Parkinson v. City of Parker , 1878 Pa. LEXIS 248 ( 1877 )

Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

This action of debt was upon a bond, executed by a municipal corporation and prima facie regular on its face. The only question is, whether the court was right in entering judgment of non-suit, after the bond had been given in evidence in connection with other testimony, introduced by the plaintiff. The pleas were 7iil debet, want of consideration, set off, and specially, that the consideration of the bond was a certain overdue and unpaid note, executed by the officers of The Parker’s Landing and Lawrenceburg Water Company. The 65th rule of the Common Pleas provides, that “ in debt on specialty and covenant, the plea of non est factum shall operate as a denial of the execution of the instrument sued on, in point of fact only; and all other matters, including those which make the instrument void or voidable in law, must be specially pleaded, or be particularly set forth in a specification filed before or with the plea of the general issue.” Under this rule, as well as according to general practice, nil debed was not a good plea, and if a demurrer had been interposed it would have been declared bad; but, inasmuch as the plaintiff chose to go to trial without objection, it could not be treated as a nullity. The greatest advantage that the defendant could claim was, that it let him into any defence that he might be able to prove. It did not, however, impose on the plaintiff the onus of proving that the bond was executed and delivered by the borough for whose debts the corporation defendatit was made liable by the terms of its charter. The pleading must be considered as admitting the execution of the bond, and the plaintiff had a right to read it in evidence to the jury: 1 Chit. Pl., 6th ed., 518, 519; 1 Tr. & H. Pract. 458; Zeigler v. Sprenkle, 7 W. & S. 179, and authorities there cited. Having given in evidence the record of the Court of Quarter Sessions, incorporating the borough of Lawrenceburg, the charter of the city defendant and the bond executed by the borough under its corporate seal, he had a prima facie case. As remarked by Chief Justice Gtbson, in The Berks and Dauphin Turnpike v. Myers, 6 S. & R. 16, “ the seal itself was prima facie evidence that the contract had been duly entered into by the corporation.” The right to borrow money within the prescribed limits and issue certificates therefor, bearing interest, was conferred by the general borough law; and the fact that the bond in this case calls for eight per cent, interest does not invalidate the obligation. It is only void as to the excess over the legal rate of interest. The power, says Mr. Justice Strong, in Commonwealth v. Pittsburgh, 5 Wright 284, “to execute and issue bonds, contracts and other certificates of indebtedness, belongs to all corporations, public as well as private, and is inseparable from their existence. It is for this they hold a common seal. Ho one will doubt that, for a legal and authorized debt, a municipal corporation might give its bond under its general corporate powers. If a bond given by such an obligor be void, it is not because of the form of instrument nor because general corporate powers do not warrant giving bonds, but because the debt for which the bond has been given was created without authority, against law or without law.” Whether the bond in controversy was issued without consideration or the debt for which it was given “ was created without authority, against law. or without law,” are questions which might have arisen if the defence had been developed and such testimony introduced as would have been admissible under the pleadings; but none of these questions are now before us. It is sufficient to say that when the plaintiff rested, he had a prima facie case, which entitled him to go to the jury; and the learned judge therefore erred in entering the judgment of nonsuit.

Judgment reversed and a procedendo awarded.