Bodine v. Commonwealth

1. A .recognisance taken in term time before the ,clerk of the Court of Quarter Sessions for the appearance, at the next Sessions, of a party charged therein with passing counterfeit money, is presumed to have been taken by the direction of the Court; and such presumption is not negatived by the words “ Taken and acknowledged before me” and signed by the clerk. 2. The remedy on such a recognisance may be either by seire facias in the Common Pleas or by action of debt.

Error to the Common Pleas of Venango county. This was a scire facias in the name of The Commonwealth of, Pennsylvania v. Isaac Bodine, on the recognisance of Titus Losey and himself, for the appearance, at the April sessions, 1853, of the Court of Quarter Sessions of Venango County, of Losey, who was charged with passing counterfeit money. Losey was arrested on the second day of the January sessions; and, on motion of his counsel, the case was continued 'till the April sessions. The .docket entry was, inter alia, as follows :— , 29th April, 1853. Jury came into Court, whereupon defendant was called to appear, and not answering, his recognisance was forfeited, Isaac Bodine, the bail, having been called to produce the body of defendant, and not doing so, his recognisance was forfeited ; whereupon the jury was discharged — Per Quriam. 26th January, 1853. Titus Losey and Isaac Bodine, each tent in the sum of eight hundred dollars, conditioned that Titus Losey appear at the next Court of Quarter Sessions, to answer, &c. Taken and acknowledged before me, 26th April, 1853. A. CochraN, Clerk. In the scire facias it was declared, that Losey and Bodine, on the 26th January, 1853, entered into a recognisance, conditioned that the said Titus Losey appear at the next Court of Quarter Sessions, &e., there to answer a charge or indictment against Lo-sey for passing counterfeit money, &c., “which he hath not done.” It was not alleged that the recognisance was forfeited. On the trial the docket entry of the recognisance in the sessions docket was received in evidence, under objection. On the part of the defendant it was offered to prove, that the verdict brought in by the jury was one of “ not guiltyand that it was on file. The offer was overruled. The Court directed a verdict for the plaintiff. It was assigned for error: 1. The Court erred in entering judgment for the Commonwealth on the plea of nul tiel record, as the recognisance was taken by the clerk of the sessions, he having no authority to take bail, bind over, or commit; nor was said clerk authorized to take suob recognisance by the Court; hence, it is void and of no effect. 2. In admitting the docket entry of the Quarter Sessions to be given in evidence by the plaintiff, to support this scire facias. 3. In their charge to the jury, directing a judgment for the Commonwealth, as the writ of scire facias set forth no liability on the part of the defendant, Isaac Bodine. It was alleged that there was no proceeding certified from the Quarter Sessions to support the sci. fa.: 2 Yeates 532, Baker v. Field; 6 Ser. ‡ B. 573-4; 4 Wend. 387; 3 XT. S. Pig. 325. If the docket entry in the Quarter Sessions be a proper foundation for a sci. fa. in the Common Pleas, without an exemplified copy of it being filed in the Common Pleas, it appeared that the recognisance in this case was taken by the clerk, and he had no judicial authority to take it: 3 Karris 273; 7 Barr 109. Also, that it did not appear from the record that the Court directed Losey to enter into recognisance or fixed its amount. It was further alleged, that the Quarter Sessions docket was not admissible in evidence, as it was the record of another Court. That debt was the proper remedy, was cited Oom. Pig. a. 2; Qhit. PI. 100; Saunders on PI. f JEv. 755. 3. The scire facias did not set out any liability on the part of Bodine to do any act, and did not state any forfeiture. The prisoner, in open Court, was ordered to give security; and the recognisance was taken in open Court. The record made by the clerk is only evidence of the recogni-sance and forfeiture, and the Court may direct any improper additions to be struck off: 3 Karris 276. As the Court was in session, the presumption is, that the recognisance was taken by its direction. 2. A recognisance is a matter of record. The process upon it is judicial in its character, and is not to be considered as a suit any further than the defendant may plead to it; and when final judgment is given, the whole is considered as one record: 8 Ser. B. 155; 3 Pallas 475. It has not been the practice in this state to file in the Common Pleas an exemplified copy of the re-cognisance in the sessions in order to support an action of debt; but the docket entry or record from the Quarter Sessions has been admitted in evidence. The record of the recognisance cannot be transferred from the Quarter Sessions so as to become a record of the Common Pleas. The recognisance must be filed or made a record of a Court in order to sustain a suit upon it; but it need not be of the Court where the suit is brought: 4 Wend. 387. An exemplification would only be evidence of tbo record, and tbe record itself is better evidence. 3. The existence of the record was admitted by the plea of payment, and it was not objected to on the ground of variance between the recognisance and scire facias. But there was no material variance; it was not necessary to set out the forfeiture, as the record was not the forfeiture but only the evidence of it: 3 Harris 276.