Ballou v. Smith

29 N.H. 530 | Superior Court of New Hampshire | 1854

Eastman, J.

It appears from an examination of the affidavits accompanying this petition, taken in behalf of the respondent as well as the petitioner, that at the time judgment was rendered against the petitioner by the magistrate, he claimed an appeal therefrom, and offered himself, with two sufficient sureties, to recognize according to the statute. That on presenting themselves'to enter into recognizance, the magistrate inquired if it was necessary to go through with the form of taking the recognizance, and was told that it was not; that, accordingly, no formal recognizance was taken, but the magistrate, with the assent of the principal and sureties, and in their presence, made the entry in his docket, as stated in the petition, viz: “ Appealed. John Ballou, principal, Enoch Y. Dudley, N. B. Bryant sureties, in the sum of $20 for cost.” Now, although we regard this as a loose way of taking a recognizance, and liable to abuse and misunderstanding, and although the better and safer practice is for the magistrate to go through with the usual and well understood form when he takes a recognizance, yet, in this case, we think there was sufficient done to perfect the appeal.

After an entry made upon the docket of the justice, under the circumstances disclosed here, the sureties would not, in an action against them, be permitted to say that they had never entered into the recognizance. The docket of the magistrate would be conclusive upon them, and the failure to go through with the form of the recognizance could not affect their liabity to the appellee.

But the taking of a recognizance in this way might sometimes lead to controversy and litigation between the magistrate and the sureties, upon the ground of there having been false entries made upon the docket. The entry upon the docket is sufficient, but the form of acknowledging themselves bound, &c., should be gone through with.

"We have held in the case of a record made in the superior court, that the clerk may extend the judgment of the court from the minutes and papers On file, whenever that becomes necessary, at any time. And from the record so made up, the clerk can make and certify a copy which will be conclusive evidence of the judgment. Willard v. Harvey, 4 Foster’s Rep. 344.

When this respondent was requested to furnish the copies, should have drawn out the recognizance in due form from the minutes on his docket, and then furnished a copy of such recognizance to the appellant. Not having so done and refusing to do it, a mandamus must issue, commanding him to make up his record, and furnish a copy of the recognizance according to the views here expressed.

Mandamus to issue.