Croswell v. Byrnes — 9 Johns. 287

Majority

p. 287

Harry Croswell against Byrnes.

NEW YORK

Oct. 1812.

Headnote

On the issue of /L¡¿- tielrecord, the record of a judgment to^ebutwMch produced11? rule of the quent to the t?n5™itn asUe the irregular;. ly. It was held the entlT the ‘‘níinute? received?!?0 evidence aford, which ty,P°?dcl?be itself; but the vacatur must he enrolled, or entered of record. No proceeding is regardeda?matter of record, until it is enrolled. 1 °

IN error, from the Albany mayor’s court, or court of common v )leaS.

_ , , . „ Byrnes brought an action of assumpsit against Croswell, in the court below. The declaration was oil a bill of exchange, dated ihe 22d of September, 1810, for 124 dollars and 16 cents, drawn by Henry Wiswell, directed to the defendant below, by the name of Henry Croswell, payable to Byrnes, or order, on demand; which was accepted by Croswell, payable ninety days from the date.

The defendant below pleaded, 1. Non assumpsit; 2. Byrnes, in February term, 1811, sued the defendant in the may- or’s court of Albany, on the same bill, &c. and recovered judgment for 145 dollars and 25 cents, prout patet per recordum, &c.

The plaintiff replied nul tiel record. There was a trial by record, and Croswell did not appear, nor produce the record, on

p. 288

which judgment was given for the plaintiff, Byrnes, on the second plea. On the first issue there was a trial by jury, and a verdict found for the plaintiff on which judgment was given by the court below.

The bill of exceptions stated the pleadings and issues, and that the defendant, on the trial of the second issue, produced the record in support of the second plea, which record was set forth. It stated the declaration, in which the bill is described as drawn on Harry Croswell; that a judgment was entered by default, for want of a plea, for 145 dollars and 25 cents, damages and costs, and the judgment signed, and filed the 9th of March, 1811. It appeared further, that on the trial of the issue by record, after Croswell had produced the record above mentioned, the plaintiff in order to disprove it, produced the book of the minutes of the entries in the. court below, in which was entered a rule, in August term, 1811, by which the default, and all subsequent proceedings, Were ordered to be set aside, for irregularity, with costs, and that Croswell be discharged from custody on the ca. sa. issued on that judgment. The court below decided, that the entry of the rule destroyed the record of the judgment; and that there was, therefore, a failure of record. It also appeared that, on the trial of the first issue, the plaintiff produced the bill of exchange,1 which was directed to Mr. Henry Croswell; on which was written, « accepted, payable in 90 days. September 22, 1810. H. Cros» 7vell.” The defendant objected, that this was not the same bill as that described in the declaration, as drawn on Harry Croswell; .and that there was no such custom of merchants, as to a bill so accepted ; that the parties were not merchants, and that the acceptance was not suEcient to charge the defendant, and moved for a ¡nonsuit. The court below intimatingan opinion that the alleged variance was fatal, the plaintiff produced the original declaration, filed on the 11th of February, 1811, in which the bill is stated to be drawn on Henry Croswell. The defendant’s counsel insisted that the copy of the declaration served ought to govern, and not the original; but the court decided that the original declaration on file must govern, which was to be read Henry, and not Harry, and denied the motion for a nonsuit, on which a verdict was found for the plaintiff, under the direction of the court. To this opinion of the court a bill of exceptmis was tendered, which was signed and sealed by the recorder.^[1]

p. 289

The errors assigned were, 1. That the court below decided that the rule discharged the record, whereas the record produced was sufficient to maintain the issue of mil tiel record, and the rule was inadmissible. s

2. That the court ruled, as to the first issue, that the evidence was sufficient to entitle the plaintiff to recover.

3. There was no plaint filed in the court below.

4. That the record states that the defendant pleaded on the first Tuesday of August, 1811, whereas no plea was filed on that day.

5. That no replication was filed, as stated on the record.

6. That the record states that the issue was joined in September term, 1811, whereas the venire was issued long before.

The cause was argued by I. Hamilton, for the plaintiff in error,, and II. Bleecker, for the defendant in error.

It is necessary to state the argument on the first point only.

For the plaintiff in error, it was contended, that records, being of absolute verity, could be tried only by themselves.^[6] The ancient practice was to enter a recordatur. Where matter of fact is mixed with matter of record, it must be tried by a jury.^[7] A rule is not a record, but a minute only of the court. An estreat of a fine into the exchequer, is only a minute.^[8] A writ of error removes only the record and process enrolled, not a rule, an orí

p. 290

ginal bill, or a warrant of attorney.^[6] A rule cannot destroy or vacate a record. The maxim is, nihil tarn naturale quam, quidlibet dissolvi eo modo quo ligatur.^[7] A vacatur oí the judgment should have been entered and enrolled.^[8] A mere minute of a rule is not a record, nor can it affect a record.

For the defendant in error, it was insisted, that where a rule is obtained to set aside a judgment, even in this court, no entry of a. vacatur is ever required. The judgment is considered as a nullity after the rule.

On the issue of nut tiel record, a record of a judgment corresponding with the plea was produced, and to rebut that evidence, the plaintiff produced a rule of the same court, of a subsequent term to the judgment, setting aside the judgment for irregularity. There is no doubt of a competent power in the court to make such rule; but the question is, whether the entry of such a rule upon the minutes, is to be received as evidence against the record ? It appears to be contrary to all the well-settled’ technical rules upon the subject, to give the entry that effect. A record imports verity, and can only be tried by itself. The vacatur ought to be enrolled, or entered of record, as much as the rule for judgment. The 90urt could not receive the entry on the minutes of a rule for judgment, as evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrolment of the judgment ? The maxim in this, as well as in other cases, is, that nihil tarn naturale quam quidlibet dissolvi eo modo quo ligatur. (Jenk. Cent. 120.) To give an entry on the minutes that authority, would destroy the certainty, order and solemnity of enrolments; and it has been frequently held, that the courts cannot regard any proceeding as a matter of record until it is enrolled. (1 Salk. 329 , 1 Ld. Raym. 243. Jenk. Cent. 25.).

As the judgment for the damages is entire, and the plea of a former recovery went to the entire right of action, it becomes unnecessary to examine the other errors assigned, in respect to the trial of the issue joined on the plea of non assumpsit. The judgment rendered must he reversed in toto.

Judgment reversed.