Borlin v. Commonwealth ex rel. Hillis

Mr, Justice Trunkey delivered the opinion of the court, November 14th 1881. James Borlin, with his sureties, entered into recognizance, in the form prescribed by statute to be given by the sheriff before he enters upon the duties of his office. [46] Among the conditions is, that he shall well and faithfully execute and perform all and singular the trusts and duties to the said office lawfully appertaining. Another is, that he shall, from time to time, upon request, pay to the proper parties, all sums of money to them respectively belonging, which shall come to his hands in the execution of writs and process to him directed. This suit is upon the recognizance, and judgment was entered in default of an affidavit of defence. It is assigned for error that the judgment was not authorized by the rules of court. The rule applies to actions on recognizances, judgments, mortgages, bonds and other instruments of writing for the payment of money. It is similar to rules in other districts, and to numerous local statutes authorizing judgments for like default. Put these statutes and rules, though not equally extensive in their application, have always been limited to obligations and contracts for the payment of money. They do not include actions in tort, nor an action upon a contract which is for an uncertain sum. The contract to pay may be implied, as where a man sells and delivers goods without an express agreement as to the price, in an action against the buyer the seller may aver the value, for it can be made certain. It was said by the learned judge of the Common Pleas that the rule is very extensive and covers this case. If all recognizances are covered by it, so are all bonds and judgments. Some of each of these may be for the payment of money, and others a security for a collateral matter. One class is within the rule, and the other without. If A. and B. give their bond to 0., conditioned for the performance of a contract by B. to build a house for C., and B. fails to perform his contract, C. may recover his damages on the bond; but he cannot take judgment in default of an affidavit of defence. There is no standard by which to liqxiidate such judgment. Whatever the kind of obligation, if it be conditioned for the performance of the duty of a public officer, or of a trustee, or of an agent or clerk, or to secure the delivery of goods, or the rendering of services, it is not within the statutes or rules of court: Dauphin & S. Coal Co. v. Dasher, 1 Pearson 148; Strock v. Commonwealth, 9 Nor. 272. In Commonwealth v. Hoffman, 24 P. F. Smith 105, it was held, in the court below, that a sheriff’s recognizance, by its very terms, is for the performance of a collateral condition, and not within the rules of court, which was affirmed, with the remark that the recognizance was not a record for the payment of money, but for the performance of collateral conditions. There the rule included records. A sheriff’s recognizance is a record, and the record was treated precisely as a recognizance, [47] or judgment, or bond, or mortgage would have been, if conditioned for the security of gome collateral matter. In all the rules and statutes, the several obligations therein named heretofore have been construed to mean only such as ■were for the payment of money; and, we think, the rule in Westmoreland should receive like construction. The language is similar to that used in prior statutes and rules, which had been judicially interpreted, and, therefore, is presumed to have been employed in the same sense. As the rule does not apply to an action on a sheriff’s recognizance, or upon any other instrument to secure collateral conditions, it is unnecessary to decide whether the courts have power to make rules which would include such instruments. If they have, and should exercise it, as remarked by the late Justice Woodward, in Sands v. Fritz, 3 Nor. 15, the practice of requiring affidavits of defence in such cases would seem capable of producing mischief and injustice. Judgment reversed, and procedendo awarded.