Opinion
(June Term, 1867.)
1. 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.
2. 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, etc., etc., 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.
Attorney-General for the State.
Bragg for defendant.
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 courthouse," etc., etc., "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.
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," etc. 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 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," etc. 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 court, (328) 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.