
    Bias and Another v. Floyd, Governor.
    July, 1836,
    Lewisburg.
    (Absent Brooke, J.)
    Recognizance— interlineations — Scire Facias — Variance. — under tbe act 1 Kev. Code, ch. 169, § 2, allowing a prisoner to be bailed to appear and stand bis trial at tbe superiour court, a justice of tbe peace took a recognizance from a prisoner, with sureties, conditioned for bis appearing to do wbat should be injoinedhim by tbe court: after tbe recognizance bad been so taken, words were interlined by tbe justice, specifying tbe charge against tbe accused: and the scire facias upon the recognizance described it as though the interlined words bad formed a part of it originally. Held, that upon a rule for tbe purpose, tbe recognizance may be amended by striking out tbe interpolated matter: and then, upon a plea of no such record to the scire facias, judgment will be given for the defendants, because of the variance between tbe recognizance as amended and tbe recognizance as described in the scire facias.
    James C. M’Barland, a justice of the peace for the county of Kanawha, transmitted to the superiour court of law for that county a recognizance which set forth, that on the 10th day of November, 1830, Michael Hager, James Bias and Andrew Hager, came before him and acknowledged themselves to be indebted to John Bloyd governor of the commonwealth, the said Michael Hager the sum of S00 dollars, and the said James Bias and Andrew Hager the sum of S00 dollars, to be levied of their respective goods and chattels, lands and tenements, *for the use of the commonwealth; yet with this condition, that if the said Michael Hager should make his personal appearance before the judge of the said superiour court of law at the courthouse of said county on the first day of the next term of said court, fhen and there to do and receive what should be injoined him by said court, on a charge of having feloniously passed m payment to a certain Frederick Warker, certain false pieces of coin current, of the denomination of • dollars, with an intention to defraud him, and for having falsely made forged and counterfeited the same, and for offering to pass the same, and should not depart thence without leave of said court, then the recognizance was to be void. The words in italics, specifying the charge, were interlined.
    On the 18th of June 1831, a scire facias issued, setting forth the undertaking of the cognizors, as it appeared by the recognizance transmitted to the superiour court and filed among the records thereof; stating that Michael Hager had failed to make his personal appearance according to the condition of the recognizance, as appeared ■of record; and calling upon the cognizors to shew, if they could, why execution should not be had according to the recognizance. This process being served on the defendants James Bias and Andrew Hager, they appeared, and after craving over of the recognizance, demurred generally to the scire facias, in which demurrer the attorney for the commonwealth joined. Thej' also pleaded no such record, on which issue was joined; and offered six other pleas, which were not received.
    While the cause was thus situated, the defendants, on the 1st of June 1832, produced in court the affidavit of Alexander W. Quarrier, clerk of the superiour court of Kanawha, and also of the county court, to the following effect' — That sometime in the latter part of 1830 or early in 1831, M’Parland deposited with affiant the recognizance of the above named defendants. That ^either at that time, or shortly thereafter, this affiant, suggesting to the said M’Farland the loose manner in which said recognizance was drawn up, stated to him his belief that there would be no impropriety in interlining the offence of which Michael Hager •stood charged; and said M’Farland accordingly interlined in said recognizance the words which appear interlined therein. That this affiant knows nothing of the recognizance in its orginal form having been read to defendants; and he believes he never saw or heard of it, until it was handed to him by the justice. That this affiant does not recollect that any person, except himself and the justice, was present at the time the interlineation was made.
    Also the affidavit of James C. M’Farland the justice of the peace before mentioned, to the following effect — That application was made to affiant, as a justice of the peace for Kanawha county, to repair to the courthouse for the purpose of admitting Michael Hager to bail. That affiant accordingly went to the jail, where the recognizance was read to and acknowledged by the said Michael Hager. That affiant then returned to the bar of the courthouse, where, meeting with Bias and Andrew Hager the persons tendered as bail, he deemed it his duty to put them upon their oaths as to the value of their property, and their capacity to meet the obligation in case the recognizance should be forfeited : after which he read the recognizance to them, and they severally acknowledged