Hardy v. Watts , 22 Pa. 33 ( 1853 )

The opinion of the Court was delivered, September 22, by

Lewis, J.

This is a case stated in an action of debt upon what is alleged to be a recognisance of bail on appeal. It is stated, as part of the case, that “ the only question raised here is, whether the recognisance or obligation above stated is sufficient to hold the defendant liable.” On this case, thus stated, no question can be raised in regard to the form of the action, or the variance between the proof and allegation. Questions of that kind have generally so little to do with the merits, that we have repeatedly decided, in several recent cases, that a variance between the allegations and the evidence cannot be taken notice of here under a general instruction that the plaintiff is, or is not, entitled to recover. To enable a party to raise the question of variance he must make the point specifically in the court below. So that, if the defendant is liable on the instrument set forth in the declaration, it is not material now whether it be called a “recognisance” or an “ obligation.” A liability in either form, seems distinctly to be contemplated in the case stated, as sufficient to entitle the plaintiff to judgment.

But we think, under the circumstances of the case, that the instrument is good as a recognisance. It is a debt acknowledged of record. It was taken by a magistrate of competent jurisdiction in the regular course of judicial proceedings before him. The defendant acknowledges himself to be absolutely bound as bail, and then states the condition in substantial compliance with the terms of the law. He has, by entering into this obligation, secured for the defendant in the original proceeding, the advantages of a trial on an appeal. He has succeeded in putting the plaintiff to the expense of a second trial to establish his right, and has delayed him in obtaining what is justly his due. After all this, it would be grossly unjust to permit him to avoid his own engagement upon record, by the technical objection that no penal sum was stated in the instrument. This defect is one of mere form, in a recognisance taken on an appeal. The condition specifies the measure of liability, and in this case it contains everything required by the statute. Judgment affirmed.