The opinion of a majority of the court, Whitman C. J. dissenting, was drawn up by
Siiepi.ey J.
The action is debt. The declaration is upon a recognizance as a record of the district court for the middle district. The defendant pleaded nil debit and nul tiel record. [184]*184The case is presented on a report made by the District Judge for the decision of certain legal questions arising there, and having reference to the competency, and to the effect, of the testimony there exhibited to prove the record referred to in the declaration.
It appears by a transcript from the docket of that court, made under an action in favor of the plaintiffs against the Longley Stage Line Company, that the defendant entered into recognizance to the plaintiffs as surety for the prosecution of an appeal by the defendants in that action, made from a judgment of that court, during its term in the month of August, 1840. The clerk of the courts deceased without having extended the recognizance. Nor was it found extended in the record of that action among the records of the proceedings of that court. Before the commencement of this action, the present clerk extended the recognizance and affixed to it the name of the deceased clerk, and transmitted an attested copy of it, as a copy of the record, to the attorney of the plaintiff. This copy was presented and received without objection, as proof of the existence of the record. The defendant presented the minutes of the clerk made upon the docket under that action; and the record of that action as made in the records of that court.
The counsel for the plaintiff contends, that such copy of the record, attested by the clerk, was conclusive evidence of the existence of the record ; and that the testimony of the clerk, stating the manner of making the record was not admissible.
The record to be proved was a record of the court, before which the proof was to be made. In such case the regular course is to make the proof by a production and an inspection of the record itself. In this case, the court would not thereby be informed of the existence of any extended récord of the recognizance. On the contrary, the genuineness of the paper purporting to be an attested copy of such a record, would be disproved, and its legal effect .destroyed. That court might have directed the present clerk to complete the imperfect records of the deceased clerk, and the record thus made up, [185]*185might have been made valid without the use of the name of the former clerk in an unauthorized manner. But no such direction appears to have been sought or obtained.
The plaintiffs, to maintain their action, must depend upon the effect, of the evidence arising out of the minutes of the deceased clerk, made upon the docket, and the reference to a recognizance contained in the record of the action. The minutes of a deceased justice of the peace, made upon his docket, have been regarded as substantially a record of his proceedings, and as satisfactory proof of a judgment rendered by him, in a civil action. Baldwin v. Prouty, 13 Johns. R. 430; Davidson v. Slocomb, 18 Pick. 464. Shaw C. J., in delivering the opinion of the Court in the case of Pruden v. Alden, 23 Pick. 184, says, “ the Court are to take notice how the records of their own and of other Courts, are in fact made up. Tiie clerk entrusted with the duty of keeping records must, of necessity, take down the doings of the Court, in short and brief notes; this he usually does in a minute book, called the docket, from which a full, extended and intelligible record, is afterward to bo made up. But, until they can be made up, these short notes must stand as the record; and if in the mean time, through the death or sickness of the clerk or other casualty, they are lost, it must be deemed a loss of the records, and secondary proof may be offered of their contents.” This doctrine, in its proper practical application, can do no injustice; for the clerk is subject to the control of the Court, in making up the record from the minutes taken by him; and the same Court, can as well be informed of the substance of the record by the minutes, as by the record made up from them by its direction. When proof of the existence of a record, is to be made before the same Court, that arising from the minutes of the clerk properly made, may be nearly, if not quite, as satisfactory, as that derived from an extended and completed record.
From the short minute of the clerk in this case, that the defendant “recognizes in $100,” the Court, in which it was made, would be informed, that he had entered into such [186]*186a recognizance as the law then required, in the sum of $100, to be extended according to the usual form and course of proceeding in that court; and such a record would accordingly be considered as proved by the minute of the deceased clerk, until a more extended and perfect one could be made.
To such a conclusion, this objection is made by the defendant, that the record of the action states, that he entered into ■ recognizance to prosecute the appeal “with effect;” and that such a recognizance would be at variance with one provided for, by the statute, c. 373, § 4, requiring, that it should be “ to prosecute his appeal and to pay all such costs as may arise in any such suit after such appeal.”
