Kaylor v. Shaffner

• Decision Date: 01 January 1855
• Citation: Kaylor v. Shaffner, 24 Pa. 489 (Pa. 1855)
• Parties: Kaylor versus Shaffner.
• Court: Pennsylvania Supreme Court

24 Pa. 489

Kaylor versus Shaffner.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Dauphin county.

Alricks and Jordan, for plaintiff in error.

Mumma and Herr, for defendant in error.

The opinion of the Court was delivered by LEWIS, C. J.

Shaffner, the defendant in error, became the owner, by assignment, of a note originally given by one Epler to Barbara Bucks. After the death of the latter, Kaylor, her executor, obtained possession of the note and collected the money, without the consent of Shaffner, who thereupon brought this action for money had and received. The suit was originally brought in the name of "Barbara Bucks for the use of George Shaffner, assignee;" but a declaration was filed in the name of "George Shaffner, assignee of Barbara Bucks." Kaylor, without making any objections to the variance between the writ and the declaration, pleaded the general issue, and went to trial. The words "Assignee of Barbara Bucks," in the declaration, were surplusage. Rejecting them as immaterial, the declaration is in the name of the proper party, and the acceptance of it by pleading the general issue was a waiver of the objection to the manner in which the plaintiff's name was stated in the writ.

But the Court, on the trial, permitted an amendment so as to make the docket entry conform to the declaration. This was proper, and was only carrying out the agreement made by the parties when they joined issue on the declaration. It was perfectly right, independent of the Act of 4th May, 1852;...