Citation Numbers: 7 Pa. 281
Judges: Rogers
Filed Date: 1/22/1847
Status: Precedential
Modified Date: 2/17/2022
The plaintiff declared for money had and received, and on an account stated. Pleas, non assumpsit; statute of limitations, account stated, absque hoe, a promise within six years. Replication, merchants’ accounts. Rejoinder, not merchants’ accounts; and on this, issue was joined. The principal issue on which the cause was tried, and to which the charge was directed, was merchants’ accounts. In the charge we perceive nothing wrong. The objection on which reliance is placed, is that
The plaintiff also contends the defendants were beyond seas, and that- there was a fraudulent concealment of the fact that the duties were paid in depreciated paper, and not in specie. But the answer is, that the only issue is merchants’ accounts; that if the plaintiffs intended to rely on these allegations, they should have been specially replied. That in order to prevent the operation of the act of limitations, there must be a special replication, is ruled in Clark v. Hougham, 2 Barn. & Cress. 149, (9 E. C. L. R.;) 3 P. Wms. 144; and Brown v. Agnew, 6 Watts & Serg. 238. That the defendants were beyond seas must be specially alleged, is also plain. As the pleadings now stand, the defendant has had no opportunity of contesting the fact that the parties, or one of them, had returned. It cannot be permitted that the cause should be tried on one issue in the lower court, and on a different issue in this court. The charge of the court is so full on the principal question, that I do not deem it necessary to repeat that which has been there well said.
As this view of the case presents a fiat bar, it would be a waste of time to examine the questions arising on the bills of exception. The evidence there referred to has no bearing on the issue arising on the act of limitation. The result will be precisely the same,
Judgment affirmed.