the same. , That A. W. Quarrier the clerk, coming in at the same instant, took the recognizance and read it, and pointing out some material omissions (as he thought) in the draught of the paper, suggested that the correction might be made by interlinea-tions, if made in the proper handwriting of affiant. That upon examining the order, and finding that at least two lines containing the felonious charge had been omitted, affiant at first thought a new recognizance ought to be prepared; but the clerk observed that if affiant would write very ^closely, the whole might be comprised by an interlineation. That as the day was cold and disagreeable, and the parties anxious to leave the courthouse, affiant made the necessary interlineation in the recognizance, and left it with the clerk._ That affiant is inclined to believe he took the recognizance of all the parties before the omission was pointed out to him, but is quite certain that the interlineation was made in the presence of Bias and Andrew Hager, or at least that they and the affiant had not separated until it was done. That Michael Hager, being at liberty, was in the lobby of the courthouse and about the door; but affiant cannot say that he knew any thing of the correction made in the recognizance. That affiant is inclined to think he signed the recognizance before the interlineation was made in it.
    Upon these affidavits, a rule was made on the attorney for the commonwealth, to shew cause why the recognizance should not be suppressed and held void, and the farther prosecution of the scire facias be discontinued. The rule was afterwards discharged, the demurrer to the scire facias overruled, judgment given against the defendants on the plea of no such record, and execution awarded against them according to the recognizance, ’ A supersedeas was awarded to the judgment.
    Summers, for the plaintiffs in error.
    It is only by virtue of the act in 1 Rev. Code, ch. 169, § 2, p. S99, that a justice of the peace lets to bail in such a case as this. The act must be strictly followed. Commonwealth v. Myers, 1 Va. Cas. 188. It directs that the party shall be bound to appear and stand his trial at the superiour court. By the recognizance in this case, before it was interlined, the party was to appear and do what should be injoined him. These terms are not equivalent. The law having specified what the party was to be bound to do, to wit, stand his trial, and the recognizance not containing this specification, it was void. Had the justice ^authority afterwards to alter it? Could he make that operative which was void? Certainly not.
    The authorities differ as to the time when the obligation becomes a record. 11 Mod. 223; Wyatt’s Prac. Reg. 361; 1 Starkie on Kv. 252. If not a record, the objection might clearly be taken advantage of by plea, and the pleas which were offered in this case should have been received. But whether record or not, a defendant may shew that the recognizance is false,' — 'that he never was a party to it. The sanctity thrown around records is to guard truth, not falsehood. It cannot be that there is no mode of redress, where a recognizance of this kind can be shewn to have been made up without the knowledge or presence of the party. This would be oppressive upon the citizen, and a reproach upon the law.
    The attorney general, contra,
    said, that although any change of a bond made by the obligee would avoid it, yet a change made by a stranger had no such effect. The bond will still be good for what was acknowledged. So, in the case of a record, it is not avoided by mutilation or inter-lineation. The alteration onljr is to be rejected. This rule should, certainly prevail in regard to a recognizance, which is allowed to be taken in favour of the prisoner and of liberty. The question then is, whether the recognizance was not sufficient before the alteration. It did not specify what the party was to be tried for, but the statute does not require that it should. He is simply to be bound to appear and stand his trial. The terms of the recognizance are as specific as those of the statute. It was therefore good before the alteration. But, he said, a recognizance is not a record till it is enrolled. Glynn &c. v. Thorpe, 1 Barn. & Aid. 153; Co. Bit. 260, a. The record remained in 'the„ breast of the justice till transmitted to court. The plain meaning of what had taken place before the justice was, that the party bound himself to appear and ^answer the charge against him, and the justice made the recognizance conform to this meaning. The transaction was a fair one, and ought to be sustained.
    Johnson, in conclusion,
    sustained the ground taken by Summers, and said moreover, there was nothing on the face of the recognizance to shew by what authority it was taken. It ought to have appeared that it was taken in a case coming within the act in.l Rev. Code, ch. 169, ? 2, p. 599, and this not appearing, the demurrer to the scire facias ought to have been sustained.
    
