Commonwealth v. Schaeffer ( 1840 )

The opinion of the court was delivered by

Rogers, J.

The declaration, although filed after the rendition of the judgment, is part of the record, and for that reason was admissible in evidence. Whether it was filed without or with the leave of the court, nunc pro tupe, no where appears, nor can it be shown in a collateral proceeding. If, as has been suggested, the declaration was filed in vacation, without leave, the proper course is to amend the record, but without an amendment, the court are not justified in regarding it as a nullity. Hoffman v. Coster.

The evidence is pertinent to the issue, as it removes all doubt that the judgment was rendered on the recognizance; this becomes necessary, as the original action is debt, and not a scire facias, which sets forth the recognizance.

We are of opinion that the court erred in rejecting the testimony contained in the second bill. The suit is a scire facias for the use of the executors of Wenrich, to recover the interest of Frederick A. M’Connell and his wife, who was the daughter of John Schaeffer. Testimony had been given that an inquisition was had on the estate of the intestate; that John Schaeffer the son had taken part of the property at the appraisement, and that he had entered into a recognizance to pay the heirs, &e., of whom M’Connell’s wife Was one, their several shares and purparts of the valuation. The evidence was offered to prove, (and for this purpose it was competent,) that the interest of the wife had been assigned to John Wen-rich, of whom the plaintiffs were the executors.

The judgment by default, in the original suit, was rendered without a declaration, and although irregular, and therefore not to be commended, yet is a practice which has been pursued in some parts of the state to some extent, and we are not prepared to say that in all cases the judgment would be reversed for that defect. The irregularity may be cured by a declaration subsequently filed, and without doubt the judgment, which is for the penalty, is good, until reversed on a writ of error. Whether the court of common pleas will allow the record to be amended, may depend on a variety of circumstances, of which they, from the nature of things, are most competent to decide.

The original suit is brought to obtain a cautionary judgment, and in this proceeding it was not usual to bring in the terre tenant; this is done on the scire facias. But here a different proceeding was had.' The suit is against Schaeffer, with notice to the terre tenant, without naming him. The sheriff -returns scire feci, and a judgment is taken generally. This must be regarded as a judgment against Schaeffer alone. The scire facias is against John Schaeffer, with notice to Hannah Miller, and in this proceeding she can come in and defend, pro interesse suo.

' Although the bond is dated after the recognizance, and is given to Frederick A. M’Connell, without joining his wife, a practice peculiar to the county of Berks, yet as it is conditioned for the payment of the sum due on the recognizance, after the death of the widow, there is some reason to believe it is intended to secure the payment of her share of her father’s estate. A possession of this evidence of debt may be some proof that it remains unpaid, which is another reason for admitting it and the various assignments in evidence.

Judgment reversed, and a venire de novo awarded.