Commonwealth v. Cheney, 108 Mass. 33

108 Mass. 33 | Mass. | 1871

Wells, J.

As amended, the declaration is sufficient ; and is sustained by the amended record and recognizance. The amendment of the declaration was authorized by the Gen. Sts. c. 129, | 41. Its allowance was a matter of discretion with the superior iourt, and not open to exception.

The proceedings before the magistrate, returned by him to the superior court, were treated by that court as of record therein. The absence of any minute of filing did not prevent them from being so considered. Commonwealth v. Merriam, 7 Allen, 356.

The amendment of the record and of the recognizance so returned, by filing a new and corrected memorandum of the recognizance, by permission of the superior court, was a matter within the exclusive control of that court. Its action is final, and not open to exception. Fay v. Wenzell, 8 Cush. 315.

The defendants contend that the new certificate of recognizance is not an amendment of the former one, but the substitution of a new and different recognizance; that is, as we understand the objection, that it is an attempt to make a correction of the contract itself, and not merely of the record of it. " We do not think this position is sustained by the facts. In the application for leave to amend, the magistrate calls it an error made by himself “ in reducing the recognizance to writing.” In the exceptions, it is stated that the certificate originally filed “ was not a correct copy of the recognizance and record.” These statements imply only an error in extending the original record of the recognizance, properly corrected by the new certificate.

The defendants also contend that the cause of action, set forth by the amended declaration, did not arise until the amended memorandum of recognizance, upon which it is founded, was placed on file in the superior court; and, as that was done after the date of the writ, that this suit cannot be maintained upon it.

The foundation of the action is the contract of the defendants. The nature of the contract is such that no action can be brought upon it unless the recognizance be returned to the tribunal before which the party is required to appear, and thence certified, with the record of the proceedings to which it is incident, to the ,’curt which is authorized to take further action thereupon in case of default. All this requirement has been complied with. The record of the proceedings, and the fact of the recognizance of the party and his sureties, were duly certified to the superior court before this suit was commenced. The whole became thereupon of record in that court. Benedict v. Cutting, 13 Met. 181. Until fully extended there, the papers and memoranda, duly certified by the magistrate, constituted the record. If any of them were in any respect incomplete, defective or erroneous, they were capable of amendment, upon proper proof of the truth of the case. The certificate of the magistrate to the amended return might properly be received by the superior court, to show what were the terms of the recognizance actually entered into before him; and the record of the superior court amended accordingly. The action of the superior court, in directing or authorizing the amendment, is conclusive in the matter. Cook v. Berth, post, 73.

An amendment so made is not a new record; and does not give rise to a new cause of action. It is made nuno pro tuna, and has the same operation as if the record had been originally extended in the amended form. This has frequently been held in similar and analogous cases, even where the effect is to cut off intervening rights. Atkins v. Sawyer, 1 Pick. 351. Haven v. Snow, 14 Pick. 28. Johnson v. Day, 17 Pick. 106. Baxter v. Rice, 21 Pick. 197. Balch v. Shaw, 7 Cush. 282. Pratt v. Wheeler, 6 Gray, 520. Hitchings v. Ellis, 1 Allen, 475. Commonwealth v. Field, 11 Allen, 488. McCormick v. Carroll, 103 Mass. 151. Close v. Gillespey, 3 Johns. 526. The result is, that She

Exceptions must be overruled.