Elliott v. Green

10 Mich. 113, 1862 Mich. LEXIS 26

• Court: Michigan Supreme Court
• Decided: April 29, 1862
• Status: Published

Opinion

Campbell J.:

The first question presented is whether under rule 79 the Court below was at liberty to receive evidence to disprove the execution of the undertaking of bail sued upon, without an affidavit filed with the plea.

We are of opinion that this rule is not applicable. It was designed to cover cases of private instruments, and not such undertakings in the course of justice as are at least prima facie evidence of themselves when produced. The instrument sued upon is called by the statute a recognizance, and a scire facias is one of the means of enforcing it. Although it is in one sense a written instrument, yet we do not think -the rule referred to' reaches it.

It was objected however, that, being a matter of record, it can not be assailed in any way. How far a record is conclusive evidence, and how far only prima facie evidence, depends very much on the nature 'of the record, and very much also on the tribunal from whose action it derives its validity. The ease before us, had it shown what evidence was offered to assail the recognizance, and upon what specific points, might possibly have called for an investigation of these questions. But it appears that the genuineness of the document was the only question in controversy, and inasmuch as the particular evidence offered does not appear, we can not presume it improper if any at all was receivable. There is no record which can not be assailed as not genuine. And where any portion of a pretended record has been forged or altered, it would be absurd to hold that a party who would be bound by the record if genuine can not dispute it. This would make the act of a private forger, and not the act of a court of justice, import absolute verity.

We think the genuineness of the recognizance was fairly in issue, and that there was no error in permitting proof upon it.

The judgment below must be affirmed with costs.

Martin Cii. J. concurred.

Manning J.:

The recognizance is not taken in open Court, but is signed by the bail and acknowledged before an officer out of court. It is then filed in the cause, and becomes a record. The signatures of the bail and the officers taking the acknowledgment, as I understand the statute, are a necessary part of the recognizance; so much so that it would be worthless without them. If I am correct in this, in an action against the bail the genuineness of the signatures may be controverted, not to contradict the record, but to show that what on its face purports to be a record is not a record. The '¡'9th rule of the Circuit Court is inapplicable to the case.

Christiancy J. concurred in these opinions.

Judgment affirmed.