delivered the opinion of the court,
If we are to decide this cause on strict technical rules, as we have been .earnestly urged to do, in order to show that there is still such a thing as special pleading in Pennsylvania, this judgment must be reversed. The plaintiffs declared upon a joint and several bond, executed by the defendant below -with others, guaranteeing to them good and valid subscriptions to their stock to the amount of $45,000, to be applied in a certain way, and alleging a breach. To this the defendant pleaded in bar that the plaintiffs had sued upon the same bond another of the obligors, one Abraham Mensch, and recovered a judgment thereon for the sum of $74.43, and that said judgment had been paid and satisfied. To this plea the plaintiffs filed a replication, admitting the judgment, but averring that the beneficial plaintiffs — two of whom were co-obligors — bad advanced the money to the railroad company, and that the other solvent obligors had agreed that the bond should stand for the use of the beneficial plaintiffs, to recover thereon their several proportions— the defendant and other obligors assenting and agreeing thereto; that Abraham Mensch also was a party to this agreement, and the judgment pleaded was for so much of his share of this deficiency as remained unpaid. There was no rejoinder to this replication. In strictness then there was no issue to be tried by the jury. Put the parties chose to go to trial on the pleadings without a formal issue, and in this state it is settled that an omission to compel the opposite party to perfect the pleadings beforehand, is a tacit agreement to waive matters of form, and try the cause on the merits, just as going to trial on a short plea is, according to our practice, a waiver of the right to demand a plea in full form; Sauerman v. Weckerly, 17 S. & R. 116 ; Collum v. Andrews, 6 Watts 516. The plaintiffs then could not ask this court to reverse on this ground. And neither can the defendant set up the imperfection or defects of the pleading, all which he has waived by going to trial on the merits. He contends now that the replication was a departure from the declaration. Concede that it was — that it was a new cause of action — he might have demurred on that ground. But who ever heard of a departure in pleading being set up as a defence upon a trial before the jury ? The case stood as if the replication had been the original declaration, and the defendant' having gone to trial without a plea, it was a tacit agreement to try on the merits; in other words, a general traverse. Is it to be doubted then, that, had the declaration been in debt upon a special agreement by the obligors with the beneficial plaintiffs, that each of them should pay their proportion of the deficiency, and alleging what the deficiency was, the judgment against Abraham Mensch, one of those co-obligors, for his proportion of that de*338ficiency, would have been no bar to a recovery against Samuel Stees, another of them ? Yet, that was the issue, as it must be now regarded to have been before the jury. There was certainly evidence which went to support the allegations of fact in the replication. The record of the suit against Mensch showed that it was for what remained unpaid of his share of the deficiency. True, the suit was in the name of the legal plaintiffs, the obligees in the bond; but as the proceeding was commehced before a justice of the peace, that did not determine its true character under the Act of the 20th March 1810, which provides, that on an appeal “ the casé shall be decided on its facts and merits only; and no deficiency of form or substance in the record or proceedings returned, nor any mistake in the form or name of the action shall prejudice either party in the court to which the appeal shall be made: Comfort v. Leland, 3 Whart. 81. We think, therefore, that the learned court below erred in instructing the jury to find for the defendant. As the case goes back for another trial, it will be well for the counsel of the plaintiffs below to have the record put into the proper shape, as the power of amendment now possessed by the courts, both as to the form of the action and the names of the parties, will enable them to do.
Judgment reversed and venire facias de novo awarded.