Frost v. Flint

Headnote

A certificate of a clerk or other officer, intended to be used as evidence on a motion, must be served with other papers for the motion, otherwise it cannot he read in evidence.

Motion by defendant to set aside service of declaration'and subsequent proceedings, for irregularity.

Flint, the defendant, swore that the declaration was served on him on the 10th day of December, 1845. It was stated in defendant’s papers that no declaration in this cause was filed on the 10th of December, 1845, or any time previous thereto, and offered to read a certificate from the clerk to show that fact, which was objected to, because it had not been served; the objection was sustained, and the certificate of the clerk rejected for that reason.

Plaintiffs’ attorney produced a letter, in which he enclosed the declaration in this cause to the clerk at Utica, requesting it to be filed, which was dated December 10, 1845, which letter was returned to plaintiff’s attorney, and, as appeared from it, the words written across it, “Done December 10, 1845, J. L. B.” It was sworn to in plaintiff’s papers, that the letter was mailed at Fort Plain on the 10th, and received back *from Utica on the 11th December. On the 10th, in the evening, the declaration was served on defendant.