Headnote
To prove the judgment of a justice, in an action before himself, the mere production of the original docket containing the proper entries is enough; no extrinsic . evidence of its identity or authentiéity being requisite.Error to the Chenango C. P. Smith sued Frost before a justice of the peace, and declared in trespass de bonis &c. Smith was a constable, and claimed the goods in question under a- levy made by him in virtue of an execution. The judgment on which the execution issued was in favor of Hill and Daniels, against one Sherwood, and was recovered before the same justice who tried the present cause. Frost claimed the goods by virtue of a sale from Sherwood prior to the levy, which Smith insisted was fraudulent in respect to creditors. The cause was tried by jury. It was objected on the- trial that Smith was bound to prove the judgment as well as the execution and levy, before he could be allowed to attack the sale to Frost on the ground of fraud; and thereupon the justice took his docket, turned to the page where the judgment and previous proceedings were entered, and stated to the counsel for the respective parties, in the hearing of the jury, that he had entered the judgment, mentioning the day. The entry was not read to the jury, nor did either party request that it should be. The jury found a verdict in favor of Smith, on which the justice rendered judgment; whereupon Frost caused a certiorari tobe brought to the common pleas, and the judgment was there reversed. The reversal was based upon a supposed deficiency in the proof of a levy; but this branch of the case being unimportant, the facts in relation to it are omitted. After judgment in the common pleas, Smith sued out a writ of error.
H. Van Derlyn, for the plaintiff in error.
H. R. Mygatt, for the defendant in error.
The common pleas clearly erred in considering the proof of a levy deficient. There was abundant evidence of that to warrant the finding of the jury.
To the objection that a judgment must be shown, the justice answered by opening his docket at the proper place and averring that he had entered a judgment. Neither party insisted on going into particulars; and the question is, whether the judgment was sufficiently proved. The docket should, before the revised statutes, have been proved as the general docket of the justice, with his handwriting; or his official certificate required by the then statute should have been produced. Less, however, will now do. (2 R. S. 196, 2d ed. § 245.) By the true construction of the section referred to, the docket of a justice is evidence per se, when the cause is before himself, just as would be an original record in a court to which it belongs. The vertificate of the justice is necessary only when a transcript is relied on.
The judgment of the common pleas should be reversed, and that of the justice affirmed.
Ordered accordingly.