While the record of the action thus states, it further states, that he entered into recognizance “as the law directs.” If the clerk misapprehended the law and erroneously made use of the word effect, such an error in the record of the action would not affect a record of the recognizance as proved by the minutes. The latter would be the true record of it, the former but a reference to it, stating, it may be, its contents in one particular, erroneously. In the case of Thurston v. Slatford, 1 Salk. 284, Holt C. J., speaking of a record, remarked, “ if there be a mis-entry, it might be supplied and corrected by other evidence, for he should not be precluded by the mistake or negligence of the officer.” By other evidence he doubtless intended such other evidence as might be legal and appropriate to the purpose.
A further objection is, that the recognizance was not, and was not alleged to have been, returned to, and entered of record in this Court.
Recognizances are of different descriptions, and they are entered into for different purposes. They are by our law entered into before courts of record and constitute a part of their proceedings to be recorded; and before justices of the same courts, acting ministerially by virtue of authority conferred upon them by statute for that purpose. They are entered into before justices of the peace, when there are proceedings between parties pending before them, and when there are no such pro[187]*187ceedings. In criminal cases a recognizance may be entered into before a justice of the peace, conditioned to keep the peace, or to appear before some court, to answer to such matters as may be alleged against him, or to testify as a witness, or-to enter and prosecute an appeal. They may also in such cases, be entered into before courts of record, conditioned to appear before the same court from day to day, or at a day fixed by an adjournment of the same term, or at the next term. If the recognizances last named are not matters of record in the courts, in which they are taken, they cannot become matters of' record in any court.
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The opinion of a majority of the court, Whitman C. J. dissenting, was drawn up by
Siiepi.ey J.
The action is debt. The declaration is upon a recognizance as a record of the district court for the middle district. The defendant pleaded nil debit and nul tiel record. [184]*184The case is presented on a report made by the District Judge for the decision of certain legal questions arising there, and having reference to the competency, and to the effect, of the testimony there exhibited to prove the record referred to in the declaration.
It appears by a transcript from the docket of that court, made under an action in favor of the plaintiffs against the Longley Stage Line Company, that the defendant entered into recognizance to the plaintiffs as surety for the prosecution of an appeal by the defendants in that action, made from a judgment of that court, during its term in the month of August, 1840. The clerk of the courts deceased without having extended the recognizance. Nor was it found extended in the record of that action among the records of the proceedings of that court. Before the commencement of this action, the present clerk extended the recognizance and affixed to it the name of the deceased clerk, and transmitted an attested copy of it, as a copy of the record, to the attorney of the plaintiff. This copy was presented and received without objection, as proof of the existence of the record. The defendant presented the minutes of the clerk made upon the docket under that action; and the record of that action as made in the records of that court.
The counsel for the plaintiff contends, that such copy of the record, attested by the clerk, was conclusive evidence of the existence of the record ; and that the testimony of the clerk, stating the manner of making the record was not admissible.
The record to be proved was a record of the court, before which the proof was to be made. In such case the regular course is to make the proof by a production and an inspection of the record itself. In this case, the court would not thereby be informed of the existence of any extended récord of the recognizance. On the contrary, the genuineness of the paper purporting to be an attested copy of such a record, would be disproved, and its legal effect .destroyed. That court might have directed the present clerk to complete the imperfect records of the deceased clerk, and the record thus made up, [185]*185might have been made valid without the use of the name of the former clerk in an unauthorized manner. But no such direction appears to have been sought or obtained.
