17 Pa. 130 | Pa. | 1851
The opinion of the court was delivered by
An action was brought in this case in the name of “The Board of Commissioners of Montgomery county,” upon a bond purporting to be executed by the defendant below, in that form. The bond was executed also by Jacob S. Sands, and was given to secure the faithful performance of his duty as collector of taxes. Issues were joined in the court below, upon the pleas of non est factum and payment; ,and the cause ought to have been tried upon those issues. These pleas admitted the legal capacity of the plaintiff to maintain the action, in the name set forth in the declaration. That right being thus admitted upon the record, it was not material to inquire whether it was founded upon an actual existence as a natural person, or upon a legal existence as a corporation thus named. It was sufficient that the
The objection to the competency of Samuel H. Graff is without foundation. He never was a party to the contract, nor had he at any time any further interest in the recovery than that which is common to every tax-payer of Montgomery county. It is not material to inquire whether he was Commissioner of the county at the time the bond was executed, or at any other time, inasmuch as it does not appear that he has been guilty of any neglect which should make him liable for the matter in controversy in any event. His holding, at one time, the office of Commissioner does not affect his interest; and if it did, the objection is removed by the Act of 16th April, 1840, which takes away all objections by reason of being “ an officer, or rated citizen, or inhabitant of the county.” The court below did but conform to the well settled rule of law in permitting the plaintiff, after the recollection of the subscribing witness failed, to establish the execution of the bond by other testimony. Burr. 2224; 7 Taunt. 251; Douglass 206; 2 Camp. 635; Skin. 79, 413, 637; 1 Saund. Pl. & Ev. 939.
The objection that the bond is destroyed by reason of N. Wagonhurst’s name being attached as an attending witness, is destitute of an essential ingredient to make it available. It does not appear to have been done at the request of the plaintiff, or even with the knowledge of any of the Commissioners or officers of the county that it was without the consent of the obligors. On the contrary it appears affirmatively to have been done at the request of at least one of the obligors, ih the absence of the obligee, and whether in the presence or absence of the party who now makes the objection does not distinctly appear, owing to a failure of
Judgment .affirmed.