Morrison v. Moreland
| Decision Date | 26 October 1826 |
| Citation | 15 Serg. & Rawle 61 |
| Parties | MORRISON v. MORELAND. |
| Court | Pennsylvania Supreme Court |
IN ERROR.
A declaration stating a cause of action, though informally drawn, is cured by verdict.
A set-off can only be of a payment made before suit brought but if the plaintiff direct the defendant to make a payment and agree it shall be a set-off, the courts, under their equitable jurisdiction, will allow it.[a]
A levy by a constable on defendant's goods, for a debt of the plaintiff, in which he was bail, removed by the creditor, and the goods released, does not constitute a set-off.
A paper will not be allowed to go to the jury, containing a statement of items, of some of which there is no proof.[b]
The president of the court of common pleas is not bound to file his reasons in writing for rejecting evidence.
Competency of evidence.
WRIT of error to the Court of Common Pleas of Perry county, in an action on the case brought by John Moreland, the defendant in error and plaintiff below, against James Morrison, the plaintiff in error and defendant below, in which there were a verdict and judgment in that court for the plaintiff.
The declaration complained that James Morrison, on the 14th day of May 1818, at the said county of Perry, in consideration that the said John Moreland, at the request of the said James, by a certain writing, under the said John Moreland's hand, had assigned to the said James Morrison a certain bond debt of $400, in the penalty of $800, due to the said John Moreland from one Thomas Craighead, promised the plaintiff to pay him $400 on the said 14th day of May 1818; and the said John averred, that trusting to said James's promise, at his request, he the said John did assign said bond debt to the said James, and the said James promised to pay the aforesaid. Yet the said James, though often requested, hath not paid the said sum.
Errors were now assigned by the plaintiff in error in the declaration, and in the opinion of the court below on several matters, and were argued by Alexander, for the plaintiff in error, and Penrose, contra.
To the decisions of the court, at the trial of this cause, several bills of exception were taken, and in this court errors were assigned up to the number of nine.
The first error here is to the declaration of the plaintiff. John Moreland, the plaintiff below, had been the owner of a bond on Craighead; this he assigned to James Morrison the defendant below; the bond was for $800, conditioned to pay $400. The parties would seem to have placed great confidence in each other, or to have been unacquainted with the forms of business; for Morrison when he received the bond, with the assignment, barely engaged to pay Moreland $400 for it, but gave no memorandum to evidence that he had received it, or that he was to pay anything for it. The statement or declaration of the plaintiff set out the transfer of the bond by Moreland to Morrison, and the amount due on it, & c but omitted to give the date of the bond, and was in other respects rather deficient in form. No objection, however, was taken in the court below to this narr., nor was any of the evidence objected to, because not applicable to the plaintiff's declaration; but after a tedious trial on the merits, this court is asked to set aside the whole, and send the parties to begin anew, on account of the alleged defect of this declaration.
Our act of 1806 provides, that even during a trial, a declaration may be amended, on certain conditions and under certain restrictions. This act does not, however, repeal any of the statutes of jeofails, or make the omission to amend error, or prevent a verdict from curing whatever was cured by a verdict, before the passing of the act. It has, however perhaps, introduced a practice, totally inconsistent with the spirit and intention which actuated the legislature of the state who enacted it. The defendant carefully avoids objecting to any defect in the declaration in the court of common pleas; for he knows the plaintiff would be permitted to, and would amend; after taking his chance with the jury he does not move in arrest of judgment, but he takes his writ of error, and asks this court to reverse, in direct opposition to the whole spirit of the law; and in my opinion, to what ought to be and is the object of courts of justice--which is, to hear the matter in dispute, and do justice between the parties. This law has been spoken of as tending to destroy all form in legal proceedings; if it has this effect, it is not the fault of the law; for whenever the defendant objects to the narr., or the plaintiff to the plea, the one or the other must be amended; and if the amendment is a surprise on the other party, and occasions the cause to be continued a term, the amendment is on paying costs of that term at least. It is, then, always in the power of the party to...
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