The plaintiffs, to maintain their action, must depend upon the effect, of the evidence arising out of the minutes of the deceased clerk, made upon the docket, and the reference to a recognizance contained in the record of the action. The minutes of a deceased justice of the peace, made upon his docket, have been regarded as substantially a record of his proceedings, and as satisfactory proof of a judgment rendered by him, in a civil action. Baldwin v. Prouty, 13 Johns. R. 430; Davidson v. Slocomb, 18 Pick. 464. Shaw C. J., in delivering the opinion of the Court in the case of Pruden v. Alden, 23 Pick. 184, says, “ the Court are to take notice how the records of their own and of other Courts, are in fact made up. Tiie clerk entrusted with the duty of keeping records must, of necessity, take down the doings of the Court, in short and brief notes; this he usually does in a minute book, called the docket, from which a full, extended and intelligible record, is afterward to bo made up. But, until they can be made up, these short notes must stand as the record; and if in the mean time, through the death or sickness of the clerk or other casualty, they are lost, it must be deemed a loss of the records, and secondary proof may be offered of their contents.” This doctrine, in its proper practical application, can do no injustice; for the clerk is subject to the control of the Court, in making up the record from the minutes taken by him; and the same Court, can as well be informed of the substance of the record by the minutes, as by the record made up from them by its direction. When proof of the existence of a record, is to be made before the same Court, that arising from the minutes of the clerk properly made, may be nearly, if not quite, as satisfactory, as that derived from an extended and completed record.
From the short minute of the clerk in this case, that the defendant “recognizes in $100,” the Court, in which it was made, would be informed, that he had entered into such [186]*186a recognizance as the law then required, in the sum of $100, to be extended according to the usual form and course of proceeding in that court; and such a record would accordingly be considered as proved by the minute of the deceased clerk, until a more extended and perfect one could be made.
To such a conclusion, this objection is made by the defendant, that the record of the action states, that he entered into ■ recognizance to prosecute the appeal “with effect;” and that such a recognizance would be at variance with one provided for, by the statute, c. 373, § 4, requiring, that it should be “ to prosecute his appeal and to pay all such costs as may arise in any such suit after such appeal.”
While the record of the action thus states, it further states, that he entered into recognizance “as the law directs.” If the clerk misapprehended the law and erroneously made use of the word effect, such an error in the record of the action would not affect a record of the recognizance as proved by the minutes. The latter would be the true record of it, the former but a reference to it, stating, it may be, its contents in one particular, erroneously. In the case of Thurston v. Slatford, 1 Salk. 284, Holt C. J., speaking of a record, remarked, “ if there be a mis-entry, it might be supplied and corrected by other evidence, for he should not be precluded by the mistake or negligence of the officer.” By other evidence he doubtless intended such other evidence as might be legal and appropriate to the purpose.
A further objection is, that the recognizance was not, and was not alleged to have been, returned to, and entered of record in this Court.
Recognizances are of different descriptions, and they are entered into for different purposes. They are by our law entered into before courts of record and constitute a part of their proceedings to be recorded; and before justices of the same courts, acting ministerially by virtue of authority conferred upon them by statute for that purpose. They are entered into before justices of the peace, when there are proceedings between parties pending before them, and when there are no such pro[187]*187ceedings. In criminal cases a recognizance may be entered into before a justice of the peace, conditioned to keep the peace, or to appear before some court, to answer to such matters as may be alleged against him, or to testify as a witness, or-to enter and prosecute an appeal. They may also in such cases, be entered into before courts of record, conditioned to appear before the same court from day to day, or at a day fixed by an adjournment of the same term, or at the next term. If the recognizances last named are not matters of record in the courts, in which they are taken, they cannot become matters of' record in any court. In civil proceedings, recognizances are-entered into before justices of the peace, when they constitute a part of the proceedings before them, conditioned to enter and prosecute an appeal made to the district court; and when no such proceedings are before them, conditioned to enter and prosecute an appeal made from the district court to this Court. Rev. Stat. c. 97, § 14, as amended by the act of 1841, c., 171. They may bo entered into before the district court,, conditioned to enter and prosecute an appeal made to this: Court.
Any attempt to show, that there is one general rule of law-applicable alike to all these different kinds of recognizances, by which they are to be decided to have been all taken by a court or magistrate acting ministerially or otherwise, or to have been matters of record or not matters of record before the tribunal or magistrate taking them, must lead to an erroneous conclusion.