      
      Records — Interlineation or Erasure — Parol Testimony to Assail. — if a record is interlined or erased by some unauthorized person such alteration constitutes no part of tbe record and it may be assailed by parol testimony. This is not controverting tbe absolute verity of tbe record, but it is simply enquir-ing wbat really constitutes tbe record. If this were not allowed, tbe absolute verity attributed to a record could be used to give sanction to a forgery or fraudulent erasure of the record. Herring v. Lee, 22 W. Va. 672, citing Bias v. Floyd, 7 Lehigh 640. To this point tbe principal case is also cited in State v. Vest, 21 W. Va. 801, 803, 805; foot-note to Johnston v. Slater, 11 Gratt. 321. See also, citing the principal case, Gedney v. Com., 14 Gratt. 325, 331; Quinn v. Com., 20 Gratt. 144; State v. Tingler, 32 W. Va. 548, 9 S. E. Rep. 936.
    
   TUCKER, P.

This is a scire facias on a recognizance taken before a justice of the peace, and certified to the superiour court of Kanawha. One H.ager having been prosecuted before an examining court for passing counterfeit coin, was sent on for further trial; but the court made an order admitting him to bail on his entering into a recognizance, which he accordingly did with the plaintiffs in error as his sureties. The recognizance was drawn out previously to its being acknowledged, and was first read to and acknowledged by the prisoner, after which it was read to and acknowledged by the sureties. After, it had been completed, the clerk of the court suggested some defects in it, and expressing also an opinion that it might be amended by the justice, he amended it accordingly by the insertion of several lines. The recognizance as amended was not read over to or reacknowl-edged by the cognizors, though the two sureties were present when it was done: but the principal was in the lobby of the courthouse about the door, and does not appear to have known of the interlineation or alteration.

As the recognizance was originally drawn, it was general in its terms, binding the party to appear at the superiour court, then and there to do and receive what should be injoined him bj' the said court. As amended, it bound him to appear then and there, to do and receive-*what should be injoined him by the court on a charge of having felo-niously passed counterfeit coin. Now by the-statute, and the order of the examining court made under it, the justice of peace had no power to bind the party in a recognizance to do more than to answer the particular charge. His demanding and taking a recognizance of a more general character was without authority, and therefore void; and had the recognizance been sued upon in its original form, it would have been a good defence to allege that it was taken without authority, and not in the course of any judicial proceeding. The alteration, therefore, in the recognizance was material. It made that good upon its face, which otherwise would have been void. Moreover, as amended, it bound the sureties that Hager should answer to a particular charge, when it does not judicially appear that they knew he was under prosecution for so serious an offence.

Be this as it may; the recognizance having been materially altered, two questions present themselves: 1. Whether it afforded matter of defence to the parties, in any form? and 2. In what form ought they to-seek their remedy?

It would be a reproach to the jurisprudence of any country, if a material alteration in an obligation however solemn, or even in the records of the court itself, to-the prejudice of a party, could be in no wise corrected. In this case the parties entered into a recognizance, which would have-been void if it had remained unaltered. It is changed; it is never reacknowledged by them after the change, and the principal does not even know of the change. It is impossible to consider them as bound by' the instrument in its'present form. Bet us-consider the question first upon the supposition — certainly the most favourable to the commonwealth — that the recognizance had become a matter of record, at the time the alteration was made in it. Upon this. ^'supposition the authorities are abundant to prove that where a record has been falsified by erasure or interlineation, it may be amended and restored to its original condition. The absolute verity attributed to records cannot be used to give sanction to a forgery or to a fraudulent erasure of the record. Accordinglj7 we find it decided, as early as the times of Roll (2 Roll’s Rep. 80; 1 Roll’s Abr. 208, 209,) that if any part of a record be vitiated by rasure, the court will restore it by amendment; because the wickedness of any person in corrupting the records of the court ought not to obstruct its justice, or prejudice any of the parties. Thus where it appeared that, in a venire facias, Chumley was rased and made Himley, the record was amended, and restored to its original state. 2 Vin. Abr. 312; 1 Bac. Abr. 225. Amendment, H. So in ejectment upon a lease made May the 10th, this was rased and made the 11th, by which the plain-tilt’s judgment was rendered erroneous ; yet as it appeared to the court that it was rased and altered without lawful authority, it was said it should be amended, though the rasure was felony. Poph. 196. And lord chief justice Gilbert in his Hist. C. B. 146, says, in the language above cited, if any part of the record be vitiated by rasure, the court will restore it by amendment; because the wickedness of any person in corrupting the records of the court ought not to obstruct its justice, or prejudice any of the parties. In the cause in 2 Roll 80, 81, judgment was rendered against A. and Mary his wife, but the word Mary was erased, as appeared plainly upon view of the record. She was taken in execution, and brought a writ of error in the exchequer chamber, for that no judgment was had. against her. It was moved in the court below, that this being an apparent practice to avoid the execution, the record might be amended, and a special entry made that it had been rased, and that the court had amended it; to which the whole court ^agreed; and then it was said, the court of exchequer chamber (where the writ of error was depending) would amend the transcript also, which had been sent and certified to it before this motion. Here then, I think, is a chart sufficient to steer our course by in this case. First, it is clear that if the recognizance had been altered after it became a record, the court upon motion would restore it to its original and true form. Secondly, it is clearly to be inferred that the correction of the record can only be in the court where the record is. Thirdly, that its verity cannot be assailed incidentally, but must be directly brought in question by motion to correct it. And lastly, that when corrected, the record will in another proceeding be taken in its corrected and not in its falsified form. Thus in the present case, the court (upon the supposition that it was a record) should have stricken out the interlineation, and upon the plea of nul tiel record, would have given judgment for the defendants, for the variance between the record as corrected and that recited in the scire facias.

