Davidson v. Murphy

Williams, Ch. J. The plaintiff must claim, that the evidence offered by him was admissible, either because it is a record, or that this is a case in which record evidence may be dispensed with. 1. Is it a record? A record, in judicial proceedings, isa precise history of the suit from its commencement to its termination, including the conclusion of law thereon, drawn up by the proper officer, for the purpose of perpetuating the exact [218] state of facts : or, in the language of Lord Coke, “ records are memorials or remembrances, in rolls of parchment, of the proceedings and acts of a court of justice, which hath power to hold plea according to the course of the common law;” and are of “ such incontroulable credit and verity as that they admit no averment, plea or proof to the contrary ; and if such record be alleged, and it be pleaded that there is no such record, it shall be tried only by itself.” Co. Litt. 260. a. Wright v. Finder, cited Hardr. 120. Is this such a memorial ? In England, it would admit of no question, because it is not enrolled in parchment; but we have always dispensed with that in this state. Has it, then, the other requisites 1 Is there given here a precise history of the facts ? The writ, &c. bring down the case to the time of trial. The minutes of the justice make it probable, that the parties appeared, as the issue is stated ; but that is a mere inference ; and if they did appear, we know not where it was, except as we are to presume it. The minutes add — “ Continued 26th of September, 1836.” Now, whether it was continued on that day, or to that day, is no where said. The natural meaning is, that without shewing at all how it was pending upon that day, it was, on that day, continued toa future time. It is said the costs — “ attendance, four days” — shew, that was the day. If this is supposed to be a taxation of costs, and of four days attendance of the plaintiff, as is claimed, there is nothing to shew, that the four days intend four days before the 26th of September, unless we assume the fact to be proved, that the judgment was rendered on the 26th of September. Again ; that any judgment was rendered, and what that judgment was, is uncertain. After the ordinary items of the bill of costs for the plaintiff, is subjoined — “ Damages $5.75”— from which it is most probable, that the justice intended to, or actually did, render judgment for the plaintiff for that sum. This, however, he does not state ; and if he did, there is nothing to shew, whether he found the issue for the plaintiff ox-defendant. In short, every thing shews, that so far from being a memorial of such incontroulable credit and verity as to admit no averment to the contrary, it continually needs averments to support it. It appears to be a mere memorandum or minutes of the magistrate, kept to assist him in making up his record. Such minutes are recognized in law, as something distinct [219] from the record. Thus, it is said, that before exemplifications are made, the record shall be drawn up in form ; and although execution may be taken out, yet it is not a permanent and perfect record, until brought into court, and there filed as a memorandum or roll. Peake's Ev. 33. And the minutes of the house of commons are admissible, because it is not a court of record. Jones v. Randall, Cowp. 17. So too, when a record has been lost, a new record has been allowed to be made from minutes of a proper officer made at the trial. But with these minutes, the plaintiff also offers an execution, signed by the justice, and counting upon the judgment declared upon. That an execution is not a record of the judgment, is too apparent to require illustration. It is a well known principle, that although an execution, regular upon its face, may protect an officer acting under it, yet the party must produce, for his protection, the judgment upon which it is founded. Colt v. Eves, 12 Conn. Rep. 357, 8. And the execution upon its face refers to the judgment upon which it is founded, “ as appears of recordand so far as it is evidence at all, it only proves that there is other evidence of a higher nature. Neither the minutes of tjie justice, nor the execution signed by him, nor both, constitute a record. In this case, then, the plaintiff has offered no record proof of the judgment. 2. Is the evidence offered a substitute for it ? Our justice courts are courts of record ; and the presumption of law is, that if they have rendered a judgment, there is to be found the legal evidence of that judgment, viz. the record. In this case, we not only have that presumption, but the plaintiff in his declaration alleges the record of said judgment to be lost. And whatever doubts may have existed in former days, and however judges may have hesitated, yet it is now well settled, that if a record has existed and has been destroyed, much inferior evidence of its contents may be admitted. Aleyn 18. Peake's Ev. 29. 1 Stark. Ev. 160. Knight v. Dauler, Hardr. 323. Stockbridge v. West-Stockbridge, 12 Mass. Rep. 400. 402. But then there must be sufficient evidence of the loss. In this case, no evidence at all was offered to prove the loss. This evidence then was offered instead of the record, while so far as there is any evidence before us, the record might have been shewn ; and this would be a sufficient answer to the claim of the plaintiff, as disclosed in these pleadings. [220] But the case has been argued before us, in accordance probably with the fact that Justice Bennett never made a record ; for his death could not have been introduced for any other purpose; and this court is called upon to say, that because it has become impossible for the plaintiff to get the legal evidence of the fact, therefore we are to allow him to prove it, by other evidence ; and in support of their position, they cite the case of Strong v. Kimball, 6 Verm. Rep. 541. to which is opposed the strong opinion of Judge Hosmer, in the superior court in Netu-Haven county in 1825, where he held the question too clear for argument, and refused to reserve it for the supreme court, as it admitted of no doubt. Wales, admr. v. Smith. Such we believe to have been the uniform course of decisions in this state. In the case said to have been decided by Judge Huntington, in this county, in 1838, the facts were all stated in a bill of exceptions, and thus became a part of the record. A judgment debt is a debt of record ; and as such, is protected from examination, on account of its nature and character. But this case proceeds upon the principle that there never was any record evidence of this judgment. And the rule, as laid down by one of our most able jurists, is, that when it is necessary a record should be made to constitute a fact, then it must appear that such record was made, as in cases of judgments of courts, or such fact does not exist. Swift’s Ev. 5. It is said a man shall not suffer by the act of God. As the justice lived nearly a year after this judgment, it would seem as if the loss was occasioned rather by the negligence of man, than the act of God. But had he died on the day of the judgment, the same principle must have governed ; “for the law will rather suffer a mischief in a private casé, than an inconvenience, which, by the breaking of the rule of law, should be brought upon the public.” Bey field’s case, 10 Co. 93. We have no hesitation in saying, there is nothing erroneous in the judgment complained of. In this opinion the other Judges concurred. Judgment affirmed.