To avoid such a conclusion it is necessary to notice the different kinds or classes of recognizances, upon which some of the judicial decisions have been made.
In the case of Bridge v. Ford, reported, 4 Mass. R. 641, and 7 Mass. R. 209; and in the case of Libby v. Main, 2 Fairf. 344, the recognizances were taken by a justice of the-peace, before whom a civil action was pending; and they were-conditioned to enter and prosecute an appeal. The decision-was, that the recognizances should appear to have been returned to and to have been entered of record in the appellate [188]*188court, to enable the party to maintain an action of debt upon them.
A recognizance is an obligation of record, to be proved by the record. It is not signed or sealed by the party entering into it. It is of a higher character than a specialty. Courts held by justices of the peace, not being courts of record, there could be no legal proof made of the recognizance as a record in those cases without the proof required. That this is the principle upon which those decisions were made, is apparent. Parsons C. J. says, “ this recognizance must be matter of record, and in debt upon it the defendant may plead nul tiel record. Whenever therefore a justice recognizes a party to appear at any court of record, it is his duty to transmit the recognizance to that court, that it may be entered of record. ” It is clearly implied to be his duty to do so, because it could be a matter of record only by such a course. He did not state or intimate, that a recognizance taken by a court of record must be transmitted to the appellate court, that it may become a matter of record. On the contrary, when speaking of the forms of declarations in actions of debt, he says “ in all [such forms] the recognizance is alleged either to be taken by a court of record or to be delivered to the court and recorded.” After the declaration had been amended by declaring upon the recognizance as taken before the justice and produced, and upon it as a record remaining with the justice, the court decided, that the action could only be supported by a declaration upon it, as a record of the court of common pleas; obviously because it could not become a matter of record before a court, which was not a court of record. The case of Libby v. Main, was but an affirmance of the same doctrine.
The recognizance in the case of The People v. Van Eps, 4 Wend. 387, does not appear to have been taken by a court of record or in any court. It was entered into before the first Judge of a county court, conditioned for the appearance of a person at the next court of oyer and terminer to answer to such matters as might be alleged against him. An action of debt was commenced upon it. Mr. Justice Sutherland, in the [189]*189opinion, says, “ but the declaration appears to me to be defective in not averring, that the recognizance was ever filed or made a record of any court. It does not, strictly speaking, become a recognizance or debt of record, until it is filed or recorded in the court, in which it is returnable.” This is a correct position, when applied, as in that case, to a recognizance taken by a Judge acting simply by virtue of power conferred by statute and not as a court of record.
The question presented in this case, is, whether a recognizance taken in the district court, being a court of record, conditioned to enter and prosecute an appeal made to this Court in a civil action, becomes a part of the record of the case in the district court.
By the act approved February 25, 1839, c. 373, in force when it was taken, it is provided, that “ the party so appealing, before such appeal be allowed, shall recognize with sufficient surety or sureties to the adverse party.” The Court must therefore act judicially in taking the recognizance, in deciding upon the sufficiency of the sureties, and in the allowance or disallowance of the appeal. And these acts must necessarily constitute a part of the record, by which alone it can be legally proved or judicially known, that the action has been legally transferred from that court to this Court. The paper called the recognizance, as it is drawn and certified by the clerk, recites the proceeding as an act of the parties, performed before the Court. This paper has in itself no validity, except as a transcript of the record; and it does not, except as such, constitute any legal proof, that a recognizance was taken. It is the Court, that takes the recognizance by a verbal declaration made by the party in language dictated by the Court, and spoken through its clerk, and to be recorded by its clerk. This record is the recognizance as entered of record.
