#### Fox, Administrator, etc., of Tallman *versus The*Commonwealth.

1. The records of the Quarter Sessions in a prosecution had this entry: “ October 1st, 1870; recognizance -of the defendants and sureties forfeited.” In an' action on the recognizance against a surety; *Held,*that the entry was proof that all the steps necessary to complete the forfeiture had been taken.

2. 'On the maxim *omnia prcemmuntv/r rite esse acta,*the entry was conclusive that the defendants and bail were called and did not appear.

3. Under the act of March 21st, 1821 (Recognizances), it is to be presumed that the justice’s transcript of the recognizance was before the Court, and the Court could determine the locality of the transaction, although it may not have appeared in the recognizance.

4. Courts take judicial notice of justices and aldermen as public officers.

5. Hibbs *v.*Blair, 2 Harris, 413; Goddard *v.*Gloninger, 5 Watts, 219.

February 23d, 1875.

Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

*512Error to the Court of Quarter Sessions of *Philadelphia,*of July Term, 1873, No. 51..

This was an action of debt, *sur*recognizance, brought in the Court of Quarter Sessions of Philadelphia, to February Term, 1871, by the Commonwealth of Pennsylvania against John Fisher and Henry Fox, administrator, etc., of George L. Tallman, deceased. The sheriff returned “ summoned,” as to Fox, and *“nihil,”*as to Fisher.

The declaration was as follows:

Henry Fox, administrator, etc., of George L. Tallman, deceased (who was sued with John Fisher, as to whom the sheriff returned *nihil habet),*was summoned to answer the Commonwealth of Pennsylvania of a plea that he render to said plaintiff the sum of six hundred dollars, lawful money of the United States, which he unjustly detains from said plaintiff’. And thereupon the said Commonwealth, by Fur-man Sheppard, District Attorney, complains, for that whereas the said Geoi’ge L. Tallman, in his lifetime, to wit, on the 2d day of 'September, A.D. 1870, at the city and county aforesaid, personally came before William P. Becker, an alderman in and for said city and county, etc., and then and there acknowledged himself to be indebted to the said Commonwealth of Pennsylvania in the said sum of six hundred dollars above demanded, to be levied of his the said George L. Tallman’s lands and tenements, goods and chattels, upon this condition, that if the said John Fisher should be and appear at the next Court of Quarter Sessions, viz., at the September Term of said court, then and there to answer all such charges as might be preferred against .the said John Fisher, and.should abide and not depart the Court without leave, then the said recognizance should be void and of no effect, otherwise to remain in full force and virtue, as by the record of the said recognizance, remaining in the said Court here, more fully appears. And whereas also afterwards, etc., a true bill of indictment was found against said John Fisher, *sur*charge of receiving stolen goods.

And the said plaintiff’ in fact saith that the said John Fisher did not appear at the said Court of Quarter Sessions, viz., at the September Term of said Court, then and there to answer all such charges as were preferred against him, the said John Fisher, and abide and not depart the Court without leave, according to the condition of said recognizance, but therein wholly failed and made default, whereby, heretofore, to wit, on the first day of October, A.D. 1870, at the city and county aforesaid, the said recognizance becaine forfeited ; yet the said George L. Tallman, in his lifetime, did not pay, nor hath the said defendant, Henry Fox, adminis*513trat-or as aforesaid, since the death of the said George L. Tallman, as yet paid the said sum of six' hundred dollars above demanded, or-any'part thereof to said plaintiff, etc. . . .

Defendant, Henry 3L Fox, pleaded: 1, *nil debet;*2, *nid tiel record ;*3, *comperuit ad diem ;*4, payment with leave, etc.

The Commonwealth demurred to the 1st plea, “ Because, although said plaintiff" in his declaration hath demanded of said defendant a sum certain by virtue of a certain recognizance, yet the said defendant hath not, by his said plea, denied the said record or shown himself to be discharged therefrom, and also for that the defendant should have pleaded that there is no such record, and not that he did not owe the debt demanded. Wherefore plaintiff, by reason of the insufficiency of said plea, prays judgment, etc.”

