Sewall v. Sullivan , 108 Mass. 355 ( 1871 )

Gray, J.

A recognizance taken by a magistrate, under the Gen. Sts. c. 124, §§ 10, 11, of a poor debtor arrested on mesne process or execution, is not required to be returned to any court. Thacher v. Williams, 14 Gray, 324. Before the record has been extended, the minutes of the magistrate, like the clerk’s docket of the proceedings in an action at law, are competent evidence of the taking of the recognizance. Townsend v. Way, 5 Allen, 426. Any mistake in the record might be amended by the magistrate who took it, as in the case of a recognizance taken before a commissioner and returned into court. Dike v. Story, 7 Allen, 349. Commonwealth v. Field, 11 Allen, 488. But the record of the taking of the recognizance, when extended, cannot be contra-dieted by paroi evidence in an action thereon. It was therefore rightly ruled that the evidence offered by the defendant was incompetent to control or impeach the record of the magistrate.

As the recognizance was not returnable or returned to the superior court, the proper form of remedy was by action of contract, and not by writ of scire facias, which can only issue from the court having the record on which it is founded. Gen. Sts. c. 124, § 46. Green v. Dana, 13 Mass. 493. Osgood v. Thurston, 23 Pick. 110. Judgment cannot therefore be rendered for the plaintiff upon the writ in its present form. But the courts having jurisdiction of the subject matter are authorized by statute to allow amendments changing the form of action at any time before final judgment. Gen. Sts. c. 129, §§ 34, 41. Stone v. Chamberlain, 7 Gray, 206. Merrill v. Bullock, 105 Mass. 486. The plaintiff may therefore be allowed to amend in the superior court by changing his writ of scire facias into the ordinary form of a writ and declaration in an action of contract, and, after such amendment, take

Judgment on the verdict.