M'Lean v. Hugarin — 13 Johns. 184

Majority

p. 184

M'Lean against Hugarin.

Headnote

where an láráen admit-in a justice's •«errecorA16m such formerac.-tion, is a,bar to anactionbrought ®n the subject of sucnset-oir. Parol evidénce ¡3 inadmissible oertfficate'ora. proceedings i‘n!h eause before

turntoeatccr(M5Me?atedofha merCtriaa tbenticated according to tbs * “ . * t ■ act, but not appearing to be under the seal of .the C. P., otherwise than that the clerk had stated, “ Witness Jt0d and seal ,-V it was held that it was to be inferred-that it was uuder seal. ..... ' • .

IN. ERROR, on certiorari to-a justice’s, court,

The defendant in error, who was plaintiff in the-eourt belo'Wj brought an-action of trover, to recover’the.vá-lue óí a spinning-"wheel. -The defendant pleaded the general issue, and a former . , action for the same cause, in which the present plaintiff .being ' ‘ . defendant, set off the presen t demand* which was tried- in that action.

The certificate of the. justice j of the-proceedings on théformer trial, (authenticated according to ‘the act, except that it does no|. appear that the clerk affixed the .sehl-.of the C. F., but it is only stated, “ Witness my 'hand'-aridpetti^y being prodncedj-theplaintiff below offered té^timon.y to; show" that the-demandfor the spinning;-wheel was withdrawn, and-not submitted to the

p. 185

justice : this evidence being admitted, and the fact being proved, the justice gave judgment for the plaintiff below.

The certificate of the former trial between these parties was sufficiently authenticated. It is necessarily to be inferred that it was, in fact, as it purports to have been, under seal, as required by the statute : at all events, no objection was made to its admission upon the trial j and it cannot, now, be called in question. Although the demand, in this case, sounds in tort, and might not, in strictness, have been admissible as a set-off on the former trial, yet if it were admitted without objection, and has been once tried, that judgment is conclusive with respect to this matter; and the only question is, whether-testimony was admissible to contradict the justice’s certificate of the former trial. This certificate clearly shows, that this same matter has once been tried.

The act authorizing the giving of such certificates, (1 R. L. 398. s. 21.,) declares, that it shall be good and legal evidence to prove the facts contained in such exemplifications. In the case of White and Hall v. Hawn, ( 5 Johns. Rep. 351 .,) this court decided that parol evidence of a former trial was inadmissible. In Posson v. Brown, ( 11 Johns. Rep. 166 .,) the same principle was recognised; and it was there said, that although the proceedings and .judgment before a justice, may not be technically a record, yet the material parts are in writing, and ought to be produced: that parol evidence was not the highest and best evidence: that the statute directing the manner in which such proceedings are to be authenticated, seems to regard them in the nature of a record. If, then, as has been settled by this court, parol evidence is inadmissible to prove the proceedings of a former trial, it must follow, as a necessary consequence, that such evidence is not admissible to contradict the written evidence of such proceedings. The judgment must, therefore, be reversed.

Judgment reversed.)