According to the English practice, which constitutes the basis of ours, there does not appear to be any such separate paper, when a recognizance is entered into in open Court. When one is entered into, in the nature of bail before a magistrate or commissioner, a paper denominated a bail piece is [190]*190returned to the Court where the action is pending, to become a matter of record there. But when bail above is put in, that is, when it is entered in Court by a recognizance there taken, the act does not appear to be exhibited or verified by any separate paper. 2 Sellon’s Pr. 138 to 143. Tidd’s Pr., forms 94, 99, 101, 102. When a recognizance is taken before a commissioner and transmitted to the court, it is there extended at large upon the record, and it acquires validity as a record by-being received and entered of record by the Court. 3 Bl. Com. Appendix, No. III. $ 5.
In the case of the Commonwealth v. McNeil, 19 Pick. 127, the suit was scire facias upon a recognizance entered into in the police court, conditioned, that the principal should appear to answer before the municipal court; and it was transmitted to the latter court and entered of record there; and was estreated into the court of common pleas, in which the action was commenced. The first record of the recognizance transmitted from the police to the municipal court was defective. Upon a motion suggesting a diminution of the record, a more full and perfect record was transmitted from the former to the latter court. This course was approved by the Supreme Court, where it was treated as a record of the police court, -in which it was taken. Shaw C. J. says, “ had the justices from any source ascertained, that they had sent an imperfect record, they would have been at liberty within a reasonable time to have sent a more perfect one.” Here is a recognizance entered into in the police court conditioned for the appearance of the party in another court, where it was entered of record, decided to be a record of the court, in which it was taken, and liable as such to be amended on suggestion of a diminution of the record. This could not be, if the police court acted ministerially and not judicially in taking it. There could be no record of it in the police court, if there be no record of a recognizance, until it be entered of record in the court where the principal is to appear or is to perform some act required by it.
In the case of Vallance v. Sawyer, 4 Greenl. 62, the suit was scire facias upon a recognizance, taken in the court of [191]*191common pleas, conditioned to enter and prosecute an appeal made to this Court, to which the recognizance was returned and entered of record ; and in which the suit upon it, was commenced. In defence, it was insisted, that the suit should have been commenced in the court of common pleas. Mellen C. J. says, the usage has invariably been, to issue it from that Court, to which the appeal is made, for the prosecution of which, the recognizance is taken, and to which the same is properly returned ; and where the final judgment is rendered, for the total or partial satisfaction of which, recourse is had to the sureties in the recognizance, there is the record of such judgment.. The very language of the writ, “ as to us appears of record,” shows this. In addition to the reason of the thing, the authorities cited by the plaintiff’s counsel, are decisive of the question. The decision was doubtless correct, that the suit might be maintained in this Court, founded upon the record there made. Neither the reasoning, nor the authorities cited, authorize a conclusion, that there was no record of the recognizance in the court of common pleas. The record made in one court, often becomes also a part of the record of another court, to which it is transmitted or removed. The case does not decide, that the recognizance did not constitute a part of the record in the court of common pleas, or that an action could not have been maintained upon it in that court.
It is said, that the recognizance should not only be transmitted to the appellate court, but the default should be there entered of record. When a party fails, in a case like the present, to enter his appeal, there can be no further entry in the appellate court, than a judgment, affirming that made in the lowrer court. In the case of Bridge v. Ford, 4 Mass. R. 643, Pahsons C. J. says, “ in a recognizance to the party, it may not be necessary, that the breach of the condition be a matter of record, as it is, when the recognizance is to the Commonwealth, who can take only by record.” But respecting this last position, the Court gave no opinion. In the case of the People v. Van Eps, Mr. Justice Sutherland says, “ it ought also to have been averred, that the default of the [192]*192principal for not appearing, was entered of record, though this omission, would not of itself be fatal, as it is averred, that he was called and did not appear.” No authority cited, or brought to' the notice of the Court shows, that the breach of a recognizance, entered into, conditioned to prosecute an appeal made in a civil action, can be proved only by a default entered of record in the appellate court.
If the record declared upon in this case be proved to exist as a record of the Court, in which the recognizance was taken, it proves the other issue also, that the defendant was indebted to the plaintiffs. Defendant to be defaulted.