Melvin v. Bird

Gray, O. J. By the Gen. Sts. c. 137, § 9, a defendant appealing from a judgment that the plaintiff recover possession in an action under that chapter, must “ recognize to the plaintiff, with sufficient surety or sureties, to enter the action, to pay all rent then due, all intervening rent, and all damages and loss which the plaintiff may sustain by reason of the withholding of the possession of the demanded premises, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaim tiff, in case the judgment from which the appeal is made is affirmed. Upon final judgment for the plaintiff, all sums of money then due to him may be recovered by writ of scire facias or action of contract upon the recognizance.” It was in accordance with the general rules of pleading that such a recognizance should be enforced, either by writ of scire facias, because it was matter of record in the appellate court, or by action of contract, because it was for a definite sum that might have been recovered by action of debt at common law. Bridge v. Ford, 4 Mass. 641. Curtice v. Bothamly, 8 Allen, 336. Gen. Sts. c. 129, § 1. The St. of 1871, c. 315, § 2, provides that § 9 of the Gen. Sts. c. 137, “so far as it applies to the Municipal Court of the city of Boston, is hereby amended by striking out the word 1 recognize ’ and inserting in the place thereof the words 1 give bond,’ and by striking out the word ‘ recognizance ’ and inserting in the place thereof the word 1 bond.’ ” As applied to the specified [565] class of cases, therefore, the last clause of the Gen. Sts. c. 137, § 9, as amended by the statute of 1871, explicitly declares that “ upon final judgment for the plaintiff, all sums of money then due to him may be recovered by writ of scire facias or action of contract upon the recognizance; ” and thus in effect treats such a bond (as the bond given by bail in a civil action is treated by the Gen. Sts. c. 125, § 8,) as so far a matter of record, and of the nature of a recognizance, that it may be the subject of a writ of scire facias. An appeal from the clerk to a judge of the same court, in the matter of taxing costs after judgment, does not vacate the judgment, as in the case of an appeal to a higher court from the judgment of a lower one; but, if waived before hearing, leaves the judgment in force as of the day when it was entered. It is only in case the appeal from the taxation of costs is heard and determined by the judge, that “the judgment shall be considered as rendered on the day when the costs are finally taxed and allowed.” Gen. Sts. c. 156, § 24. Neither the supposed assignment of the lease, nor the adjudication of insolvency, made before the date of the judgment in the former action, and not pleaded in that action, can affect the validity of that judgment, or the liability of any and all of these defendants by reason thereof. The defendants’ own bill of exceptions states that there was no evidence admitted to which the third instruction requested could apply. Exceptions overruled.