Opinion by
Rice, P. J.,
This was an action of assumpsit upon a recognizance of bail taken and acknowledged before a magistrate of the city of Philadelphia conditioned for the appearance of Clarence Meeser “at the next term of the court of oyer and terminer and quarter sessions of the peace for the city and county of Philadelphia to be holden on the first Monday of December, 1899,” etc. The particular charge upon which the defendant was arrested was “conspiracy to procure fraudulent votes, and to violate the election laws of Pennsylvania and procuring fraudulent votes.” The statement alleged: “ And the said recognizance was, on the 21st day of December A. D. 1899, adjudged and decreed to be forfeited (as will more fully appear by reference to the records in the office of the clerk of the said court) and the penalty thereof became due and payable and has not been paid.” Judgment was entered for want of a sufficient affidavit of defense.
1. Counsel for appellant do not claim that, under the laws applicable to Philadelphia and the rules of the court below, an action of assumpsit will not lie in that court, nor that an affidavit of defense is not required to prevent judgment in a proper case. Their first contention is, that the statement does not contain a particular reference to the alleged record sued on, and is, therefore, insufficient to support the judgment. As the statement contains an exact copy of the recognizance sued on and a reference to the place where the record of the forfeiture of it may be found, namely, “ the office of the clerk of said court,” the reasonable construction of the averment is, that the record sued on was in its proper place in the records kept by the clerk of the courts of quarter sessions, and oyer and terminer. The record was sufficiently identified and the place where it cotild be found was sufficiently designated to inform the de[7]*7feñdants of what they weré called upon to meet and to bar a second recovery foi' thé same cause of action. It would seem from the last averment of the affidavit of defense that the appellant had no difficulty in determining what Court was referred to in the statement. But aside from any implied concession on his part, we are of opinion the statement was sufficiently explicit to call for an affidavit of defense.
2. The second point urged by the appellant is; that the recognizance was void, because conditioned for the performance of an impossible act, namely, to appear at the next term of “ the court Of Oyer and terminer and quarter sessions of the peace,” a court whieh has no existence. The fact that the offense with which he was charged might be tried in either court made it proper to bind the aécused tó appear at the liext term of the courts of oyer ánd terminer and general jail delivery and quarter sessions of the peace. And, while the form of the ffeco'g'hizance is inaccurate, in that the singular instead of tlie plural noun was used, it is not so inaccurate ás tú admit of any doubt that this was what waS meant, or that the accused and his surety so understood the obligation. The objection has little, if any more force than would an objection that the full title of each court was not stated. The suggestion that it was impossible for the defendant to appear at two courts at the same timé is equally lacking in merit, because the terms of both courts begin and end at thé same time and are held in the same place, the judge presiding sitting as a judge of the court Of oyer arid terminer or as a judge of the court of quarter sessions according to the nature of the case called for trial. It seems to hs that the case is plainly distinguishable from Commonwealth v. Bolton, 1 S. & R. 328.
3. The third and fourth points insisted upon by the appellant’s eohnsel may be considered together. Before stating the question we deem it important to call attention to certain facts, which, as wé view thé affidavit of defehse, milst be taken ás admitted. The statement avers, (a) that the íéeognizanee was adjudged and decreed to be forfeited oh December 2L 1899, and (5) that this appears by the records in thé office of the clerk of thé eoürt. Neither of these allegations is denied ill the affidavit Of defense, and as to the first there was no attempt at denial. True, the affidavit contains án averment that [8]*8tliere was no such record on or prior to January 12,1900, the date written at the foot of the statement, but this is not a denial of the averment that there was such a record on January 13, 1900, the date on which the .writ issued and the statement was filed, this being the date of which, presumably, the statement speaks. The omission of the clerk to make a record of the forfeiture on the very date it was adjudged would not be a fatal objection to the right of recovery; it could be corrected by amendment, even after suit brought on the recognizance, as was done in Rhodes v. Commonwealth, 15 Pa. 272. Upon this question Chief Justice Gibson said: “ The forfeiture of the recognizance being complete, by the failure to bring forth the body, could not be affected by the misprision of the clerk in omitting to record it. The record is not the forfeiture, .but the evidence of it; and a court has certainly power to supply it nunc pro tune.” Therefore, in view of the undenied averments of the statement, we are justified in assuming that the recognizance was adjudged to be forfeited on December 21, 1899, and that at the time the writ in this case issued the record showed it. We remark, in addition, that there is indorsed on the recognizance, sent up to us as part of the record, this entry: “ Dec. 21/99. Recog. of deft, and surety forfeited.” That we have a right to look at this part of the record in determining the question raised by the appeal we think is plain. Section 4 of the Act of April 22, 1846, P. L. 477, provides that all recognizance of bail in criminal cases which are forfeited “ before the court of oyer and terminer and general jail delivery and quarter sessions of the peace ” in Philadelphia. . . . shall be sued and prosecuted in the said court and in no other court.” At common law the remedy was by scire facias or action of debt. As instances where, under the statute giving the quarter sessions jurisdiction, the proceeding has been by action of debt, we refer to Harres v. Commonwealth, 35 Pa. 416, where the validity of the rule of .the quarter sessions requiring an affidavit of defense was sustained: Fox v. Commonwealth, 81* Pa. 511; Commonwealth v. Flomenhaft, 3 Pa. Superior Ct. 566; Commonwealth v. Duffy, 11 Phila. 