Mann Mirick.

the parties to it than a judgment in a real action. To permit one claiming under a party to such partition again to litigate the title would manifestly violate the maxim which declares that public interest requires an end to litigation. And the provisions of the statute for this object are equally reasonable and plain.

It appears that Nathaniel Green, in the proceedings for partition, made deliberate admissions upon the record inconsistent with the title which the tenant now claims he had at that time. Such admissions, made in the course of a judicial proceeding, may well be held conclusive on Green and those claiming under him, by way of estoppel. Exceptions overruled.

ELBRIDGE MANN US. SILAS MIRICK.

If a debtor who has been arrested on an execution and entered into a recognizance under Gen. Sts. c. 124, § 10, appears by attorney but not personally at the time and place fixed for his examination, the magistrate may entertain a motion of the attorney for an adjournment of the case to another time within thirty days from the day of the arrest, and may hold the motion under consideration till after the expiration of the hour, and the departure of the creditor's attorney, and then grant the same; and may discharge the debtor at such adjourned hearing.

CONTRACT against a surety in a recognizance, the condition of which provided that the judgment debtor, who had been arrested on an execution in favor of the plaintiff, should within thirty days deliver himself up for examination, giving notice of the time and place thereof, and duly appear, making no default, and abide the final order of the magistrate thereon.

At the trial in the superior court, before Wilkinson, J., it appeared that a time and place were duly fixed for the examina. tion of the debtor and notice given; that the debtor and plaintiff both appeared by counsel, but not personally, and the debtor's attorney within the hour moved for an adjournment to another time within the thirty days, to which the plaintiff's attorney bjected; that after the expiration of the hour, and while the magistrate held the motion under consideration, the plaintiff's

Mann v. Mirick.

attorney departed, and thereafter the magistrate granted the motion; that the plaintiff's attorney did not appear at the time to which the case was adjourned, and the magistrate thereupon granted another adjournment to a time within the thirty days, notice of which was given to the plaintiff's attorney; and that, at such adjourned hearing, the magistrate discharged the debtor, the plaintiff not appearing.

The judge upon these facts directed a verdict for the defendant, and the plaintiff alleged exceptions.

T. G. Kent, for the plaintiff.

H. B. Staples, (L. H. Wakefield with him,) for the defendant. GRAY, J. It is doubtless the duty of a debtor who has entered into a recognizance under Gen. Sts. c. 124, § 10, to appear in person before a magistrate at the time fixed for his examination, and the examination cannot well proceed in his absence. But the statute expressly provides that "the magistrate may adjourn the case from time to time, and shall have the same powers with respect to all other incidents thereto, as justices of the peace or other courts have in civil actions." Gen. Sts. c. 124, § 16. It is within the power of any court, in a civil action to which the defendant is bound to answer in person, to allow him, on account of sickness, or accident, or any other cause satisfactory to the court, to appear by attorney for the purpose of moving for a postponement of the trial. No more than this was done in the present case. The motion for an adjournment was made within the hour appointed for the examination, and the fact that the magistrate held it under consideration until after the hour had expired and the creditor's attorney had departed does not invalidate the order adjourning the case. At the time to which the case was adjourned the debtor appeared, and after another adjournment, of which notice was given to the creditor, he was discharged by the magistrate, within thirty days from the time of his arrest. The defendant was thus lawfully discharged from his recognizance, and the plaintiff cannot maintain this action. Exceptions overruled.

Kelley v. Dresser.

PATRICK KELLEY vs. SYLVESTER DRESser.

The truth of a magistrate's record of a criminal case within his jurisdiction and determined by him cannot be impeached, even in an action against him for fraudulently and corruptly altering the complaint and warrant after the warrant had been served.

TORT against a trial justice for fraudulently and corruptly altering the complaint and warrant in proceedings against certain intoxicating liquors alleged to have been unlawfully kept by the plaintiff.

