State v. . Cherry , 13 N.C. 550 ( 1830 )

FROM MARTIN. The copy of the record transmitted to the Supreme Court contained a copy of a recognizance for $200, entitled, "In the County Court of Law, _____, 1828," for the appearance of Cherry, "at March Term," and stated to be "entered into and taken in open Court, _____, 1828," and also an entry made at December Term, 1828, as follows: "Job S. Cherry, etc., recognized in the sum of $200, for the appearance of Job S. Cherry at the next term of this Court, on the second Monday of March, then and there," etc. (551)

In the Superior Court, upon the motion of the Attorney-General and a suggestion of diminution, a certiorari issued to the County Court, to which a return was made, That at April Term, 1830, of the County Court, the following order was made: "Ordered by the Court, that a paper writing, purporting to be a recognizance between the State of North Carolina and Job S. Cherry, be amended, by adding thereto the words, ``December Term, Court of Pleas and Quarter Sessions,' in the caption thereof, and the figures ``1829,' in the body thereof, and also, ``December Term, 1828,' above the teste."

His Honor, Judge DANIEL, upon an inspection of the record, and the return of the certiorari, affirmed the judgment of the County Court, and the defendants appealed. There is no ground for the objection that the Superior Court proceeded to the trial before any sufficient return to the certiorari. That writ was improperly issued, as there was no defect in the transcript of the appeal, but only in that of the recognizance. The latter is no part of the record of the appeal, but is a distinct record, to be used as evidence on the trial of the appeal. The copy of that was not needed to bring the cause into the Superior Court. When the cause got there, it was necessary proof. If the Attorney-General had received a defective copy, or a defectively certified copy, he was at full liberty to supply it by a new one without a certiorari. For aught we know, he did. The evidence on which the Court below acted is not stated in the case; and perhaps this Court ought, in strictness, to affirm the judgment, (552) without saying more, since we do not see the error.

But if we are to take the recognizance, as stated in the transcript from the County Court, to be that used as evidence in the Superior Court, it will remain to be considered whether it sustains the judgment.

The scire facias alleges a recognizance entered into in Martin County Court, at December Term, 1828, for the appearance of Cherry at March Term, 1829, of the same Court. The cause now stands on the single issue of nultiel record. In the transcript two entries appear at December Term, 1828. One of them made shortly on the docket of recognizances, thus: "Job S. Cherry, etc., recognized in the sum of two hundred dollars each, for the appearance of Job S. Cherry at the next term of this Court, on the second Monday of March next, etc. See recognizance." The other inserted either on the general minutes of the Court, or drawn up separately, purporting to be a formal recognizance, entered into in Martin "County Court of Law, 1828," without saying at what term, and to be conditioned for Cherry's appearance "at March Term," without saying of what year. At the foot it is certified by the clerk to have been entered in open Court. After the appeal from the County Court, that Court ordered this latter paper to be amended by inserting, "December Term, 1828," both in the caption and at the foot, as the time of acknowledgement, and "1829" in the body of it as the year, in the March Term of which Cherry was to appear.

It is objected, that without the amendments, the recognizance would not conform to the scire facias; that they could not be made; or if they could, not after appeal. In England, all recognizances to the King are sued in the same Court. When forfeited, they are estreated and sent to the Exchequer. The original goes, and it must then be perfect, because there is nothing in that Court by which it can be amended; nor has the Court or magistrate who took it the power to amend, since the record is beyond their control. But, when entered into (553) before a magistrate in the county, he need not make up the record, technically speaking, at the time. He enters it in his book, and afterwards draws it out on parchment and files it in the proper Court. Yet it is a matter of record, by relation, from the time it was acknowledged. (1 Chitty, C. L., 72.) Some person must be entrusted with such duties; and the law supposes the integrity and responsibility of its judicial magistrates a sufficient warrant that the record, as made up, will speak the truth. It cannot be supposed that the note of it "in the book" of the magistrate contains a full copy of the recognizance, as afterwards engrossed on parchment. Yet, being made up, it is a record, and no averment can be made against it. It cannot be alleged that the party never entered into a recognizance, nor that, as made up, it varies from the original note of it. Until the magistrate parts finally from it, he may give it what from he likes, and he may rightfully give it any form consistent with the truth. After the filing of it, he cannot, either in England, or this State, alter it, for it has gone from him.

But this is not the case with recognizances acknowledged in our Courts. They are not commonly to be originally proceeded on in another Court, but only in that which takes them. They are not made up in separate parchments, but notes of them are made on the minutes. As they are not contracts executed by the parties, such notes are sufficient, and from them formal recognizances may be drawn out at any time. If suits on them be removed to another Court by appeal, the original recognizance, as a distinct record enrolled by itself, is not sent up. Our law knows no method of removing the original record from one Court to another. Copies are used. If a defective transcript has been made, or the recognizance itself defectively drawn up from the note, there is no reason why the Court should not supply the latter defect by (554) having it truly and in legal form engrossed, and the clerk the former by giving a new copy. Neither is an original, but both purport to be copies. Another Court cannot know that a copy sent to them is not a true copy. The transcript is to them the record, and is conclusive evidence. If at first it was defective, it makes no difference; for the appellate Court does not enquire what reason the first Court acted on; but whether sufficient evidence is before itself upon a trial de novo. One Court cannot falsify the record of another Court, and for that purpose look at a variance between the recognizance as made up and certified, and the original note of it. The Superior Court cannot enquire whether the County Court ought to have made up such a record, but whether it did make it up. A record states the matters of fact which occur in Court. Only that Court in which they occur can know what they are. If the clerk makes a slip in drawing it up defectively, or does it falsely, as by inserting a different sum that the Court, the whole record being still with them, may have it properly enrolled, by reference to the first note of it, is a position which is proved by the stating of it. Justice to all persons requires such a power, and the exercise of it. The probity of the judge is our assurance in this, as in other cases, of the verity of our judicial proceedings. If it can be done before an appeal, it may be afterwards. Amendments are constantly allowed after error, to which effect numerous cases are collected in a late edition of Tidd's Practice, p. 770, and the Court of error often waits, even for the amendment to be made in the Court below. I conclude that there was nothing improper either in the amendments, or the time of making them.

But if there were, their propriety could not be questioned in a collateral proceedings. This is not an appeal from the order of (555) amendment, but from a judgment in a suit on the recognizance. Though had it been the former, this Court could not help the defendants; for, as I have before said, one Court cannot alter or question the record of another as to matter of fact.

Yet, if the amendment had not been made, the Court is of opinion that enough appeared. The time when a recognizance is entered into sufficiently appears by its being entered as of a particular term. The entry itself is evidence of that to the Court taking it, and to another Court it appears, as many other matters do, by a separate caption. The time of appearance is expressly mentioned in the first note, set out in the transcript. Upon every point, therefore, the judgment below must be affirmed.

PER CURIAM. Affirmed.

Cited: S. v. Reid, 18 N.C. 381.