378. Since the procedure act of 1887, the action of assumpsit takes the place of the action of debt. But whether the process be scire facias or summons, “ it is no further [9]*9to be reckoned as an original suit, than that the defendant has a right to plead to it. It is founded on the recognizance, partakes of its nature, must be considered as flowing from it, and, when final judgment is given, the whole must be taken as one record: ” Commonwealth v. Phila. County Commissioners, 8 S. & R. 151.
But it is urged that the court had no jurisdiction to adjudge the forfeiture because the recognizance was not of record. The averment of the affidavit of defense relative to this matter is that the magistrate “ did in fact return the same to the district attorney of said county and the recognizance was not returned to the clerk of said court or filed in said court prior to said forfeiture, and not until suit was brought thereon.” It is to be observed that it is not alleged that the recognizance, which, as we have said, is sent up as part of the record, was not actually in court at the time the forfeiture was declared and the words, “Dec. 21/99.
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Opinion by
Rice, P. J.,
This was an action of assumpsit upon a recognizance of bail taken and acknowledged before a magistrate of the city of Philadelphia conditioned for the appearance of Clarence Meeser “at the next term of the court of oyer and terminer and quarter sessions of the peace for the city and county of Philadelphia to be holden on the first Monday of December, 1899,” etc. The particular charge upon which the defendant was arrested was “conspiracy to procure fraudulent votes, and to violate the election laws of Pennsylvania and procuring fraudulent votes.” The statement alleged: “ And the said recognizance was, on the 21st day of December A. D. 1899, adjudged and decreed to be forfeited (as will more fully appear by reference to the records in the office of the clerk of the said court) and the penalty thereof became due and payable and has not been paid.” Judgment was entered for want of a sufficient affidavit of defense.
1. Counsel for appellant do not claim that, under the laws applicable to Philadelphia and the rules of the court below, an action of assumpsit will not lie in that court, nor that an affidavit of defense is not required to prevent judgment in a proper case. Their first contention is, that the statement does not contain a particular reference to the alleged record sued on, and is, therefore, insufficient to support the judgment. As the statement contains an exact copy of the recognizance sued on and a reference to the place where the record of the forfeiture of it may be found, namely, “ the office of the clerk of said court,” the reasonable construction of the averment is, that the record sued on was in its proper place in the records kept by the clerk of the courts of quarter sessions, and oyer and terminer. The record was sufficiently identified and the place where it cotild be found was sufficiently designated to inform the de[7]*7feñdants of what they weré called upon to meet and to bar a second recovery foi' thé same cause of action. It would seem from the last averment of the affidavit of defense that the appellant had no difficulty in determining what Court was referred to in the statement. But aside from any implied concession on his part, we are of opinion the statement was sufficiently explicit to call for an affidavit of defense.
2. The second point urged by the appellant is; that the recognizance was void, because conditioned for the performance of an impossible act, namely, to appear at the next term of “ the court Of Oyer and terminer and quarter sessions of the peace,” a court whieh has no existence. The fact that the offense with which he was charged might be tried in either court made it proper to bind the aécused tó appear at the liext term of the courts of oyer ánd terminer and general jail delivery and quarter sessions of the peace. And, while the form of the ffeco'g'hizance is inaccurate, in that the singular instead of tlie plural noun was used, it is not so inaccurate ás tú admit of any doubt that this was what waS meant, or that the accused and his surety so understood the obligation. The objection has little, if any more force than would an objection that the full title of each court was not stated. The suggestion that it was impossible for the defendant to appear at two courts at the same timé is equally lacking in merit, because the terms of both courts begin and end at thé same time and are held in the same place, the judge presiding sitting as a judge of the court Of oyer arid terminer or as a judge of the court of quarter sessions according to the nature of the case called for trial. It seems to hs that the case is plainly distinguishable from Commonwealth v. Bolton, 1 S. & R. 328.
