Young v. Commonwealth ex rel. Boals , 1813 Pa. LEXIS 69 ( 1813 )

Tilghman C. J.

The first error assigned in this case, is, that .the cause was tried without joining issue on two special pleas put in by the defendants below. It is said in answer to this objection, that the Court would not permit the pleas to ■ be put in, or what is the same thing, they decided that the -plaintiff might go on to trial without replying- to them. Although the act of 21st March 1806, authorizes the defendant to alter his plea or defence at any time on or before the trial, yet it must be understood that this is to be by permission of the Court; otherwise the defendant might harass and evade the plaintiff for ever, by constantly putting in new pleas when the cause was ready for trial, or .even during the trial. But although the Court have a discretion on this subject, yet it is a legal discretion, subject to the review of this Court on a writ of error. When the defendant offers to plead specially, a matter of law necessary for his defence, he should be permitted to do it, because it 'tends to that certainty which is the object of pleadings. It tends also to bring the point before the proper tribunal. If the matter pleaded is demurred to, the Court decide it; if denied, it goes to the jury. Whereas by the general issue with leave to give the special matter in evidence, the whole goes to the jury (subject to be sure to the charge of the Court) in so confused a manner, that when the trial comes on, the parties hardly know what is to be tried. I am therefore of opinion, that when the defendant offers such a plea, it is error to refuse it, unless it is put in at such a time as «hews that the object is delay. In the present instance, the reasons assigned by the Court for their opinion, shew that the pleas were not rejected because they were put in for delay, and the record shews the same thing, because they were put in on the 20th of July, and the cause was not tried until September following. The pleas ought therefore to have been received, and the plaintiff should have been ordered to reply to them.

2. The second error assigned is of a multifarious nature; it includes several distinct points which I will consider separately. It is objected that the bond ought not to have been admitted in evidence, because it was not recorded in the office of the recorder of deeds, and transmitted to the secretary and recorded in his office. The act of assembly directs that this should be done, and it ought to be done. But if the bond is sealed and delivered, it is not the less valid because the officers of the Commonwealth neglect their duty in not recording it. The recording was for the facility of proving the bond on a trial, as well as for safety in case of loss. These advantages are lost in not recording. No copy could be received in evidence, and the plaintiff was driven to the necessity of producing the original. He did produce it, and proved the execution; that being done, it was proper that it should be read to the jury. The next objection is, that there was no proof of the sureties-in the bond being approved by the judges of the Court of Common Pleas and by the governor, previous to its execution. I cannot think that this was necessary. The bond having been executed, and the coroner having acted in his official capacity, it may fairly be presumed, that the approbation required by the act of assembly had been previously given; ■ Another objection is that there was no proof of the com-' mission having issued to the coroner. Neither' do I think that this proof was necessary. It was proved that Samuel Young had executed and returned a writ directed to him as coroner, which was quite sufficient, because he had no right to execute the writ until he was commissioned.

3. The third error assigned is, that the Court directed the jury, that on the issue joined, evidence of a commission having issued to the coroner was not necessary, I have taken notice of this objection before, which is but a repetition of •what was included in the second error. ■

4. The last error assigned is, that the Court directed the jury that there was no occasion for the plaintiff to prove that a'recognizance had been taken by the recorder of deeds of Indiana county, according to the provision of the act of 28th March 1803. The opinion of the Court was, “that “ such evidence was unnecessary in support of the present “ suit.” In considering this objection, we shall perceive the difficulty into which the defendants were thrown by the rejection of their special plea. If that plea had stood, the plaintiff must either have demurred, in which case the fact of no recognizance having been given would have been confessed, or he must have replied that a recognizance was given, and then it would have lain on him to prove it. Whereas the plaintiff’s counsel now contend, that if no recognizance was given, it lay upon the defendant to prove the negative. Whether that was the opinion of the Court below, does not clearly appear. They only say that it was not necessary for .the plaintiff to prove that a recognizance was given. But the Court having declared that the special plea ought not to be received, because the defendants might have all the advantage of it on the general issue, it would be unjust that they should not be placed in the same situation in which they would have stood, if the plea had been admitted, and then it would have lain on the plaintiff to prove the affirmative. I will not say whether the recognisance might not have been good, although not taken before the recorder, if taken before a judge of the Court of Common Pleas; but if no recognizance at all was given, it appears to me that the plaintiff cannot recover on the bond. The act of assembly directs that bond and recognizance shall be given, and that unless given, “ the commission and all “ acts whatsoever, done by the coroner under colour of office, “ shall be void and of no effect.” Now this bond, by the express terms of the condition, is to have no effect until Samuel A * 7 Young shall be duly commissioned coroner &c. But a void commission is rio commission; therefore by the positive provision of the law, there can be no recovery on the bond unless it is accompanied with a recognizance. This may be attended with excessive hardship, when the officers of the Commonwealth have been so inattentive, as not to see that the law has been complied with before the commission issues, or at least before any process is put into the hands of the sheriff or coroner; and it may be doubted whether the legislature, in their anxiety to enforce security, may not have gone farther than was necessary. The subject is well worthy of their consideration; for as the law stands, both individuals and the public may be subject to great injury from the hardihood of a sheriff or coroner elect, who- presumes to act without having given the requisite security. On the whole it is my opinion that the judgment should be reversed, and a new trial ordered.

Yeates J. was prevented by sickness from being present' at the argument. BrackenridGE J. concurred with the Chief Justice.

Judgment reversed.