Learnard v. Bailey

Chapman, C. J.

The recognizance upon which this action is brought was taken before a master in chancery, and recites that Goodfellow, the principal, had been taken on a writ issued out of the Superior Court, and brought before him. It was necessary to prove the authority of the magistrate to take the recognizance, and if he acted beyond the limits of his jurisdiction the proceedings were coram non judice and void. Piper v. Pearson, 2 Gray, 120 . His recital in the recognizance was evidence of what took place before him, but not of facts supposed to have occurred in his absence, and constituting the authority of the officer to make the arrest.

A question has arisen in this case whether the writ was a copias, and it was a question to be decided by the judge who tried the case. The writ was on file in his own court, and it must be tried by inspection of the writ. His decision as to what the writ contained was not subject to exception. Commonwealth v. Davis, 11 Gray, 4 . Ives v. Farmers’ Bank, 2 Allen, 236 . He decided that the words in the writ, “ for want thereof to take the bod ,” which are found in printed blanks and constitute the copias clause, had been erased. And he excluded the evidence offered by the plaintiffs that the line drawn through the words was accidentally drawn; that it was immediately rubbed through with *163 the finger for the purpose of erasing it; that it was the design of the attorney to leave the copias clause in the writ; that the officer and the magistrate acting under the writ had proceeded as upon a copias, and that other facts had occurred subsequently upon the idea that it was such. It is contended that this evidence should have been admitted. But the evidence by inspection would naturally be presented first. If the judge had found upon inspection that it was doubtful whether there was an erasure or some discoloration which might be an erasure or something less than an erasure, evidence would be admissible as to how it was done and with what intent. But as it was for him to decide what the alleged erasure was, so it was for him to decide conclusively whether any of the evidence offered was material. There appears to have been no question that the act was done at the time when the blank was filled, and before the writ was issued. If he was satisfied that the erasure existed, the other evidence could furnish no aid in determining the matter before him.

Having decided that the writ contained no copias, he properly decided that the arrest was illegal. He was requested to rule that the defect, if any, might be rectified in accordance with the provisions of the Gen. Sts. e. 129, § 42, but he ruled that it was not within the provisions of that statute. This ruling was correct; for as the defect continued to exist until after the arrest and the taking of the recognizance, these acts would be void, and no subsequent amendfnent could give validity to them or to the recognizance. The verdict was properly directed for the defendant.

Exceptions overruled.