Cook v. Berth

Wells, J.

The verdict for the whole amount of intervening rent, damages and costs, in this case, is warranted by the declaration. The declaration is supported by the proof; provided the amended copy of the recognizance, certified by the magistrate, was properly admitted. No question of pleading or of variance would then arise.

The defendant contends that the paper admitted as the recognizance was not properly so admitted; because

1. It was irregularly placed on file in the clerk’s office; a copy of rscord, including a recognizance duly certified by the magistrate, having previously been filed and become of record in the superior court.

The fact of such previous filing of the supposed record does not prevent the subsequent filing of an amended record, or an amendment of any part of it to correct errors or deficiencies in the first. Commonwealth v. Field, 11 Allen, 488. Commonwealth v. Merriam, 9 Allen, 371.

Upon discovery of the deficiency in the first memorandum of the recognizance certified and sent up by him, it was proper for the magistrate to send up a full and correct one, either upon his own motion, or upon the suggestion or request of the plaintiff’s attorney. Commonwealth v. McNeill, 19 Pick. 127.

The plaintiff’s rights are not lost by the fact that such amended certificate was not filed until after judgment in the superior court in the original action. Hawkes v. Davenport, 5 Allen, 390. Benedict v. Cutting, 13 Met. 181. The minutes of filing in this case, though less full and formal than usual, were sufficient to prove the fact, and make the document a part of the record. If there had been no minutes upon the paper, the fact of filing might have been shown otherwise. Commonwealth v. Merriam, 7 Allen, 356.

The defendant insists that this amendment could not be effectually made without leave of the superior court.

Whenever an amendment of a record or return is found to be necessary in the course of a trial, in which such record or return becomes important, it is allowed to be made, if at all, as an incident of that trial, — provided it belongs to the records of the same court in which the trial is had. The • court has entire control of its own records, and determines conclusively all questions of their truth or correctness. Balch v. Shaw, 7 Cush. 282. Fay v. Wenzell, 8 Cush. 315. In this case the memorandum of recognizance relied on has been recognized and admitted by the superior court as properly oí record in that court. This we think is conclusive upon that point; and is equivalent to a direct authority to make the amendment.

2. The defendant contends that the alleged memorandum of recognizance is contradictory to the record of the case, as certified by the magistrate.

That record, like the original certificate of the recognizance, is imperfect and deficient in not setting out in full the conditions of the recognizance. But it is deficient merely. It is not repugnant. Barringer v. King, 5 Gray, 9. Besides, the later amended certificate is intended to correct the previous imperfect record, by supplying the deficiencies found to exist in the first. It accords with what the statute requires in order to give the appeal effect. The amendment would have been more complete, if it had corrected the error in the certified record of proceedings as well as in the memorandum of recognizance. But that is not absolutely essential.

The certificate of the magistrate is conclusive that the amended memorandum sets out truly the conditions of the recognizance as actually entered into by the parties before him. Tillotson v. Warner, 3 Gray, 574. Saxton v. Nimms, 14 Mass. 315. Tracy v. Jenks, 15 Pick. 465. Wells v. Stevens, 2 Gray, 115. Ames v. Phelps, 18 Pick. 314.

3. It follows, that the oral testimony offered by the defendants to show what were the actual terms of the recognizance entered into was properly excluded. And the testimony of the magistrate, admitted in support of his certificate, was immaterial.

It is not a case of secondary proof to supply the place of a lost 'original. The new certificate is not a substitute for the one first sent up. It has displaced the first, and become itself the recognizance of record. It is the evidence, and the only legal evidence, of the contract entered into before the magistrate; which sontraet is the foundation of the suit.

Judgment upon the verdict.