
    BRISCOE VS. PHILADELPHIA & BALTIMORE CENTRAL R. R. CO.
    Where suit is brought on one of numerous bonds secured by a mortgage ; the suggestion of the default in payment of interest, should specify whether plaintiff claims to recover the interest only ; or the principal and interest; and if the latter whether there has been default on all the bonds.
    Error to District Court of Philadelphia, No. 9, July Term, 1865.
    The plaintiff brought suit in debt against tüe Philadelphia & Baltimore Central R. R. Co. on certain bonds, which contained a clause as follows: “It being agreéd that when said company shall be in default in the payment of the semi-annual interest as it becomes due on said bonds for three successive times, the same having been demanded according to the tenor thereof, then the principal of all the said bonds, secured by the said mortgage shall be forthwith due and payable, &c.” Plaintiff filed copies of bonds and the coupons and the following suggestion ; “The plaintiff in above case makes the following suggestion of record: The said company defendants have been, and now are in default in the payment of ‘the semi-annual interest as it becomes due on said bonds for three successive times, the same having been demanded according to the tenor thereof, and that therefore the principal of the said bonds is now due and payable.”
    Defendant filed an affidavit of defence, setting forth that the company had mortgaged everything it had and plaintiff was bound to proceed upon the mortgage ; that remedy having been provided, it was exclusive. That no legal demand was made for payment prior to bringing suit; and that the copies filed do not entitle plaintiff to a judgment.
    April 8, 1865, judgment for want of sufficient affidavit of defence for $1,410.41.
    
      F. C. Brewster, Esq., for plaintiff in error,
    argued that to permit plaintiff to .go ahead and sell the property, which was also subject to the claim of the other bondholders was unjust to. them; the proper remedy was to proceed on the mortgage; Bradley vs. Chester Valley Railroad, 12 Casey, 154; Ashurst vs. Montour Iron Company, 11 Casey, 60. The plaintiff is not entitled to defendants oath in opposition to every allegation he may make, but only to such as properly pertain to the case; Imhoff vs. Brown, 6 Casey, 504. He also cites Leibersperger vs. Saving Fund, 6 Casey, 531. The suggestion is defective in form.
   The Supreme Court reversed the decision of the Court below on March 5, 1866, in the following opinion per

Read, J.:

The suggestion filed by the plaintiff’ in order to show what his claim is, is defective and insufficient in not showing whether he claimed only the interest, or the principal and interest, and if the latter then, whether his averment of default in payment of the semi-annual interest is limited only to the bonds sued upon, or extends to all the bonds secured by the mortgage stated in the bonds.

This suggestion being thus defective, we do not know on what grounds the Court below rendered judgment.

And the judgment is therefore reversed and a procedendo awarded.  