Kirkner v. Commonwealth

6 Watts & Serg. 557

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1844
• Status: Published

Opinion

The opinion of the Court was delivered by

Sergeant, J.

The first error assigned is that the court erred in declaring that no breach of the recognizance need be set forth in the declaration. This is rather an inference than a declaration of the court. It is undoubtedly true that in declaring on a recognizance containing a condition, the plaintiff ought regularly to set forth the condition and aver the breach of it, in which respect it differs from a suit on a bond with a penalty; for there the plaintiff has his option either to set forth the bond and condition in the narr., and aver a breach of the condition, or he may declare on the obligatory part alone, leaving the defendant to crave oyer of the condition and plead. And the defendant might have taken advantage of the variance here on the trial by objecting on that account; but the declaration, as it now appears, is good. It states an obligation to pay and a refusal, and as there may have been no condition, we are not bound to presume it, where it does not appear and that objection was not taken. The only objection on this head was, that the recognizance offered was a recognizance taken by a Judge of the Common Pleas, while that declared on was a recognizance in the Quarter Sessions, and this was removed by the amendment. The case is very like Crosse v. Porter, (Wittes 18). There the recognizance, as set forth in the declaration, was absolute, and the breach assigned was, that the defendant did not pay the sum mentioned. On demurrer, the court say, “ there may be an absolute recognizance as well as a recognizance with a condition. It does not appear this is a recognizance with condition ; it must be taken to be an absolute one, since no condition is set forth. We admit, that where a condition appears on record it must be set forth in the declaration, because a recognizance and condition make but one record. A breach is plainly assigned, viz. non-payment of the money.” So here there is a breach set out in the declaration ; for it alleges the neglect and refusal of the defendant to pay the money. The assignment of error, then, is not correct.

2. The court had clearly a right to allow the amendment, being, in fact, but a matter of form, and not changing the cause of action.

3. It sufficiently appears in the evidence that the recognizance was taken in the county of Montgomery. It appeared that the endorsement of the habeas corpus on which the recognizance was taken, showed it was taken at the Trappe, which is in the county of Montgomery, and this is intimated by the court in their charge to the jury.

Judgment affirmed.