Author: Thomas Sergeant

Publisher:

Published: 2015-07-11

Total Pages: 500

ISBN-13: 9781331180173

Excerpt from Reports of Cases, Vol. 15: Adjudged in the Supreme Court of Pennsylvania; With a General Index, and Table of Cases It appeared on the record, that the plaintiff prayed a writ of retorno habendo, which had been issued. Penrose, for the plaintiff in error. 1. The description is too vague. A lot of sundries means a portion. He has got a judgment for a portion. He can have return only of what he has judgment for. It is is not certain even to a general intent. 1 Chitty PI. 237. Certainty, to a general intent, is that which makes the matter certain without recurring to possible facts, which do not appear. Here there is no certainty, without such recurrence. 2 Wheat. Selwyn, 914, - "divers goods and chattels," insufficient. 2. As to assessing the damages, at the amount of the plaintiff's claim. Here the value of the property was submitted, as the standard; but this was to be estimated by a fictitious standard. Penrod v. Mitchell, (S Serg. & Rawle, 522, ) is precisely this case. Alexander, contra. 1. When facts are equally in the knowledge of both parties, there is not the same necessity for certainty. 6 Cornyn's Dig. Tit. Pleader, C. 36. As to the difference between judgment by default and a demurrer, - here the plaintiff substantially showed a good title; but it is cured by pleading over and verdict. 6 Com. Digest, 63. Pleader, C. 32. Where words not actionable are joined with those that are, the court will intend that the damages are given only for the actionable words. Here there were other goods well described; and some intendment must be made. If the defendant had demurred, the plaintiff would have been entitled to judgment for what is good. 2 Com. 495. Pleading, 3 K. 10. 2. Penrod v. Mitchell, bears out the charge. The value of the property given is the measure. The jury were directed not to go beyond the plaintiff's demand. The opinion of the court, (Tilghman, C. J., absent, ) was delivered by Rogers, J. The defendant has assigned for error, that the description in the declaration, viz. that part of it which spoke of a lot of sundries, was too general. The declaration, in this case, would undoubtedly have been ill on demurrer; but then, upon the error being pointed out, the court under our act of assembly, would have given leave to amend. What would have been the effect of a demurrer, whether the plaintiff would have been entitled to a judgment on that part of the declaration, which is good, it is unnecessary here to determine, 6 Com. Dig. Title Pleader, C. No. 32, Page 63. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.