Booth v. Hall

Mason, J., delivered the opinion of this court. In this case the plaintiff sued and declared in debt, and the defendant pleaded -non assumpsit. Thereupon the counsel entered into the following agreement, to wit: “It is agreed by and between the undersigned, that all errors in pleading in this case shall be waived, and that any matter or thing may be given ip evidence by either party at the trial thereof, which could be given in evidence if the same had been properly pleaded.” In the progress of the trial, to support his action, the plaintiff offered in evidence a covenant between himself and defendant, to the admissibility of which, under the pleadings and the agreement, the latter objected, and the first question therefore to be settled by this court, and the one which we think will determine the case, is, whether, under the agreement to cure defective pleadings, this testimony was admissible. It was conceded by the plaintiff as settled law, that as all the several instalments or payments provided for by the covenant were not due at the time the suit was instituted, an action of debt would not lie to recover such of them as were due, and that therefore the present action cannot be sustained on this covenant.

To remedy this error, we must give to the agreement the effect of converting the action of debt into one of covenant. We do not think it wilL admit of such a