Marshall v. Gougler ex rel. Gougler
Supreme Court of Pennsylvania
• This was a writ of error to the Court of Common Pleas of Union county. It was an action of debt on a single bill, brought by William Gougler, for the use of George Gougler, plaintiff below, against Ptter Marshall and Sally Marshall, defendants below, in which the sheriff returned “summoned,” but an appearance was entered for Sally Marshall only, who pleaded non assumpsit and payment, and the plaintiff replied non solvit and issue.
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• This was a writ of error to the Court of Common Pleas of Union county. It was an action of debt on a single bill, brought by William Gougler, for the use of George Gougler, plaintiff below, against Ptter Marshall and Sally Marshall, defendants below, in which the sheriff returned “summoned,” but an appearance was entered for Sally Marshall only, who pleaded non assumpsit and payment, and the plaintiff replied non solvit and issue. The single bill was described in the statement to be dated the 7th May, 1817, and to have been signed and scaled by the defendants, by which, they or either of…
1Opinion of the Court
*167The opinion of the court was delivered by
Duncan, J.
The plea of non assumpsit to an action of debt on a sealed instrument, is a novelty. The issue was immaterial. The plaintiff in error, denying the instrument, should have pleaded non est factum. No exception has been made to the judgment on this ground, but as the cause will be sent back, it will be well for the parties to rectify the pleading.
If the execution went out against Peter Marshall, this would be erroneous; but the error in the execution could not affect the judgment. If both were summoned, and only one appeared, and pleaded to the…
2Cases cited1 opinion
- Moore v. Lessee of BickhamSupreme Court of Pennsylvania · 1811
3Cited by2 opinions
- Commonwealth v. BrooksSupreme Court of Pennsylvania · 1986
- Beary v. HainesSupreme Court of Pennsylvania · 1839