But the recognizance was not, when altered, a matter of record, though it certainly was so, I presume, at the tilne of the plea pleaded. Supposing it, however, not a record at the time of the plea pleaded, the question is, first, whether the defendants can avail themselves of the alteration; and secondly, in what manner. As to the first, it cannot be doubted that if a party can even correct a rasure or fraudulent falsification of a record, he can a fortiori correct an alteration in a recognizance which was not a matter of record when it was altered. It would outrage common sense to say that after a justice of peace had taken a recognizance in the penalty of 100 dollars, his changing the penalty to 10,000 dollars should be without redress. There must be some means of defending himself against such a wrong, afforded by the law to the injured party.

*The case of Glynn v. Thorpe, 1. Barn. & Ald. 153, is a strong case to-shew that a recognizance not of record maybe answered by a plea of nil debet. There, a recongnizance in the exchequer chamber was pleaded as a set-off; and the plaintiff replied in the most general terms, that they were not indebted to the defendant as in that plea alleged. It was objected that instead of this replication of nil debet, the plea should have been “no such record.” The court decided that, until enrolled, the recognizance was not a record, and that the plea having failed to set forth the enrolment, the replication treating it as no record was good. Here then it appears, a recognizance not of record may be assailed by the most general plea.

According to these views, the judgment of the circuit court of Kanawha was erroneous, whether the recognizance was to be pleaded to as a record or not. My own impression however is, that although the alteration was before the recognizance was matter of record, it can in this action be treated in no other manner than as a record. The scire facias sets it forth as having been transmitted to the superiour court, and as remaining filed among the records thereof. It is therefore now a record, and to the scire facias upon it nul tiel record is the proper plea. Its verity cannot be questioned by plea, but by motion or rule; and the defendants very properly obtained a rule for the purpose of correcting the falsification of the recognizance by the inter-lineation of a material clause. Upon the facts and evidence before the court, the rule should have been made absolute, instead of being discharged, and the amendment should then have been made by striking out the interpolated matter. A.nd as this rule was but ancillary to the case upon the scire facias, that case should have been suspended until the decision of the rule, and then the defence would have been fairly tried upon the plea of nul tiel record. The amended record would have varied *from the scire facias, and so judgment must have been given for the defendants; leaving to the commonwealth to prosecute her scire facias anew upon the amended recognizance, if to her officer it should seem fit.

I am therefore of opinion to reverse the judgment discharging the rule, and the judgment on the scire facias, and to send the cause back with directions to amend the recognizance according to the right of the case, and then to proceed to a new trial of the scire facias upon the defendants’ plea of nul tiel record.

The other judges concurring, judgment reversed and cause remanded to the circuit court. _  