The State v. Martin.

THE STATE upon the relation of OCTAVIA DELOACH v. ANTHONY MARTIN.

The rule, that words which, from the context, it is manifest have been omitted in a deed or a will may be supplied by construction, held to apply also in construing records.

Therefore, where a motion had been made by the defendant in the County Court to quash certain proceedings in bastardy, and a counter motion by the State, for a continuance; and the record proceeded thus, “thereupon the court refused to quash, and continued the case to the next Superior Court of Law to be held, &c., &c., without surety by consent:" Held that the record showed sufficiently that the defendant had appealed from the decision upon the motion to quash, and therefore that the cause, upon being carried up, was properly constituted in the Superior Court.

MOTION to remand proceedings in bastardy which had been brought up from the County Court, heard before Barnes, J., at Spring Term, 1867, of the Superior Court of NORTHAMPTON.

Upon the return of the proceedings before the magistrate into the County Court of Northampton, the defendant's counsel moved to quash because the proceedings did not show an affidavit by the mother, or that the child had been born within three years before the examination. This was resisted by the Solicitor for the State, who also made a counter motion to continue the case, in order that he might have an opportunity to procure an amendment. The County Court record then proceeded: "And thereupon the court refused to quash, and continued the case to the next Superior Court of Law to be held for the county of Northampton at the Court House," &c., &c., "without surety by consent." In the Superior Court the Attorney General moved to remand the case to the County Court. This motion having been overruled, he appealed.

Attorney General, for the State.

Bragg, for the defendant.

The State v. Martin.

BATTLE, J. The record of the County Court, as it appears in the transcript sent to the Superior Court, is manifestly imperfect. Indeed it is senseless and unintelligible as it stands, but may be made intelligible and consistent by interposing the word "appeal" between the words "continued the case" and "to the next Superior Court of Law," &c. In wills and even in deeds it is well settled that a word or words, which it is manifest from the context have been omitted, may be supplied by construction. We cannot conceive of any reason why, in a similar case, a word or words may not be supplied by construction in a record. Of course it ought not, and will not be done unless it is clear beyond doubt that the word or words were omitted by mistake or inadvertence.

In the present case the counsel for the defendant moved the County Court to quash the proceedings before the justice of the peace for error apparent therein, and at the same time the County Attorney moved for a continuance of the cause, for the purpose of giving an opportunity to the justice to amend the proceedings before him. The record states that the court thereupon refused to quash, "and continued the case to the next Superior Court of Law," &c. Now the court had no power to continue the cause to the next Superior Court, but, after refusing to quash the proceedings upon the defendant's motion, it had the power to continue the cause to the next County Court; and it had the power also, and it was its duty, to allow an appeal to the defendant from the refusal to quash, which would, of course, have superseded the order for a continuance. Taking the record altogether, it is manifest that the court so acted. But the counsel for the State says that if we supply the word "appeal" it means an appeal from the order to continue the cause, and not from the refusal to quash. This seems to us to be a hypercriticism. The defendant had undoubtedly a right, during the whole term of the

Kingsbury v. Hughes.

court, to appeal from the refusal of his motion to quash; and it is a fair construction of the record that he did appeal

therefrom.

If the above view of the record be correct the cause was properly constituted in the Superior Court, and his Honor did right in refusing the motion of the Attorney General to dismiss it.

PER CURIAM.

Judgment affirmed.

RUSSELL H. KINGSBURY v. WILLIAM H. HUGHES.

The provision of the 5th section of the ordinance entitled "An Ordinance to change the jurisdiction of the Courts, &c.," in regard to the dismission of pending writs of sci. fa., cannot be taken advantage of without motion:

Therefore, where the defendant failed to make any defence to a sci, fa., and thereupon judgment was given against him, held that such judgment was regular and valid.

(Allison v. Hancock, 2 Dev. 296, cited and approved.)

MOTION, to set aside a judgment, &c., heard at Spring Term, 1867, of the Superior Court of GRANVILLE, before Warren, J. At Spring Term, 1863, of that Court, the plaintiff had recovered judgment against the defendant for $621. Upon this judgment a writ of sci. fa. issued returnable to Fall Term, 1866, and at that term judgment was taken by default. Thereupon a writ of fi. fa. having been placed in the hands of the sheriff, a part of the money was made, and returned with the writ to Spring Term, 1867. At this latter term, after notice to the plaintiff, the defendant's counsel moved to set aside the judgment at Fall Term, 1866, and also the writ of fi. fa. issued thereupon, upon the ground that the court had no jurisdiction to give such judgment.

Kingsbury v. Hughes.

His Honor refused to allow the motion, and the defendant appealed.

Graham, for the appellant.

1. The judgment was irregular and void, by the 5th section of the Convention Stay Law.

2. Laches is not attributable to this defendant; for the Convention, acting judicially, (Parker v. Shannonhouse, ante, 209,) authorized a judgment for costs only, and the court could go no further.

3. The ordinance is remedial, and so, to be construed benignantly. It requires no technicalities of appearance and pleading as in Davis v. Shaver, ante, 18; Sharp v. Rintels, ib., 34, and Crawford v. Bank, ib., 136. The sovereign Convention took cognizance of cases pending in court, and directed what judgments should be entered. The plaintiff, as actor, had either to stop short and discontinue his case, or to move to dismiss it at costs of the defendant. Even a confession of judgment would have been void. See State v. Nutt, ante, 20; Burbank v. Williams, ib., 37.

Edwards, contra.

The dismissal of the sci. fa. was a personal privilege of the appellant, and was waived by him: See 5th section of the ordinance, also the opinions in Griffis v. McNeill, ante, -176, and Crawford v. Bank, ib., 136.

READE, J. The ordinance of the Convention entitled "An ordinance to change the jurisdiction of the courts and the rules of pleading therein," provides that "dormant judgments shall only be revived by actions of debt, and every scire facias to revive a judgment shall be dismissed on motion, provided that those now issued shall be dismissed at the cost of the debtor."

The scire facias in this case was issued before the passage

Kingsbury v. Hughes.

of the ordinance, and the debtor was entitled to have the same dismissed on his motion, and at his cost. He did not move to have it dismissed, and judgment was entered against him. He now insists that he is entitled to have the judgment set aside as irregular and void; that the ordinance was an adjudication, and was mandatory to the court to dismiss the scire facias without motion; that the court had no power to render judgment even with the consent of the debtor, any more than a County Court would have the power to render judgment of death for a felony. It is difficult to conceive of any reason why the Convention should have ordained any such arbitrary rule. The parties had a controversy regularly constituted in court. It was not within the power of the Convention to relieve either party from any liability incurred to the other. Possibly it had the power to change the remedy: but why it should arbitrarily change the remedy against the wishes of both parties is not apparent. If it be supposed that it was the purpose of the Convention to favor the debtor, it may be that an arbitrary rule to dismiss the case at his cost, so far from favoring would have very seriously damaged the debtor. Suppose that at the time of the passage of the ordinance, a scire facias had been pending in court for years, until the cost was more than the debt, and the debtor had a good defence, as payment, and he is anxious to avail himself of this defence, and thereby avoid both the debt and the costs. Here, by this construction the ordinance cuts off his defence, and directs the court to dismiss the case and make the defendant pay the costs! It ought not to be supposed that the Convention, under the color of favoring a debtor, would thus have trifled with his rights and imposed upon him a heavy liability, not only without his consent, but against his protestation. It is believed to have been the intention of the Convention to favor the debtor so far as could be legitimately done by allowing him, if he thought proper,