222 Pa. 214 | Pa. | 1908
Opinion by
The appellant entered into a recognizance for the appearance of Frank Harvey at the January Term,.1906, of the court of quarter sessions of Dauphin county. It was forfeited, and in this suit upon it the question of its breach cannot be raised. The court of quarter sessions’ decree of forfeiture is conclusive in the proceedings in the common pleas: Shriver v. Commonwealth, 2 Rawle, 206; Rhoads v. Commonwealth, 15 Pa. 272; Pierson v. Commonwealth, 3 Grant, 311; Commonwealth v. Basendorf, 153 Pa. 459.
By the Act of December 9, 1783, 2 Sm. L. 86, the courts of common pleas are empowered to levy, moderate or remit recognizances forfeited in the courts of quarter sessions “ on hearing the circumstances of the case according to equity and their legal discretion; ” and this court may hear appeals from orders or judgments of said courts on such forfeited recognizances. The affidavit of defense in this case is but an appeal to the discretion of the court below tt> remit the forfeiture of the recognizance. No legal defense is set up in it, and the court committed no error in ref using, to exercise the discretion given by the act of 1783. The condition of the recognizance
The appeal of the defendant below to the discretion of the court to give it some measure of relief is based upon an averment that on the second day of the court, when the bill of indictment against Harvey was presented to and ignored by the grand jury, he was present and remained in court until the following day, ready to answer the charge that had been preferred against him and any other that might be preferred, but that the uniform and unbroken practice in the court of quarter sessions of the county was to regard the report of a grand jury ignoring a bill of indictment as ipso facto a discharge of the defendant, and to treat an entry upon the records of the court of such action by the grand jury as leave for him to depart. The uniform and unbroken practice in the court of quarter sessions is not a. question in this proceeding by the commonwealth to recover for the use of the county on a recognizance actually forfeited. The averment as to such practice might have been taken into consideration by the court below as a reason for exercising its legal discretion in moderating or remitting the forfeiture, but it was not required to do so. Though the affidavit of defense avers Harvey’s appearance in court and his remaining there until the third day, there is no averment that leave ever was given him to depart. On the contrary, it rather appears not only that such leave was not given, but, if it had been asked for, would have been refused.
Judgment affirmed.