3. The third and fourth points insisted upon by the appellant’s eohnsel may be considered together. Before stating the question we deem it important to call attention to certain facts, which, as wé view thé affidavit of defehse, milst be taken ás admitted. The statement avers, (a) that the íéeognizanee was adjudged and decreed to be forfeited oh December 2L 1899, and (5) that this appears by the records in thé office of the clerk of thé eoürt. Neither of these allegations is denied ill the affidavit Of defense, and as to the first there was no attempt at denial. True, the affidavit contains án averment that [8]*8tliere was no such record on or prior to January 12,1900, the date written at the foot of the statement, but this is not a denial of the averment that there was such a record on January 13, 1900, the date on which the .writ issued and the statement was filed, this being the date of which, presumably, the statement speaks. The omission of the clerk to make a record of the forfeiture on the very date it was adjudged would not be a fatal objection to the right of recovery; it could be corrected by amendment, even after suit brought on the recognizance, as was done in Rhodes v. Commonwealth, 15 Pa. 272. Upon this question Chief Justice Gibson said: “ The forfeiture of the recognizance being complete, by the failure to bring forth the body, could not be affected by the misprision of the clerk in omitting to record it. The record is not the forfeiture, .but the evidence of it; and a court has certainly power to supply it nunc pro tune.” Therefore, in view of the undenied averments of the statement, we are justified in assuming that the recognizance was adjudged to be forfeited on December 21, 1899, and that at the time the writ in this case issued the record showed it. We remark, in addition, that there is indorsed on the recognizance, sent up to us as part of the record, this entry: “ Dec. 21/99. Recog. of deft, and surety forfeited.” That we have a right to look at this part of the record in determining the question raised by the appeal we think is plain. Section 4 of the Act of April 22, 1846, P. L. 477, provides that all recognizance of bail in criminal cases which are forfeited “ before the court of oyer and terminer and general jail delivery and quarter sessions of the peace ” in Philadelphia. . . . shall be sued and prosecuted in the said court and in no other court.” At common law the remedy was by scire facias or action of debt. As instances where, under the statute giving the quarter sessions jurisdiction, the proceeding has been by action of debt, we refer to Harres v. Commonwealth, 35 Pa. 416, where the validity of the rule of .the quarter sessions requiring an affidavit of defense was sustained: Fox v. Commonwealth, 81* Pa. 511; Commonwealth v. Flomenhaft, 3 Pa. Superior Ct. 566; Commonwealth v. Duffy, 11 Phila. 378. Since the procedure act of 1887, the action of assumpsit takes the place of the action of debt. But whether the process be scire facias or summons, “ it is no further [9]*9to be reckoned as an original suit, than that the defendant has a right to plead to it. It is founded on the recognizance, partakes of its nature, must be considered as flowing from it, and, when final judgment is given, the whole must be taken as one record: ” Commonwealth v. Phila. County Commissioners, 8 S. & R. 151.
