Payson v. Everett

By the Court. Berry, J. By Sections 127 <& 130, Cha/pt. 59, page 516, Pub. Stat., a Justice of the Peace was required in answer to a certiorci/ri, to make return of “all the testimony and proceedings in the case. ” Under the familiar rule by which a public officer is presumed to have done his duty, the presiimption would be (nothing appearing to the contrary) that a return in any given case was made in compliance with the law, and therefore contained “ all the testimony.” We think the learned'Judge below, erred in assuming that in the absence of a certificate from the Justice, stating that his return did contain all the testimony, the presumption would be that evidence other than what appears on the return and sufficient to sustain the verdict, was presented before the Justice. Prosser vs. Secor, 5 Barb. (S. C.) 610, relied upon by the Court below to sustain the view taken, as to the mattér of presumption, related to a statute materially differing from our own. But a statute subsequently passed in New York, and quite similar so far as this point is concerned, to sections 127 and 130 above referred to, has received the construction which we put upon these sections. Calligan vs. Mix, 12 [219] How. Pr. 495; Orcutt vs. Cahill, 24 N. Y., 582; 26 N. Y. 488. "We observe also at tbe close of tbe Justice’s report of testimony tbe following words, viz: “ Tbe above is all tbe testimony. ” Though tbis is neither a formal nor full certificate, we think tbat the liberality of construction ordinarily exercised, for tbe purpose of upholding tbe acts of Justices of tbe Peace, would require us to bold it sufficient, if any such certificate was necessary. Wilson vs. Ebwood, 28 N. Y., 120. On tbe basis therefore tbat tbe testimony returned by tbe Justice, was all tbe testimony in the case, we have to enquire whether there was any competent evidence to sustain tbe verdict. To prove tbe worthlessness of tbe bank bill, a point material in tbe case, tbe plaintiff below introduced, against objections, certain pamphlets commonly known as Bank Note Detectors. These were manifestly inadmissible, for they are merely tbe opinions or statements of tbe writers or publishers, not given under tbe sanction of an oath nor with any opportunity for cross-examination. They stand upon no better footing than tbe opinions or statements of medical writers even of standard reputation, which are not allowed to be read to a jury. Ashworth vs. Kitherege, 12 Cush. 193; Com vs. Wilson, 1 Gray, 338; Collier vs. Simpson, 5 C. & P. 73. Tbe only other evidence offered to establish tbe worthlessness of tbe bill was tbe testimony of Mealey, who says,- “I am somewhat acquainted with tbe currency of tbe country. ” (Tbis almost any man might say.) “ I do not consider myself an expert in money according to tbe strict definition of tbe term.” “It is my opinion tbat tbe bill is worthless. ” Tbis opinion was received under objection. As Mealey does not show himself qualified, or rather shows himself not qualified, to express any opinion upon tbe character of tbe bill, we cannot perceive that bis testimony is entitled to any consideration. These attempts to prove tbe worthlessness of tbe bill [220] were clearly futile, and had there been other testimony to the same point (and we discover none) the admission of this incompetent evidence, bearing as it did directly upon questions material in the case, would have called for a reversal of the Justice’s judgment unless it was clear that such incompetent evidence could not have affected the result. Hahn vs. Van Doren, 1 E. D. Smith 411; Mc Allister vs. Sexton, 4 Ib. 41. As to the taxation of the defendant’s costs against him by the Justice, that was clearly erroneous as held below. The testimony of TL W. Wright introduced to prove that the defendant (appellant) had passed a $20 bill of bad money and been “taken up for it” was also incompetent. It had no. tendency to show that the bill in question in this action was bad or worthless. Testimony of this nature is sometimes admitted to show guilty hnowledge oh the part of a party charged with uttering counterfeit money, but not for the purpose of showing that the money uttered was counterfeit. 3 Gr. Ev., Sec. 111, Com. vs. Stone, 4 Met. 47. It sufficiently appears that the figures 30.65 given as the amount of the costs by the Justice were intended for $30.65. , The items composing this sum are entered on the docket and nobody could be misled. The omission on the part of the Justice to make a statement of the plaintiff’s demand, &c., on his docket as required by Sub-div. 4, Sec. 7, Chapt. 59, page 499, Pub. Stat., could not affect the validity of the judgment, especially when the pleadings were in writing and filed as in this case. See Hall vs. Tuttle, 6 Hill, 42; Humphrey vs. Persons, 23 Barb. (S. C.) 318; Robbins vs. Gorham, 25 N. Y. 595. But for reasons before given the judgment of the District Court must be reversed and the action remanded.