Bauer v. Roth
Supreme Court of Pennsylvania
From the record returned on a writ of error to the Court of Common Pleas of Northampton County, it appeared, that to April Term 1821, of that court, Peter Roth and John Roth brought an action of debt on bond against Jacob Bauer, George Keim and Jacob Miller, the plaintiffs in error. The original writ, which was a summons, was served on Bauer and Miller, but not on Keim. The plaintiffs’ attorney filed a declaration, in which he set forth the bond and the condition at large.
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From the record returned on a writ of error to the Court of Common Pleas of Northampton County, it appeared, that to April Term 1821, of that court, Peter Roth and John Roth brought an action of debt on bond against Jacob Bauer, George Keim and Jacob Miller, the plaintiffs in error. The original writ, which was a summons, was served on Bauer and Miller, but not on Keim. The plaintiffs’ attorney filed a declaration, in which he set forth the bond and the condition at large. The condition was as follows: “ Whereas David Musselman, by seven certain obligations bearing even date herewith,…
1Opinion of the Court
The opinion of the court was delivered by
Kennedy, J.
The judgment given on the demurrers was no doubt wrong, but then the error is not such as the defendant below can complain of, for it is in his favour. The court upon being satisfied that the pleas demurred to were not sufficient in law to bar the plaintiffs of their action, ought, instead of a judgment of respondeat ouster, to have given a judgment quod recuperet. The judgment of respondeat ouster is merely interlocutory and never given either upon a demurrer or trial of a plea in bar. It is confined to a plea in abatement put in before,…
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