Leveringe v. Dayton

WASHINGTON, Circuit Justice. The plaintiff relies upon a record to prove payment of a certain sum composed of principal, interest and costs, under a judgment and execution against him. But the paper produced is no record of a judgment or execution; it is a mere minute of the proceedings of the court, taken by the clerk to enable him to make up a record. The paper contains no judgment, nor even the minute of a judgment for any sum at all, unless we are to connect the figuring with the general entry, “judgment for the United States,” and then conclude that the aggregate of the sums stated is that for which the judgment was rendered; which would be going much further than any court in my opinion ought to do. In short, this paper does not inform us that the action to which it relates was on a bond in which the plaintiff was surety, or what was the nature of the demand; for what sum the judgment was entered, or the execution issued. I do not say that the record need be made out with the same precision in matter of form, as if it were to accompany a writ of error to a superior court But the proceedings should be stated, and the judgment ought to have substantially at least the form of a judgment. The plaintiff’s counsel then offered a paper headed thus: “United States v. Dayton and Leveringe, in the district court of the United States, capias satisfaciendum,” with an acknowledgment annexed, signed by the marshal, that he had received of Leveringe, one of the defendants above mentioned, the sum of $1718 in full, for debt, interest and costs in the above suit. This evidence was likewise overruled. WASHINGTON, Circuit Justice. This paper contains a receipt of principal, interest and costs, not by the United States or their agent, but by a person styling himself marshal. Where was his authority to receive even the principal and interest of the debt due to the United States; much less the costs? A judgment and execution would have amounted to such an authority, but no sufficient evidence of either has been given. The plaintiff’s counsel then offered the plaintiff’s ledger, proved by a witness to contain original entries, in which is an account raised against Dayton and Weight-man, and the following debet, viz. “To duties, $1602.82 cents.” The counsel admitted that this would not be good evidence at common law, but insisted that it was admissible according to the regular practice of the courts in this state. Judge Rossel stated a case in which evidence of this kind had been admitted, and the judgment of the court, in which it had been so admitted, was for that cause reversed by the supreme court. WASHINGTON, Circuit Justice. The case mentioned by the district judge is conclusive. The evidence must be rejected. The plaintiff then consented to be called, and a nonsuit was entered.