Nye v. Kellam

The opinion of the court was delivered by Kellogg, J. Three questions are made in this case, for the consideration of the court. 1. Whether the original files, being writ, service and minutes on the back of the writ, to prove the judgment specified in the plaintiffs’ declaration, and parol testimony of the magistrate, who rendered the judgment, to prove the identity of the files, were properly received in evidence. We are of opinion, that this was not proper and appropriate evidence to prove the judgment. The case of Strong et al v. Bradley, 13 Vt. 9, would seem to be decisive of this question. That case is almost identical with the case at bar, and the court there held the files of the Justice inadmissible, to prove the judgment; and, in the case of Wright v. Fletcher, 12 Vt. 431,the court held, that parol proof was inadmissible, to prove the judgment. Justices of the peace are required to keep records, and their judgments can only be proved by the original record, or an authenticated copy. The files do not constitute the record, but the evidence, from which the record of the judgment is made. But the case finds, that, before the evidence was closed, the plaintiffs offered and gave in evidence (subject to ’exception) the record of the magistrate, as farther proof of the judgment. If the record of the judgment was properly received, (and this must depend upon whether it was sufficient,) it cured the irregularity of the previous introduction of the files and the parol proof to identify them. The record given in evidence was manifestly very imperfect; but, in answer to this, it is urged, that heretofore the records of our justices [598] of the peace have been viewed with great liberality and indulgence ; and cases have been cited of decisions of this court, sustaining justice records less perfect than the one under consideration. This is undoubtedly true of some of the early adjudications, and especially in cases, where th'e magistrates had deceased, so that no method of amending the record remained. But it is equally true, that, in the more recent cases, which have come before the court, these records have been viewed with greater strictness.» In the recent case of Wright v. Fletcher, before cited, the record of a justice’s judgment, less imperfect than the present, was held quite insufficient to sustain an action. In that case an attempt was made to supply the imperfections of the record by parol proof; but the court held, “that the parol proof was inadmissible, and that the plaintiff was bound to show a regular judgment; but that the informal and insufficient record produced did not show such a judgment.” Many of the objections, taken to that record, may well be taken to the record in the present case. It shows no appearance of either of the parties, no adjudication by the justice, no allusion to any writ, process or declaration, and no award of execution. If, then, it was necessary to give evidence of the judgment, upon which the execution issued, (and the parties appear to have deemed it necessary,) we think the record "produced was insufficient, to prove such judgment, and consequently should not have been admitted. Nor should the parol evidence of the magistrate have been received, for the purpose of proving, or supplying, any part of the record, or files in the case. 2. It is farther objected, that the county court erred in admitting the receipt executed by the deputy of the defendant, at the time he received the execution for collection. "We do not consider this exception well founded. The receipt purports to have been signed by the defendant’s deputy, Locke, in his capacity of deputy sheriff, and to contain an acknowledgment of his having received, for collection, the execution, for the failure to collect which this suit was instituted. We see no reason, why the same was not properly admitted. 3. It is objected, that the court erred in permitting certain entries in the treasurer’s book for the town of Irasburgh, which were made by one of the plaintiffs while he was treasurer of the town, to be given in evidence by the plaintiffs. It is undoubtedly a well settled general principle of law, that a party cannot be permitted to give in [599] evidence the entries, or memoranda, made by himself in his private books, and for the very obvious reason, that it would afford the party an opportunity to make testimony for his case. To this general rule, however, there are exceptions; but it is unnecessary upon the present occasion, to examine the authorities upon this subject, inasmuch as we do not regard the treasurer’s book as the property of the officer keeping it, but of the town, for whose benefit the same is kept. It is a public book, required by law to be kept, and certain entries, are required to be therein made ; and, upon a change of the treasurer, the books pass to his successor. We entertain no doubt, that this book, and the entries therein made in the regular course of business, might, upon proper occasions, and for proper purposes, be used as evidence. The item upon the book which was given in evidence, was an order credited to the treasurer, purporting to bear date the twenty-fourth of November, 1841, and to be drawn upon the treasurer in favor of Cowles, the judgment debtor. Now if, as was suggested by the counsel for the plaintiff in the argument, the defendant claimed that the execution was paid by Cowles, and by this order, and at a time which was anterior to the date of the order, then this evidence, we think, would be admissible, for the purpose of .rebutting that defence, unless the order was in existence and could be produced ; in which event it should be produced, being better evidence of the date of the order, than the entry in the treasurer’s books. But it appears by the bill of exceptions, that this evidence was offered, hot for the purpose of showing when the orders were drawn, but for the purpose of showing, that the order of $85, was paid by the plaintiffs to Cowles, and that the order was not received to be applied upon the execution, and this at a period of more than a year after the execution was delivered to the sheriff. We think the book was clearly inadmissible for that purpose. Indeed, we cannot perceive, how the entry of the order upon the treasurer’s book, could have the slightest tendency to prove the manner, in which the order was paid. Whether the order was received by the treasurer from Cowles, upon an agreement to apply the amount upon the execution, or the amount was paid to Cowles in money for the orders at the time, the entry of the order to the credit of the treasurer, would be the same it now is. Judgment of county court reversed.