Bent v. Stone

• Decision Date: 01 September 1903
• Citation: 68 N.E. 46,184 Mass. 92
• Parties: BENT v. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 92

68 N.E. 46

BENT v. STONE.

Supreme Judicial Court of Massachusetts, Middlesex.

September 1, 1903

COUNSEL

Wm. Reed Bigelow, for plaintiff.

Chas F. Choate, Jr., for defendant.

OPINION

MORTON J.

This is an action upon a poor debtor's recognizance. The breach relied on is that the debtor 'did not appear and submit himself to examination according to the terms of said recognizance.' The case was tried by the court without a jury. The answer set up, amongst other things, that the signature of the defendant to the recognizance was obtained by fraud and deception practiced on him by the debtor; that the true nature of the recognizance was concealed from him and that its obligation was not explained to him; all of which it is alleged was fraudulently known to and consented to by the plaintiff. The court found that no deception was practiced, and that the defendant understood the nature of the recognizance. The court also found as a fact that there had been a breach of the recognizance. At the conclusion of the whole case the court found and ruled that the plaintiff could not recover, and refused the rulings asked for by the plaintiff, and found for the defendant. The plaintiff duly excepted to the refusal of the court to give the rulings requested. The case is here on a report by the presiding justice: 'If upon the foregoing evidence [i. e., the evidence contained in the report] the court was not justified in finding a breach of the recognizance, judgment is to be entered for the defendant. If on the foregoing evidence as it stood, or as it would stand after striking out any evidence objected to and inadmissible, the plaintiff was entitled to recover, judgment is to be entered for the plaintiff in the sum of $400 and interest from the date of the writ, if the plaintiff is entitled to it; otherwise judgment is to be entered on the finding for the defendant.'

The first ruling requested by the plaintiff was that: 'If the court finds that John Berry [the debtor] did not deliver himself up for examination, as required by the condition of his recognizance, then upon all the evidence the plaintiff is entitled to recover as matter of law.' This covers the whole case, and, in the view which we take of the case, it is unnecessary to consider particularly the other rulings requested by the plaintiff. Without going into the evidence in detail, we deem it enough to say that it seems to us clear that it justified the finding that there was a breach of the recognizance. If the debtor had submitted himself for examination, it is reasonable to suppose that some notice or information of that fact would have come to the knowledge of the plaintiff, or his counsel, or the officer holding the execution. It is a fair inference from the evidence that no such notice or information was received, and therefore that the debtor did not submit himself for examination as required.

The recognizance was taken by the first special justice of the First district court of Eastern Worcester at Westborough, but it does not show that it was taken by him while holding court in the absence of the standing justice. It was agreed that the only docket entries of that court in reference to the case were as follows: 'Case No. 40, 1896. Russell S. Bent vs. John Berry. July 29, 1896. Ex'on filed and oath; Notice issued, ret. Aug. 10, '96. Aug. 10, neither party appeared. July 14, 1897, Ex'on r't'd for renewal.' And, relying upon Stack v. O'Brien, 157 Mass. 374, 32 N.E. 351, the defendant contends that the recognizance is invalid. The special justice had no authority to take the recognizance, except while sitting as a court in the absence of the standing justice, and that fact should appear of record. Stack v. O'Brien, supra. Com. v. Fay, 151 Mass. 380, 24 N.E. 201. But at a former trial the special justice had been allowed, on his motion, to amend the records of the court as they appeared in relation to the taking of the recognizance by stating that he was present and holding court on account of the absence of the standing justice, and at his request. It was within the power of the court to allow this amendment (Com. v. Carney, 153 Mass. 444, 27 N.E. 9; Com. v. Quirk, 155 Mass. 296, 29 N.E. 514; Dewey v. Peeler, 161 Mass. 153, 36 N.E. 800, 42 Am. St. Rep. 399), and the record, as thus amended, must be taken to be the true record, and to show that the recognizance was properly taken. The special justice did not derive the power to amend the records of his court from the action of the superior court. As special justice he had that authority. The only effect of the motion and its allowance was to introduce the amendment into the pending case. Wether the motion should be allowed was a matter within the discretion of the presiding justice, and it must be presumed that he found that the record had been or should be amended as set forth. In addition to this, there was also a certificate from Mr. Fowler, who had subsequently been appointed justice of the court, certifying to a copy of the record which contained the same things. The letter of Mr. Fowler, if offered for the purpose of contradicting the record, was inadmissible. May v. Hammond, 146 Mass. 439, 15 N.E. 925.

The defendant also contends that the record of the district court shows that no oath or affidavit was made which justified the issuing of a certificate of arrest. The record is imperfect in respect to this matter, as well as in respect to the issuing of the certificate. But it is agreed that four executions were issued, and that the arrest was made on the fourth. It is also agreed that a certificate of arrest was made by the justice of the court, and attached to the alias or second execution; and that a copy of that certificate, duly certified to by the assistant clerk of the municipal court of Boston, from which the execution issued, was attached to the execution on which the arrest was made. It does not appear that no oath or affidavit was made, and no objection seems to have been taken by the debtor, when arrested,...