Thomas v. Mann

28 Pa. 520

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1857
• Status: Published

Opinion

The opinion of the court was delivered by

Woodward, J.

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, lacking nothing, indeed, but the form to make them completely so. It could not he tolerated that a defendant should disclose one ground of defence in his pleas and assume another in his evidence. The object of all pleadings is to develop the real issue to be tried, and hence the rule that the allegata and probata must agree. The rule is just as imperative in respect to notices of special matter as it is when applied to formal special pleas. The adversary must be put into possession of the real grounds of defence to prevent surprise and to promote justice. The duty is enforced in Bedford county by a rule of court which declares in substance that unless a defendant specify the facts intended to be proved he shall give no evidence under the short plea of payment with leave, &c., except what will show actual payment or satisfaction.

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.