Knapp v. Miller

*281Opinion,

There is but one assignment of error in this case, and the only question raised by it is the admissibility of an offer of testimony made by the defendant and rejected by the court. The offer made was to give in evidence an information and record of a proceeding before a justice under the Swine Act of 1705, to be followed with further evidence as to the putting up of notices in the manner required by law. The chief objection to the offer was that the docket of the justice did not show that the hogs were suffered to run at large, and apparently the offer was rejected upon this ground. The papers which constitute the record, and also a certified transcript of the entries on the docket of the justice, are printed in full in the bill of exceptions. The information which is the commencement of the proceeding is carefully drawn, and contains an averment under oath of every fact necessary to give jurisdiction to the justice under the statute. It especially avers that the informant on the 15th day of November, A. d. 1885, “found upon his lands, situated in the township of West Penn, aforesaid, ten shoats or pigs, suffered to run at large without rings in their noses and yokes or bows about their necks,” etc. It seems to be supposed that, because the certified copy of the docket entries did not repeat the statement that the hogs were suffered to run at large, the record was fatally defective and could not be received in evidence, notwithstanding the allegation on that subject in the information, on the theory that the information was not a part of the record. The court below appears to have adopted this theory, and in pursuance of it rejected the offer.

We are quite unable to agree with this view. The information is the one essential and important paper upon which the whole proceeding is founded. Most certainly it is a part, and a very necessary part of the record, and of course it cannot be disregarded in considering a question of jurisdiction. It is upon the facts there set forth that the question of jurisdiction arises, and it would be impossible to determine that question without an examination of the information and a consideration of its contents. No authority has been cited to show that it is not a part of the record of such a proceeding as this, and, in analogy to the practice in other proceedings which are out of *282the usual course of the common-law pleadings, we cannot but regard it as an essential part of the record, quite as much so as an information filed by the attorney general, or a petition for a mandamus, or a writ of quo warranto, or any other special proceeding not within ordinary common-law or equitable remedies. This particular proceeding is based upon a statute which gives jurisdiction to a justice upon being made acquainted with the requisite facts, and requires no adjudication by him: Commonwealth v. Fourteen Hogs, 10 S. & R. 398. The method of acquainting the justice with the facts is not specially designated, except that he shall be legally attested of them, but we cannot imagine any more appropriate method than the one adopted in this case. It was by a paper called an “ information,” in which all the jurisdictional facts are fully and carefully stated, and it is signed and sworn to before the justice whose jurat is affixed. Upon the filing of this information the order to the two appraisers is issued, and that also was done under the hand and seal of the justice, and thereupon a return by the appraisers, signed and sworn to, was made and filed. Then a public notice was prepared, reciting all the proceedings, in accordance with the provisions of the act, in a most precise and complete manner, and proof was offered of its publication. But this proof also was rejected by the court.

These papers certainly constitute the record of this case, and it would be quite strange that a part of them may be rejected, and then an objection sustained that certain jurisdictional facts do not appear upon the remaining part. In both of the cases, McDermott v. McIlwain, 75 Pa. 341, and Maxwell v. Perkins, 93 Pa. 255, which were proceedings under the landlord and tenant act, the complaint before the justice was distinctly recognized as being part of the record, but it does not require the analogy of those eases to sustain a similar proposition as to this. Here the information is absolutely essential; it is the only source of the knowledge of the justice as to the facts upon which his action must be based, and, of course, it cannot be properly excluded from the consideration of the appellate court when the very question for decision is, did the necessary jurisdictional facts exist? To know whether the justice was authorized to proceed, we must necessarily know the facts upon which he did proceed; and we cannot have that knowledge *283without inspecting the information upon which he acted. In the case of Strauser v. Kosier, 58 Pa. 496, there does not appear to have been any original information signed and attested and filed before the justice, but only a recital by him in his docket entries of what had taken place; and the record was pronounced fatally defective because the fact that the hog was suffered to run at large did not appear on the record except by an amendment made five months after the proceeding was commenced, and that the record did not show any legal attestation of the justice that the hog was taken up running at large without yoke or ring or bow, but, as this defect does not exist in the present case, the decision in Strauser v. Kosier has no application.

There is no merit in the objection that the defence was not admissible under the plea of not guilty. In Sylvester v. Girard, 4 R. 185, we held, in an action of trover and plea of not guilty, that “ under his plea he (the defendant) can by law defeat the plaintiff by showing title in himself or a third person, and either will equally defeat the plaintiff’s recovery.” In Blakey v. Douglass, 5 Cent. R. 274, we held that, under the general issue, the plaintiff must prove his title, general or special, coupled with the right of immediate possession, and the wrongful conversion by the defendant; and that “ the defendant may rebut either of the allegations of fact on which the plaintiff’s right of action depends. For example, he may show outstanding paramount title to the property in controversy, or that he has not wrongfully converted it to his own use.” As the defendant in this case sought to show that there was no wrongful conversion to his own use, but a rightful taking according to law, he certainly was entitled to do so.

Judgment reversed, and new venire awarded.