#### PENEY *v.*GILLILAND.

Justice’s docket — maliciously issuing a writ — want of probable cause — non suit»

A justice’s docket is a public record not to be removed into court as evidence, except in peculiar cases; in ordinary cases, a transcript is evidence of its contents.

In case against a justice for issuing a writ against a defendant, and giving judgment and execution without authority from the person named as plaintiff in the suit, some evidence must be given to show the want of authority in the justice; he will not be presumed to have acted without authority.

A court of dernier resort will give leave to supply a defect in the evidence before ordering a non suit.

Case for malfeasance in office. The declaration alleged that the defendant was a justice of the peace, and maliciously intending to vex the plaintiff, issued a *scire facias*against him, in the name of one J. P. without his knowledge, when he knew the s'aid J. P. had no cause of action, for the sole purpose of oppression; that he subsequently entered judgment, issued execution and sacrificed the plaintiff’s property. Plea — not guilty.

Brazee, for the plaintiff,

offered in evidence, a transcript from the defendant’s docket, to prove the proceeding had before him.

*39
      *Murphy,*for the defendant,

objected.

1. The original docket, and not the transcript, is the best evidence.

2. That there is a variance.

3. The original writ of *scire facias*should be produced.

*Allen*and *Murphey,*for the defendant,

moved for a non suit.

1. Because there is no evidence that the defendant is a justice.

2. No proof of identity of the parties.

3. No proof of the judgment complained of.

4. No proof of malice in the defendant, or that there was no cause of action in the suit against the plaintiff.

*Brazee,*contra,

cited 3 *Cow. R.*206.

Br the Court.

The evidence may go to the jury. The original docket is not required. In that book, the public have an interest, and it should remain stationary in the justice's office, unless public justice requires its removal into court. In such cases, strong circumstances must be shown to induce a court to order the removal of the book; and, transcripts are uniformly received. But, the paper offered, is the written acknowledgment of the defendant himself. No variance is pointed out by counsel, and we do not perceive any. If it be true, which we neither admit nor deny, that for any purpose, the original writ of *scire facias*should be produced, still, that is no objection to the transcript. They are distinct items of evidence, and must, of course, be offered separately. ■

After the plaintiff had closed his. evidence,

By the Court. The three first objections are easily disposed of. The defendant, in the transcript, acknowledges himself a justice of the peace,and that he rendered a judgment, on a *scire facias,*between persons of the same name as the parties described in the declaration. It cannot be denied but the tendency of this is to prove the case; the effect of the testimony is with the jury. In this kind of action, malice, and the want of probable cause, must be averred, and some evidence offered to sustain the averments. In the case before us, something should be given to the jury, to show that J. P. had no cause of action, and did not order the *scire facias.*There is no evidence on either of these points, and the transcript read standing-alone, destroys the plaintiff’s action, for the justice must be presumed to have acted upon authority, unless the contrary be shown. But as this is a court of dernier resort, we will allow the plantiff to supply the evidence now, if he can do so. That not being done’, a

Non suit was ordered.