#### POOL *v.*McCULLUM.

Certifying justices docket, when office vacant.

By the justices act of 1831, if the office of a justice becomes vacant, his docket or transcript of all unfinished business before him, shall be certified by the justice to his successor, or some other justice, or in case of death, by the executor or administrator, and the justice receiving is authorized to pioceed thereon to finish the same; this, as to cases where judgments are entered, is only directory, and if omitted, proof is required as befoie the statute.

Error to the Common Pleas. The suit below was assumpsit by McCullum. He declared — 1st. Upon an agreement, to find materials, and put a dwellinghouse under roof, in three weeks. Breach, the not finishing it for six weeks, by which the house was exposed and injured, and work inartificially done. Whereby, Pool became liable to McCullum for a large sum, over fifty dollars, in consideration whereof he promised, &c. 2d. In the common counts for money, goods sold, and work and labor. Plea, non assumpsit, with notice of a setoff for goods sold, work, &c. an account settled, a judgment for seven hundred and thirty-one dollars, recovered before a justice, 28th April, 1832.

On trial, the plaintiff proved, that he lent the defendant an ox-yoke, which the defendant sold, received pay for, and promised to pay the plaintiff in wheat. The defendant then offered a manuscript book, purporting to be the docket of justice Edsel, containing an entry of a judgment between those parties in favor of Pool, and offered evidence that the book was the justice’s docket, and the entry was made by him at the time of the trial; that the term of *433office of the justice had expired, and he had left for Kentucky and parts unknown,without certifying, either his docket to his successor in office, or transcripts; and that the ox-yoke demand was settled in the trial before the justice, and included in that judgment. This evidence being objected to by the plaintiff, was ruled out by the court, and the order excepted to. The court was then asked by the defendant, to charge the jury — 1st. That to entitle the plaintiff to recover on the first count, the jury must find, the contract was to do the work in three weeks, and it would not be sufficient if the contract was to do the work in any other time. This the court refused; but they charged the jury — 1st. That to recover for the unskilful work, it would be sufficient for the plaintiff to satisfy them that the agreement was, to perform the work at any time during the fall, before cold weather. 2d. To recover for the breach of the first count, as to time, the plaintiff must prove the precise contract; yet, if the work was done after the expiration of that time, the jury might consider it as tending to prove, that the time had been extended.

It is now assigned for error — 1. That the evidence relating to the offset was improperly ruled out. 2. That it was competent to prove a former recovery under the plea of non assumpsit. 3. That the court erred in charging the jury as to the time, and as to the proof of the precise contract.

Wright, J.

The justices act of 1831, (29 *O. L.*171) provides, that in case the office of a justice becomes vacant in any manner, his docket, or a transcript of all *unfinished*business before him, shall be certified by him, or in case of his death, by his executors or administrators, and delivered with the books and other property of the state to his successor, or to some other justice, upon which, the justice receiving the docket or transcript, may proceed to close up the business. This only affects unfinished business. If we are to regard a judgment unsatisfied, as unfinished business, which is the case before us, it would be productive of incalculable mischief, to hold this provision imperative, or essential to the right of the party recovering. To hold the law otherwise than directory, would, in case of the omission by the justice or his representatives, throw every thing done by the magistrate while in office, open to new litigation. If a justice absconds, leaving his docket,' you could not look to that to see what he had done, but as he omitted to certify his docket, all the unsatisfied judgments and suits pending, would be opened, and as if never entered. Such could never have been the intention of the legislature. Holding the law directory, the *434omission to certify leaves the cases where they were, and puts the party asserting a judgment recovered there, to proof of the judgement, as before the law was passed. The court, therefore, erred, in rejecting the evidence of the justice’s docket. The proof was admissible, under the notice of set off. The other points we need not consider. The judgment is reversed, with costs.