Perkins v. Walker ( 1844 )

The opinion' of the court was delivered by

Royce, J.

The motion to have the writ abated was met in the county court by a parol demurrer. And, as the motion does not profess to bring the writ before the court by any express reference to it, it is contended that the demurrer has admitted the truth of the allegations contained in the motion, without regard to what may appear upon the writ itself. But, however this might be in the case of a formal plea in abatement, we think that upon this motion the process is tacitly referred to. The language of the motion is therefore taken to mean, that upon the face of the original proceeding no legal- and sufficient recognizance appears to have been taken. "

The question, then, is upon the sufficiency of the minute of the recognizance made and signed by the magistrate upon the writ. And here the only objection is, that the names of the persons recognized do not sufficiently appear. It is urged, that the names inserted in the minute must be understood1 lo constitute the name of some partnership firm, and not to express the names of individual persons. But this is more than the court ought judicially to infer from the minute alone. The import is, that two persons, of the names of Needham and Dennis, became duly recognized before the magistrate. And although it be presumed that those persons had Christian names, which are here omitted, it does nol follow, as we think, that the writ should be abated. That clause in the statute, which visits this severe consequence upon the plaintiff in a suit, should evidently be limited to cases where the entire minute of recognizance, or some essential part of it, is wholly omitted. The name of the person recognized is, to be sure, an essential part of the minute; but in this instance it is not wholly omitted. Enough is given, not only to apprise the defendant that security for his cost has been taken, but to enable him with little or no trouble to ascertain the individuals recognized. Should an amendment of the minute in this particular be deemed important, I should have little doubt that the magistrate should be permitted to make it. An addition of the Christian names would effect no change in the minute as to persons or subject matter; and that addition must of course take place, when a record of the recognizance is drawn up in form.

If we assume that Needham and Dennis were indeed partners at the time of entering into the recognizance, that fact can be of no avail in support of the motion. We cannot presume that the recognizance was regarded as a mere partnership transaction, and given by one partner in the name of both ; and without this presumption the union of their names, according to the partnership style, does but furnish the better evidence to designate the individuals recognized.

Judgment reversed, and the cause remanded.