But it is urged that the court had no jurisdiction to adjudge the forfeiture because the recognizance was not of record. The averment of the affidavit of defense relative to this matter is that the magistrate “ did in fact return the same to the district attorney of said county and the recognizance was not returned to the clerk of said court or filed in said court prior to said forfeiture, and not until suit was brought thereon.” It is to be observed that it is not alleged that the recognizance, which, as we have said, is sent up as part of the record, was not actually in court at the time the forfeiture was declared and the words, “Dec. 21/99. Recog. of deft, and surety forfeited,” indorsed . upon it. What is the presumption in that regard ? Are the averments of the affidavit above quoted sufficient to rebut the presumption that it was actually in court, if in the absence of those averments there would be such presumption ? If not sufficient, was the omission to mark the recognizance filed and to note that fact on the quarter sessions docket (which ought always to be done) such irregularity or defect as would have warranted the court in treating the adjudication of forfeiture as a nullity in an action upon the recognizance ? The general rule, as to what is to be presumed in actions upon forfeited recognizances in criminal cases was thus stated in Fox v. Commonwealth, 81* Pa. 511: “ The entry of the forfeiture of the recognizance stands for proof of all the steps necessary to complete the forfeiture. Hence we must take it for verity that the defendant and his bail were duly called and did not appear' or answer. In courts of justice omnia prsesumuntur rite esse acta.” This rule has been applied in numerous cases amongst which may be mentioned Shriver v. Commonwealth, 2 Rawle, 206, Rhoads v. Commonwealth, 15 Pa. 272, Pierson v. Commonwealth, 3 Gr. 314, Mishler v. Commonwealth, 62 Pa. 55, Foulke v. Commonwealth, 90 Pa. 257, Commonwealth v. Oblender, 135 Pa. 530, Commonwealth v. Basendorf, 153 Pa. 459, and Commonwealth v. Flomenhaft, 3 Pa. Superior Ct. 566. The case of Scully v. Kirkpatrick, [10]*1079 Pa. 324, relied on by the appellant’s counsel, has no application. The point there decided was that proceedings on a warrant of arrest under the act of July 12,1842, are no part of the proceedings in the cause, but merely incidental and collateral thereto ; there was, therefore, no authority for entering a forfeiture of the bond upon the docket of the court of common pleas. Such entry, however formal, is a mere nullity. In the case of Commonwealth v. Bird, 144 Pa. 194, the surety petitioned the court to strike off the absolute forfeiture upon the ground that the recognizance was never filed in the office of the clerk of the e'ourt, but, having come to the hands of the district attorney about the time of the forfeiture, was by him pinned to the justice’s return of the case. It was contended there, as it is here, that there was not a compliance with the provisions of the A'et of May 8, 1854, P. L. 678, and the decision of Júdge Pierce in Commonwealth v. Randall, 8 Phila. 374, was cited insuppdrt of the contention. On appeal from the order discharging the rule to show cause, which was granted on the petition, the proceedings of the quarter sessions were affirmed. Mr; Justice Sterrett who delivered the opinion of the court said: “We have no jurisdiction of the case except on certiorari, and that brings up for review nothing except the record proper.
But if it Werb otherwise, it would profit the appellant nothing ; because, by going outside the record, it would appear that he and others became bail for the appearance, etc., of five defendants, who are now fugitives from justice, and have neither made, nor offered to make restitution for the crime of which they were duly convicted, and that the only ground On which appellant claims relief is a bald technicality, utterly destitute Of merit.” We do not cite this casé as one that controls the decision of the case at bar, but in view of the similarity of the question raised we think it is pertinent. The case most closely resembling the present is Fox v. Commonwealth, supra. Theré, the commonwealth declared on a recognizance “ as by the record of the Said recognizance, remaining in the said court here, more fully appears.” The defendant pleaded nul tiel record, to which the commonwealth replied: “ That there is such record of the said recognizance remaining in the said court, as the said plaintiff hath above in his said declaration in that behalf alleged. And this said plaintiff is ready to vérify by the said record.” [11]*11The court entered judgment for the commonwealth on the plea, and in the Supreme Court this was assigned for error. It would seem from the official report of the case — more fully in the report in 1 W. N. C. 243 — as well as from the arguments of counsel, that it did not appear by an inspection of the docket of of the recognizance itself, that it had ever been marked filed. The contention of the commonwealth’s counsel was that as the record showed that the recognizance had been forfeited, it must have been of record. It was of such a case that the court was speaking when it declared that the entry of the forfeiture of the recognizance stands for proof of all the steps necessary to complete the forfeiture. The court had in mind the very objection raised by the plea; for after referring to the Act of March 30, 1821, 7 Sm. L. 426, requiring the justice “ to make a full and complete return of said recognizance or surety, to the proper court of the city or county having cognizance of the case,” the court said: “We must suppose, therefore, that the transcript was before the court.” We think we do not give too broad an effect to this decision in citing it as authority for our conclusions in the present case, that it is to be presumed that the recognizance was actually before the court when the adjudication of forfeiture was made, and that the omission to mark the recognizance filed and to note that fact on the quarter sessions’ docket was not such an irregularity as would have warranted the court in treating the adjudication as a nullity in an action upon the recognizance. In looking through this record we find evidence of much inattention to these simple and important details which ought to have been attended to, but we find no substantial defect which would warrant a reversal of this judgment. We remark in conclusion that we have based our decision on the record and the presumptions flowing from it. We do not regard the depositions taken on the rule to remit the forfeiture as properly before us on this appeal, therefore we have not considered them. Possibly we might consider the fact that such rule was taken and discharged, but we have not found it necessary to look into that question.
Judgment affirmed.
William D. Porter, J., dissents.