Damon v. Carrol

• Decision Date: 05 April 1895
• Citation: 40 N.E. 185,163 Mass. 404
• Parties: DAMON et al. v. CARROLL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 404

40 N.E. 185

DAMON et al. v. CARROLL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 5, 1895

COUNSEL

Sherman L. Whipple and Robert W. Frost, for plaintiffs.

E Dunham, for defendant E.C. Mitchell, Jr.

William E. Cassidy, for defendant Edward Carroll.

OPINION

BARKER J.

The bill of exceptions purports to state all the evidence. It consisted of original documents, a duly-verified copy of the record of a municipal court, of oral testimony that the debtor, his attorney, and the creditor's attorney left the court room 15 or 20 minutes after the order authorizing the commitment of the debtor, and of the testimony of the clerk of the court that no mittimus was made out by him. This testimony of the clerk was the only evidence objected to. No exception was saved to its admission; but the court, after refusing to rule that, upon the evidence, the plaintiffs could not maintain the action stated that all questions of law which might be raised on the evidence were open to the defendants, and then said that it should instruct the jury that, if they believed the evidence offered, they should find for the plaintiffs. There was a verdict for the plaintiffs, and the case is here upon the defendants' exception to the refusal of the ruling that upon the evidence, the plaintiffs could not maintain the action, and to the ruling that, if the jury believed the evidence offered, they should find for the plaintiffs. The bill of exceptions states also that "the pleadings may be referred to, and the copy of the recognizance referred to in the declaration was not annexed, and no copy of the same was produced at the trial other than Exhibit C, and there was no agreement that Exhibit C was to be treated as a copy."

The defendants now contend (1) that there was not in the declaration "any recognizance set forth, as should be done, by copy of record, as in Com. v. Cutter, 98 Mass. 33"; (2) that the evidence was not sufficient to support an action "because no record of any magistrate was introduced in evidence, nor did any magistrate testify to any record"; (3) that the certificate of the magistrate that the defendants did recognize in due form "was competent evidence only in case the extended record of the recognizance had not been made, which was not shown to be the case"; (4) that, "in an action for breach of a recognizance, the mere production of the magistrate's memoranda and proof of his signature and official station does not make out a prima facie case for the plaintiff"; (5) that "it was necessary also to prove the authority of the magistrate to take the recognizance"; (6) that, "even if there was any recognizance, no breach had been committed by the debtor."

The bill of exceptions is ambiguous, and receives different interpretations by different justices of this court. After the statement that the court refused to rule that, upon the evidence, the plaintiffs could not maintain the action, the bill recites that "the court stated that all questions of law which might be raised on the evidence above were open to said defendants." One construction of this sentence is that among the questions of law which were to be open were the competency and the admissibility of the evidence. But a majority of the court are of opinion that as no objection was made to the admission of any evidence except the testimony that no mittimus was made out, and as no exception was saved to the admission of evidence, and as no request was made for a ruling that the evidence was not competent to prove any fact or facts stated in any of the documents which were put in, the statement that "all questions of law which might be raised on the evidence above were open" should be construed to mean all questions of law upon the evidence, as evidence before the jury; that is to say, all questions as to its probative effect and value. The admissibility of evidence depends so much upon preliminary proof to be made in the trial court, whose decision as to the facts involved in such proof is final, and upon the discretion of that court; and where the question is whether a certain kind of proof is requisite, if some proof is objected to as not the best, the course of allowing an opportunity for the production of the best proof is so much more sensible than to send such questions here that a majority of this court are unable to give to the bill of exceptions a construction under which the admissibility of the evidence can be argued here, when it does not appear to have been raised and passed upon in the trial court. The only question of admissibility there raised was as to the testimony that the clerk of the court had not made out a mittimus. There was in this testimony of the clerk no contradiction of the record of his court. It was simply to a negative, and was immaterial upon the question whether there was a breach of the recognizance.

Thus construing the bill of exceptions, we consider the grounds urged in support of the contention that the action cannot be maintained.

1. The first is that no recognizance was set forth in the declaration by copy of record. This, if true in fact, is not now open, because the question was not raised or passed upon in the superior court.

2. The second is that the evidence was not sufficient, because no record of any magistrate was introduced, nor did any magistrate testify to any record. In the opinion of a majority of the court, this is untenable. The execution was in evidence, and indorsed upon it were the officer's original return, the affidavit, jurat, and court certificate authorizing the debtor's arrest, and an original certificate, signed by the commissioner of insolvency before whom the declaration alleged the recognizance to have been made. The officer's return states that on April 27, 1892, he arrested the debtor by virtue of the execution, "and had him before Henry Austin, Esq., a commissioner of insolvency within and for the county of Suffolk, before whom he recognized with surety for thirty days. (See certificate annexed.)" The certificate of the commissioner of insolvency, which in the bill of exceptions is called "Exhibit C," is as follows:

"Henry Austin, 5 Tremont St., Boston.

"Commonwealth of Massachusetts, County of Suffolk--ss.:

"April 27, 1892.

Execution Certificate of Recognizance.

"I certify that E.C. Mitchell, Jr., the debtor named in the annexed execution, having been arrested, and now held in custody by virtue of said execution by John B. Fitzpatrick, deputy sheriff, is before me to recognize with surety for his appearance before some court having jurisdiction to examine him as a poor debtor, and as provided in chapter 419, Acts of the Year 1888, and chapter 162 of the Public Statutes; and said debtor did then and there recognize in due form, with Edward Carroll, of Boston, county of Suffolk, in the sum of $220.95, that within thirty days from this day he would appear before said court for said examination, first giving notice to the creditor of his intention so to do, as required by law. Henry Austin, Commissioner of Insolvency."

Here are two original statements, each made and signed by a sworn official, which state the circumstances necessary to enable the jury to find that the debtor recognized with the defendant Carroll as surety, as alleged in the declaration. The return, read with the execution and the certificate to which it refers, and the certificate of the commissioner read with the execution to which it also refers, state enough, if their statements are believed, to justify the finding of every fact necessary to maintain the action, if a breach of the recognizance is otherwise proved. These original statements were in evidence, and the question is as to their probative value, and not whether they or either of them were competent, or admissible to prove the making of the recognizance. The question is not exactly the same as if the magistrate before whom such a recognizance had been entered into had died before extending his record, or as if the original record, no copy remaining, had been destroyed. There, if the making of the recognizance is to be proved, it must be otherwise than by the record or by copy. Here there is no allegation or proof that there was no record. It seems that such recognizances are nowhere explicitly required by statute to be made matters of record, nor are they required by statu...