The declaration alleged that on the 2d of July 1863 the defendant was a trial justice, and two persons made a complaint to him that they believed and had reason to believe that certain liquors, which were described, were illegally kept and deposited by the plaintiff in a certain place, and prayed for a search warrant, under Gen. Sts. c. 86; that the defendant thereupon issued a warrant to search for the same liquors described in the complaint, which warrant was delivered to an officer for service, who thereupon entered the premises of the plaintiff, and seized certain other liquors not described in the complaint or warrant, and made return of his doings to the defendant, describing the liquors actually seized by him; that thereupon the defendant, after said service and return of the warrant, intending to oppress the plaintiff, corruptly and fraudulently made certain erasures, additions and alterations upon the complaint and warrant so as to make them conform to the officer's return, and so that he might order the liquors to be forfeited to the Commonwealth; and the defendant accordingly, after certain other proceedings, did order said liquors so seized to be forfeited to the Commonwealth, and the plaintiff was compelled to appeal to the superior court, Copies of the complaint and warrant, as the plaintiff alleged that they were in their original form, and copies of them as they finally stood, were annexed.

At the trial in the superior court, before Wilkinson, J., the plaintiff introduced in evidence the original complaint and war. rant, and contended that it was apparent from an inspection of them that the alt.ations, erasures and additions mentioned in

Kelley v. Dresser.

the declaration had been made by the defendant since the papers had been originally drawn. He also testified that after the war. rant had been served he called on the defendant for a copy of the warrant and officer's return, which the defendant furnished to him, having made the same in his presence; and this copy was produced in evidence, and corresponded exactly with the original warrant and officer's return thereon, except as to the alleged alterations. He also introduced copies of the judgment of the defendant, and of the papers in the case, from the files of the superior court, and in these copies the liquors were all described in the same way as in the officer's return, and the copy of the record of the judgment of the justice was partly printed and partly written upon the back of the copy of the complaint, and certified that the proceedings were had "by virtue of a warrant issued upon the within complaint," and throughout referred to the said complaint and warrant as the original complaint and warrant.

The defendant contended that parol evidence was inadmissible for the purpose of controlling or contradicting the record; and the judge ruled that upon the above evidence the action could not be maintained, and directed a verdict for the defendant. The plaintiff alleged exceptions.

G. F. Verry, for the plaintiff. The defendant cannot, in an action brought directly against him, shield himself from the responsibility of his acts, in fraudulently and corruptly altering the complaint and warrant, by adding thereto the fraud of making up a false record, and then setting up that in making the record he was acting as a magistrate in his judicial capacity and within the scope of his jurisdiction. See Clarke v. May, 2 Gray 410; Piper v. Pearson, Ib. 120; Wells v. Stevens, Ib. 115; Sullivan v. Jones, Ib. 570; Haskell v. Haven, 3 Pick. 404; Spencer v. Perry, 17 Maine, 413; Yates v. Lansing, 5 Johns. 282; S. C. 9 Johns. 395.

P. E. Aldrich, for the defendant.

CHAPMAN, J. A complaint was made to the defendant, whe is a trial justice, against certain liquors, alleged to be illegally kept for sale by the plaintiff, and the defendant thereupon issued

Kelley v. Dresser.

a warrant for the seizure of the liquors. The plaintiff alleges that the officer seized certain liquors that were not described in the complaint and warrant, and made return thereof to the defendant, and that the defendant thereupon fraudulently altered the description of liquors in the complaint and warrant so as to make it correspond with the officer's return, and then proceeded to try the case upon these altered documents. After a judgment was rendered in the case against the plaintiff, he appealed to the superior court and entered his appeal. He then produced in evidence a copy of the defendant's record, including the complaint and warrant. In this copy the description of liquors in the complaint and warrant corresponds with that in the officer's return. It appeared upon inspection that this was a correct copy of the record in its present condition. But the plaintiff attempted to establish his case by offering evidence tending to show that the defendant made the alterations above specified during the pendency of the proceedings before him. This was an offer to impeach the verity of the record, and for that reason the evidence was rejected.

The doctrine that a record imports absolute verity, and that no averment, plea or proof is admissible to the contrary, has been uniformly maintained from the earliest times, on grounds of public policy. It is too important and too well settled by authority to be questioned. The recent discussion of it in Wells v. Stevens, 2 Gray, 115, makes it unnecessary to refer to other authorities.

In this case it appears that the original record bears the marks of interlineations such as the plaintiff describes; but interlinea. tions often exist in complaints and warrants. The practice of interlining such papers is slovenly and dangerous; but their validity is not thereby affected, when the alterations are made before they are delivered to an officer. Now if the existing record is true, it was so done. The face of the record imports it, and proof of a subsequent alteration would impeach the record, by contradicting it directly.

In receiving the complaint, and directing the form of the war. rant, in the hearing of the cause and determining how to make