Day v. Crosby

Hammond, J. These two actions were tried together. In each case the plaintiff offered in evidence a duly certified copy of the record of the judgment upon which the action was based. The defendant objected to the admission of these copies, not because they were not properly certified, but because they were annexed to the respective declarations and had become a part of the pleadings; and he contended that therefore, under Pub. Sts. c. 167, § 75, they could not be considered as evidence at the trial. The court rightly admitted them. The contention of the defendant is based upon a palpable misconception of the statute. The statute is entirely inapplicable. Its purpose was to declare that, in the proof of any issue raised by the pleadings, neither party should use as a part of that proof any statement made in the pleadings. A good illustration of the application of the statute is seen in Lyons v. Ward, 124 Mass. 364, where, in an action upon an account annexed for goods sold and delivered, the defendant pleaded, first, a general denial, and, secondly, that the goods were intoxicating liquors, and were sold by the plaintiff to the defendant in violation of law. It was held that the admission of a sale contained in the second plea was not evidence in support of the allegation on the issues raised by the first plea. Each specific defence is to stand as if alone, and no statement in either is to be used at the trial as evidence for or against either party upon either of the others. The statements in the pleadings are simply to raise issues. Lyons v. Ward, 124 Mass. 364, and the authorities therein referred to. In the case at bar, the records were admissible as evidence, not because they were a part of the declaration, but because, being properly certified, they were under the general rule of evidence admissible to prove the existence of the respective judgments, and the fact that they had been used for another purpose did not change their character. They were offered, not as the [436] statement of the plaintiff, but as records duly authenticated, and as such were admitted. As to the second request, the defendant contends that, in order to overcome the presumption of payment which exists under Pub. Sts. c. 197, § 23, the evidence should be as strong as that required to take a case out of the general statute of limitations. But it has been expressly decided the other way. Any legal evidence tending to show that the judgment has not been satisfied is competent, and if it produce a conviction that such is the case it is sufficient to rebut the presumption, even although it would be of no avail against the general statute of limitations. Walker v. Robinson, 136 Mass. 280. The court at the trial adopted in substance this rule, refused to rule that on all the evidence the presumption had not been overcome, and found for the plaintiff in each case. Without reciting the evidence, it is sufficient to say that, upon looking it over, we are satisfied that it warranted the finding. Exceptions overruled.