Blood v. Morrill

The opinion of the court was delivered by Redfield, J. The exceptions, taken to the proceedings in this case, are very numerous, and some of them not a little difficult of apprehension. 1. In regard to the recognizance taken by Judge Parker in the vacation, it is said it should have been recorded, in order to make it evidence. By recording, here, is meant enrolling, I suppose. For unless the original taking of the recognizance is a record, the enrolling it, in the manner deeds are enrolled, (which, in common language, is well enough denominated recording,) would hardly make it a record. The enrolling of any paper never makes either the ■ paper, or the enrolment, any more authentic. This is required to be done, in the case of lands conveyed, in order to pass the title, so far as third persons are concerned ; but the original deed, when it can be had, is, after all, considered the best evidence, and is required to be produced, when the party has it in his power. So this recognizance, after being filed, became itself a part of the record; and the idea of enrolling such a paper, either in a criminal or civil case, never entered the mind of any clerk of the county court, I presume. The inspection of this record, as it was in the same court, was the proper evidence. When a bilí of exceptions became necessary, a transcript of the record became important, as a part of the bill; but for any other purpose it would seem to be unimportant. 2. The variance, which is insisted upon, between the declaration and the record, in regard to the appearance of the principal conusor in discharge of the recognizance, is one of substance, and not of form. The question is, substantially, whether, when one appears [605] in court by attorney, and is himself assisting in the conduct of his suit, or defence, he thereby exonerates his bail for' appearance. Nothing is more clear, than that this is no “ rendering ” of the principal in discharge of the recognizance of bail. To effect that, there must be a formal surrender of the principal into the custody of the officers of court, which, must be evidenced by an exoneretur entered upon the record, which, in the English practice, is entered upon the bail piece. In Williams v. Williams, 1 Salk. 98, it is determined, that “The rendering is a discharge in posse as to bail, in three different pending actions, but not complete and actual until exoneretur entered.” In Ward v. Griffith, 1 Ld. Raym. 83, the render of the principal, in discharge of his bail, was entered’in the book of the warden of the Fleet prison, but no committitur being entered in the office, the discharge of the bail was held incomplete, notwithstanding the principal had died in prison ; but a rule was finally obtained'to stay proceedings in the case, upon other grounds. In this case the record of the recognizance is called a “ pocket record,” in contra-distinction to a record remaining in court. That distinction would be without any foundation in our practice. 3. The averment in the declaration, that the county court taxed and allowed the plaintiff’s costs at $18.18, is not made as a part of the description of the record; it is not, therefore, a descriptive allegation, like the allegation in the common form of declaration in debt upon judgment, that the plaintiff recovered so much debt, or damages, and so much costs of suit, but it is a mere averment of a fact, which, when the record is produced, is not verified. The failure of the proof of this averment is no variance, as it would have been, had the failure been in a descriptive averment. 4. The third plea, which is, that the county court had no power to make the order upon a default of the defendant, is not, we think, well founded. An order, in a case for bastardy, may as well be made upon default, as judgment may be rendered in any other case, in a civil action, by default. 5. The plea, that the complaint alleged the proceedings to be under a statute which was in fact repealed, is of no importance. There was no necessity of referring to the statute. The court will take [606] notice of the general statutes of the state. A wrong reference could mislead no one, and could not make the complaint bad, when it would have been good without any reference. Judgment affirmed.