West v. Irwin

[259] The opinion of the court was delivered, March 2d 1874, by' Williams, J. — The single question in this case is whether the record of the judgment was admissible as primd facie evidence of the defendant’s execution of the note, and of the plaintiff’s right to recover thereon. If payment with leave to give the special matter in evidence had been the only plea, as in Cannell v. Crawford County, 9 P. F. Smith 168, there- would have been no error in the admission of the record, for the plea would have confessed the cause of action on which the judgment was entered. But there was also the plea of non est factum, and under the issue formed thereon, the burden of proof was on the plaintiff. If the record tended to establish the issue, or aid the jury in its determination, it was properly admitted; but if it shed no light on the subject whatever, it was error to allow it to go -to the jury as primd facie evidence of the fact alleged on the one side and denied on the other. What, then, did the record-show, and what possible inference could be drawn from it touching the matter in issue ? It showed that the prothonotary had entered judgment against the defendant on the note, and that the court had opened the judgment and let the defendant into a defence. The entry of the judgment on the note did not tend to show its execution by the defendant any more than the opening of the judgment tended to show that the note was not made by him. The entry and the opening of the judgment left the burthen and mode of proof, just as they would have been if the judgment had not been entered. It was opened without condition, and under such an order as said by Rogers, J., in Dennison v. Leech, 9 Barr 164, the judgment remains as a security for whatever may be found due; but in all other respects, the trial must be had as if no judgment had been entered. Judgment reversed, and a venire facias de novo awarded.