pleadings, it is sufficient that the existence of an unexceptionable one is averred in the scire facias, and admitted by the plea of payment. To maintain the issue formed by this plea, it was the defendant’s business to begin; and as it was unnecessary for the plaintiff to show any recognizance in evidence, advantage could not be taken of the variance between the actual one and that set out in the scire facias. Had the cause of action been truly stated, the question of its sufficiency might have been raised by demurrer; but being untruly stated, the same thing might have been done by nul tiel record: but as the defendant has confessed the existence of a valid recognizance, and restricted his defence to the plea of payment, the effect of the actual recognizance was not in issue.

Judgment affirmed.