Murdock v. Hicks

The opinion of the court was delivered by Dunton, J. This is an action of debt on recognizance. It is alleged in the declaration that judgment was rendered by a justice of the peace, in a certain suit in favor of Charles P. Murdock, the plaintiff’s intestate, against one Hubbard D. Oaks; that Oaks appealed, and defendant entered into the recognizance in question for the appeal, in due form of law, as surety for Oaks; that the appeal was entered in the County Court, and judgment was rendered therein for the plaintiff in said suit; and that the execution, issued [687] on said judgment, was returned unsatisfied in a sum exceeding the amount t>f said recognizance. The defendant pleaded nul tied record as to the recognizance and accord and satisfaction. The plaintiff replied that there is such a record, and traversed the plea of accord and satisfaction. The other allegations in the declaration not being answered, under our rules of pleading, are admitted to be true. Carpenter Buel v. Briggs French, 15 Vt. 41. Therefore, it was only necessary for the plaintiff to prove the existence of the alleged record of the recognizance in question, in order to make out a prima-facie case. This he did, by putting in evidence a certified copy of the same, which was proper evidence to prove this fact. But, were it necessary for the plaintiff to go further, and prove that judgment was rendered for the plaintiff on the appeal in the County Court, and that the judgment had not been satisfied or paid, we think what took place between the attorneys of the parties to this suit, at the trial before the County Court, was equivalent to an admission of these facts by the attorney for the defendant. But whether it was or not, the County Court found from what did take place at the trial, that these facts were not controverted; and such finding is conclusive, and not subject to revision by this court. After the plaintiff had made out a prima-facie case and rested, the defendant offered as evidence a copy of the record and appeal in the suit, Charles P. Murdock against Oaks, sent up to the County Court by the justice, containing the following minute of the recognizance in question: “ The defendant as principal, and Joseph Hicks as surety, recognized to the plaintiff in the sum of fifty dollars, for the prosecution of said appeal, in due form of law ; ” and the same was received by the court subject to all legal objection thereto. . It will be perceived that Joseph Hicks is the party named as surety in the above minute of recognizance, instead of Daniel J. Hicks; and, if the same is to be regarded as the record of the recognizance, the issue on the plea of nul iiel record, as the pleadings stood, should have been found for the defendant. But it is not a record that can be declared upon as such; nor is it admissible under the plea of nul tiel record. It is simply such a minute as will en [688] able the justice to make out a recognizance in due form. Brackett v. McLeran, 23 Vt. 90. It ought therefore to have been excluded; and this, in effect, the court did, by disregarding the same, and holding that the certified copy from the records of the justice must be taken to be the true copy of the record of the recognizance in suit. Had the court not been satisfied of this, they undoubtedly would, on motion, have continued the case, that the justice might come, or be brought into court, with his record, and verify such copy or correct it. Tufts v. Aiken, 13 Vt. 490. But no such motion was made ; and the court having found that the certified copy, put in evidence by the plaintiff, was a true copy of the record in question. Such finding is conclusive. Judgment affirmed.