Beale v. Commonwealth ex rel. Marks
Supreme Court of Pennsylvania
IN ERROR. Writ of error to the Court of Common Pleas of Mifflin county. Debt in the court below on recognizance against the plaintiffs in error, executors of TV. Beale, one of the sureties of T. Beale, sheriff of that county. To the declaration on the recognizance the defendants had pleaded payment, with leave to give the special matter in evidence; and issue was joined thereon.
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IN ERROR. Writ of error to the Court of Common Pleas of Mifflin county. Debt in the court below on recognizance against the plaintiffs in error, executors of TV. Beale, one of the sureties of T. Beale, sheriff of that county. To the declaration on the recognizance the defendants had pleaded payment, with leave to give the special matter in evidence; and issue was joined thereon. Afterwards, on application of the plaintiff,the court below granted leave to file a new declaration, and withdraw the former one. A new narr. was filed, but the former was not withdrawn. It did not appear that to the…
1ConcurrenceRogers, J.
I cannot concur with the affirmance of this judg*152ment. The error alleged, is the want of an averment of a judgment; and this, I believe, has always been held in Pennsylvania, and in every other country which is governed by the principles of the common law, to be a fatal objection to a declaration.
A declaration must allege every circumstance necessary to the support of the action. 1 Chitty, 190, 185. The plaintiff must show himself entitled to the money, which can only be done by giving in evidence a judgment on which th e fieri facias has been issued. This, it will be observed, is a suit…
2Cases cited2 opinions
- Zerger v. SailerSupreme Court of Pennsylvania · 1813
- Hoover v. GonzalusSupreme Court of Pennsylvania · 1824