Marsh v. McKenzie

Hoar, J.

The questions which arise upon the exceptions are these: first, Had the court of insolvency power to make the order contained in the paper marked A? and second, Is it such an amendment of the record as vacates the discharge in insolvency of the defendant, and makes it inoperative for his defence in the suit?

1. We are of opinion that the judge of insolvency had the power to amend the record of his court according to the truth, if the record at first made was erroneous. Such an authority is incident to a court of record; and the court of insolvency is a court of record. Gen. Sts. c. 118, § 1. Batch v. Shaw, 7 Cush. 282 . Fay v. Wenzell, 8 Cush. 315 . Rugg v. Parker, 7 Gray, 172. More exactly in point is the decision in Batty v. Fitch, 11 Gray, 184 .

2. But the difficulty remains, that, on inspecting the full record of the insolvent court, it does not appear that the paper marked A would constitute such an amendment of the record as would be necessary to invalidate the discharge, and such as we presume was intended by the court. It is suggested by counsel, and is probably true, that the whole of the record, which is referred to and made a part of the bill of exceptions, was not brought to the attention of the learned judge before whom the cause was tried in the superior court. The paper A recites that, an examination of the debtor having been ordered, the certificate of discharge was made and delivered to the defendant by the register, by mistake, and in ignorance of the order; and decrees that the discharge is null and void, and directs the debtor to return it to be cancelled. The discharge was signed by the judge; but it is said that this arose from the fact that the register filled up without authority a blank which the judge had signed to be used when it should be required. We *67 cannot regard the practice of leaving such blanks in the possession of the register, signed by the judge, as a safe or proper practice; but, on the contrary, it seems likely to lead to error and irregularities. But if this order would have been sufficient to correct the mistake of the register, if that had been the only one, the record further shows a regular and complete order and decree of the court that the discharge should be granted. The discharge is therefore shown to have issued in pursuance of a decree duly entered; and no amendment has been made of the record by stoking out that decree; which should have been made, if that entry were incorrect and no such decree was really' made by the court. But if the court made that decree, as the record, while unamended, conclusively shows to have been the fact, it is not competent for the court to pass an order annulling the discharge. In other words, though an erroneous record may be amended, a decree actually made and truly recorded cannot afterward be revoked, nor can the proper proceedings which have resulted from it be declared void and cancelled, at the pleasure, of the judge, at a subsequent time, and without notice. Pettee v. Wilmarth, 5 Allen, 144 . Hall v. Marsh, 11 Allen, 563 .

The exceptions must be sustained; and, if the decree that a discharge should be granted was filled up by the register erroneously and without authority, upon a blank signed by the judge, and entered upon the record by mistake, the plaintiff must have the record properly and fully amended, before he can avoid ita effect upon Ms rights. Exceptions sustained.