Martin v. Campbell , 120 Mass. 126 ( 1876 )

Ames, J.

The act of recognizing, in order to give to a party an appeal from the judgment of a justice of the peace in a civil action, is performed by assenting to the words of the magistrate, to the effect that the conusors acknowledge themselves to be in« debtcd to the other party in a specified sum, to be. paid if the party appealing fails to enter and prosecute his appeal. A brief minute of the transaction is entered on the record, in order that a more full memorandum may be prepared when it is wanted. This memorandum is not itself the recognizance, although it is not unfrequently so called, as it has been in this case. When it is sent, with copies of the case, to the court appealed to, it operates as a return of the recognizance to that court. Strictly speaking, it should not be certified as a copy, because being merely a certificate of an act of the party in court, and not of a bond or contract in writing, there is no original of which it can be said to be a copy. But the attestation, though unnecessary, cannot vitiate the proceeding, and the court appealed to still has the official certificate of the magistrate that the fact therein described did occur before him, and the words “A true copy. Attest,” may be treated as surplusage. The plaintiff, having filed the appropriate papers, and obtained an affirmation of the judgment, upon the failure of the original defendants to enter their appeal, no further judgment of forfeiture, or order that the recognizance be estreated, was necessary to enable her to enforce it by suit. Cook v. Berth, 108 Mass. 73. Benedict v. Cutting, 13 Met. 181.

The point that the recognizance was not binding upon the wife was not insisted upon at the argument. She and her husband were joint defendants in the original suit, and no objection that they were improperly joined was there taken. There certainly is not enough disclosed in this report to show that she was not liable on the recognizance; Curtice v. Bothamly, 8 Allen, 336 ; and it may well be doubted whether at this stage of the case the surety can take that objection.

The objection that it does not appear upon the face of the recognizance that the magistrate had jurisdiction of the case in which it was taken, cannot be sustained. The condition of the recognizance describes the original case as “ a personal action ” in which the plaintiff recovered judgment against the original defendants for the possession of a piece of land, and makes it apparent that they were sued as tenants, and binds them to the payment of rent due and to become due. This is sufficient to show that it was a case under the Gen. Sts. c. 137, §§ 5-9, and that the magistrate had authority and jurisdiction to take the recognizance. Benedict v. Cutting, ubi supra.

Neither is there any ground for saying that the recognizance undertakes to'impose any burden not required by the statute. It is true that it is not in the exact words of the statute, but it is substantially in conformity to its meaning, and there is no material discrepancy. Shaw v. McIntier, 5 Allen, 423. The expression “ rent to become due,” as used in the condition, can only be understood to mean “ intervening rent.”

As to the allegation of fraud, none is suggested to which the plaintiff was a party, or which, for that reason, could affect her right of action. All the points relied upon by the defendant at the argument are therefore disposed of, and his

_Exceptions are overruled.