The Commonwealth replied to the other pleas.

As to the 2d, “ That there is such a record of the said recognizance remaining in the said Court, as the said plaintiff hath above in his said declaration in that behalf alleged. And this said plaintiff is ready to verify by the said record.” As to the 3d, “ That there is no record of the said appearance of the said John Fisher, according to the condition of the said recognizance mentioned, remaining in said Court of Quarter Sessions, in manner and form as defendant has alleged. And this said plaintiff is ready to verify, etc.”

As to the 4th, “ *Non*solvit.”

The recognizance was as follows:

The Commonwealth oe Pennsylvania *v.*John Fisher.

I, George L. Tallman, 508 Beach Street, do acknowledge myself indebted to the Commonwealth of Pennsylvania in the sum of six hundred dollars, to be levied of my lands and tenements, goods and chattels, conditioned that if John Fisher shall be and appear at the next-Court of Quarter Sessions, viz., September Term of said Court, then and there to answer all such charges as may be preferred against the said John Fisher, and shall abide and not depart the Court without leave, then this recognizance to be void and of no effect; otherwise, to remain in full force and virtue.

Geor&e L. Tallman. [seal.]

Taken and acknowledged before me, this 2d day of September, 1870.-

William P. Becker,

Alderman.

*514On the docket of the Quarter Sessions is the following record:

“ Commonwealth 416. *v.*John Fisher, William Smith. ^

Receiving Stolen Goods. September 20th, 1870, ‘True Bill.’ October 1st, 1870, recognizance of the defendants and sureties forfeited.”

On the 21st of February, 1873, judgment was entered for the Commonwealth on the plea of “ *nul tiel record.”*

. On the 12th of April; 1873, judgment was entered for the Commonwealth first and third pleas.

On the 7th of May, 1873, the parties went to trial on the plea of payment; a. verdict was found for the Commonwealth for $'600. Judgment having been entered on the verdict, the defendant, Fox, took a writ of error.

He assigned the following errors :

1. The declaration shows no cause of action ; it is a joint action against two; it states a several obligation by one of them; it does not show any authority for taking the recognizance, nor in what Court the principal was bound to ’appear ; nor any sufficient breach; it not being averred that either the principal defendant or his bail were called.

2. The Court erred in giving judgment for the Commonwealth on the demurrer to the plea of *nil debet.*

3. The Court erred in giving judgment for the Commonwealth on the plea of *nul tiel record ;*there was nothing to show that the alleged recognizance had ever been filed of record; it does not provide before what Court the defendant was to appear ; and there was no record of any breach, by calling the principal defendant or his bail..

4. The Court erred in giving judgment on the plea of *comperuit ad diem ;*there was no issue on this plea; the replication to" it was insufficient to sustain the judgment; and it was triable by the jury, and not by the Court.

5. The pleadings and proceedings are wholly insufficient to support the judgment.

*F. G.*Brightly, for plaintiff in error.

The declaration sets forth a writ against two defendants, and then goes on to state a several obligation of one of them only. .By the English practice, where a suit is commenced by bill, upon which mesne process issues against several, the plaintiff may declare against one only of the defendants on his several obligation ; but that it is otherwise, where the suit is commenced by original writ, in which case, greater strictness is required, and the declaration must pursue the writ: Turing *v.*Jones, 5 T. R., 402; Bell *v.*Carrell, 1 Cowen, 192.

*515The declaration does not show any authority for taking the recognizance. It does not show that Fisher was before the alderman charged with any particular offence; nor does it show at what Court he was to appear.

The declaration must set forth the facts showing the magistrate’s right to require bail in the particular case: People *v.*Koeber, 7 Hill, 39. It must appear that the party was charged, on oath, with a criminal offence bailable before the magistrate; that the justice decided to hold him to bail •; and that the recognizance was given to relieve him from imprisonment on such charge: People *v.*Young, 7 Hill, 44.

