Commonwealth v. Laub , 1 Watts & Serg. 261 ( 1841 )

The opinion of the Court w'as delivered by

Gibson, C. J.

The principal objections to the competency of the bond were, that it was approved by persons styling themselves judges of the Common Pleas, and not of the Quarter Sessions; and that it does not appear to have been taken by the recorder of deeds. It has indeed been argued that the condition of it is not exactly what the law requires, inasmuch as the accountability of the officer is limited by it to moneys receivable by him before a particular day; but a variance between a statutory bond and the requisitions of the law is fatal to it only when the condition would impose a greater burden on him than the law allows, and in this instance his responsibility, if altered, was lessened.

Had the approval of the bond by the judges been in its nature the appropriate business of a Court of Quarter Sessions, or in anywise connected with it, the official style assumed by them in the certificate might have been matter of substance. In the case of Spring Garden Street (4 Rawle 192) the Statute of 1806, which requires the presidents of the Common Pleas, in certain cases, to file their opinions of record, was ruled to be inapplicable to them when sitting with their brethren as a Court of Quarter Sessions; and it cannot be doubted that an indictment appearing by the caption of it to have been found in the Common Pleas, would be quashed for want of jurisdiction. But the Act in question was .not done in any court whatever; aiid being essentially referrible' to the function of no jurisdiction in particular, it is enough to give it authenticity that it was done actually by the persons designated in the statute, by whatever title-. By the constitution, the judges of the Common Pleas are judges also of Oyer and Terminer, Quarter Sessions, and Orphans’ Court; and they sit by virtue of one commission, in which they are styled judges of the Common Pleas. Does it not sufficiently appear, then, that this bond was approved by judges of the Quarter Sessions, styling themselves as they are styled in their commissions and in the constitution ? In Kean v. Franklin, (5 Serg. & Rawle 154) an action was brought on a recognizance to John Joseph Henry, president of the Orphans’ Court; and it was objected that as there was no officer thus styled by the constitution or the laws, the title should have been rejected, and the action brought in the name of judge Hénry’s personal representative; but inasmuch .as an Act to alter the judiciary system then in force had said, “ the judges of the Common Pleas, or any two of them, the president being one, shall comr pose and hold the Orphans’ Court,” it was determined that the president of the Common Pleas was ex-officio president of the Orphans’ Court, and that the recognizance was taken to the officer and not to the man. Is not a judge of the Common Pleas, by the terms of the constitution, ex officio a judge of the Quarter Sessions ? The recognizance might, in. that case, have been taken to the officer indifferently by the one designation or the other; and the judges might in this have styled themselves either as of the Quarter Sessions or the Common Pleas.

Nor is the objection that the bond does not appear to have been taken by the recorder of deeds, better founded. I have no particular recollection of the argument in Dunn v. The Commonwealth; but the reasons of my late brother Duncan for holding even the office copy of such a bond inadmissible as' statutory evidence, seem to be inconclusive. The object of the statute was public convenience in having the bond registered in the particular county before it should be deposited in the office of the auditor general; and, to accomplish this, the recorder of deeds was directed to take it and record it—in short, to attend to the execution and registry of it. That being done, it would matter but little whether it appeared to-have been taken by the recorder or not, especially as its validity, unlike that of a recognizance, does not necessarily require any magisterial sanction. Perhaps too much stress was laid on a particular word; but we wish not to draw the authority of that case into question. The objection went to the competency of the office copy, and .not of the original, for that was conceded. It was conceded also that the original might have been established by common law probf of its execution; and what is the case here ? We find it to have been explicitly agreed at, the trial, that the copy certified by the auditor general should be considered as the original offered with proof of execution by the subscribing witnesses. On the very principle of Dunn v. The Commonwealth, then, it ought to have been received with the certified copies of the defendant’s accounts, which were rejected only because of the supposed incompetency of the bond as a ground for their admittance.

Judgment reversed, and a venire de novo awarded.