Baxter v. Graham
Supreme Court of Pennsylvania
ERROR to the Common Pleas of Alleghany county. This was an action of debt on a bail-bond taken by the sheriff for the appearance of Neal M’llwayne to'answer William Graham, Jun. The action was by William Graham, Jun., assignee of William Leckey, sheriff, against Neal M’llwayne and Henry Baxter. The defendant pleaded non est factum, payment, comperuit ad diem, and three other special pleas in bar; to none of which was there a replication; and the parties went to trial.
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ERROR to the Common Pleas of Alleghany county. This was an action of debt on a bail-bond taken by the sheriff for the appearance of Neal M’llwayne to'answer William Graham, Jun. The action was by William Graham, Jun., assignee of William Leckey, sheriff, against Neal M’llwayne and Henry Baxter. The defendant pleaded non est factum, payment, comperuit ad diem, and three other special pleas in bar; to none of which was there a replication; and the parties went to trial. The plaintiff offered William Leckey, Esq., as a witness to prove the execution of the bond; to which the defendant objected,…
1Opinion of the Court
The opinion of the Court was delivered by
Rogers, J.
The plea of nul tiel record is'no doubt an issue, for the most part, properly triable by the court, and in the absence of proof to the contrary we must intend, it was so tried. The cause was not regularly put to issue, but it has been repeatedly decided, that when the parties go to trial on the merits, it is a waiver of all form. The issues, in fact, were tried by the jury, and we must intend, that before the court entered final judgment, they passed upon the issues at law. There is, therefore, nothing in the first and second errors.
The third…
2Cases cited3 opinions
- Fetterman ex rel. Fetterman v. Plummer's AdministratorSupreme Court of Pennsylvania · 1822
- Gebhart v. ShindleSupreme Court of Pennsylvania · 1824
- Reed ex rel. Miller v. GarvinSupreme Court of Pennsylvania · 1824
3Cited by4 opinions
- Fain v. GarthrightSupreme Court of Georgia · 1848
- Wall's Administrators v. FifeSupreme Court of Pennsylvania · 1861
- Stecker v. ShimerSupreme Court of Pennsylvania · 1840
- Alexander v. TraskSupreme Court of Alabama · 1852