The party who is to appear, should be solemnly called, before his default is entered; and in an action on the recognizance, it should be clearly proved that the party was called and warned, and neglected to appear : Dillingham *v.*United States, 2 W. C. C., 422; Mishler *v.*Commonwealth, 12 P. F. Smith, 60 ; People *v.*Wilgus, 5 Denio, 58.

There is nothing by inspection of the record to show that the recognizance was filed. The recognizance does not show where it was taken, nor that Fisher was to appear before the Quarter Sessions of Philadelphia. The declaration avers that there was such a record, and the plea *nul tiel record*was good.

*G. G.*Purves, for Commonwealth, defendant in error.

Any number of defendants might have been joined in one writ, and the plaintiff could afterwards declare against those brought into Court, either severally, or against some, omitting others: 1 Chitty’s Pleadings, 249. The declaration is not on a joint process, it only shows that process issued against two. If irregular, this could only be taken advantage of by demurrer: Dillman *v.*Schultz, 5 S. & It., 35.

Upon an entry of the forfeiture as to each, it would be *conclusively*presumed that this form had been pursued: Mishler *v.*Commonwealth, *supra.*

The short minutes of a recognizance taken by a magistrate, are sufficient, provided they substantially show the amount and condition, and that the party was bound to the Commonwealth: Commonwealth *v.*Emery, 2 Binney, 431. There are no defects in the declaration that are not cured by the verdict, or which might not have been amended in the Court below. If so, they will be considered in this Court as actually amended: Shoenberger *v.*Hackman, 1 Wright, 90 ; Loew *v.*Stocker, 11 P. F. Smith, 347.

The plea of *nil debet*is a bad plea, because it refers that which is matter of record to a jury: 3 Chitty’s Pleadings, pp. *982, *996, note b, 1 Id., *483; Jones *v.*Pope, 1 Saund., *51688, note 3; Solomons *v.*Lyon, 1 East, 369; Bullis *v.*Giddens, 8 Johns, 82; Niblo *v.*Clark, 3 Wend., 24; Moyer *v.*Fisher, 12 Harris, 513.

The record shows the recognizance to have been forfeited. If so, it must have been filed of record.

4. The plea of *comperuit ad diem,*avers that defendant appeared, as appears by the record. In whatever way defendant appeared, there would have been a record of it. The record of forfeiture proves conclusively the non-appearance of defendant, according to the condition of the recognizance.

As the defendant did not demur to the declaration, but pleaded in bar, nor take any exception or objection to the evidence and proceedings in the Court below, if there are any errors in the proceedings, the plaintiff in error has waived them: Wollenweber v. Ketterlinus, 5 Harris, 389; Steckel *v.*Steckel, 4 Casey, 233; Hilling *v.*Wilson, 1 Grant, 121; Weaver’s Estate, 1 Casey, 434; Spangler *v.*Springer, 10 Harris, 460; Hardy *v.*Watts, Id., 35.

Judgment was entered in the Supreme Court, March 1st, 1875.

Per Curiam:

We think there was no substantial error committed in this case The entry of the forfeiture of the recognizance stands for proof of all the steps necessary to complete the forfeiture. Hence we must talce it for verity that the defendant and his bail were duly called and did not appear or answer. In courts of justice *omnia prmsumuntur rite esse acta.*

There is no difficulty as to the recognizance. The first section of the act of March 30th, 1821, 1 Brightly’s Purdon, 873, pl. 144, requires the justices and aldermen of Philadelphia to set down in a docket kept for the purpose the name, place of abode, and business of the recognizor and the surety, and to make a full return of the recognizance, together with the proceedings of the justice or alderman relating to the case in which the recognizance was taken, and a neglect or refusal to do so is made a misdemeanor in office. We must suppose, therefore, that this transcript was before the Court. The Court therefore could have no difficulty in determining the locality of the transaction. As to the alderman, we must also presume the Court took judicial cognizance of his official character as an alderman of Philadelphia. The courts take judicial notice of them as public officers: Hibbs *v.*Blair, 2 Harris, 413 ; Goddard *v.*Gloninger, 5 Watts, 219. A *prima facie*case was made out.

Judgment affirmed.