#### Hamilton v. Wright & Parrish.

From Granville.

A Justice of the Peace of Granville County rendered a judgment in Franklin, in an action on the judgment, this fact may be proved, an'd the Justice is a competent witness.

Justices judgments are not records, and do not prove themselves ; they resemble records in one particular, viz. their merits are not examinable in an original suit, and assumpsit will not therefore lie on such judgments.

it is not proper to permit a special plea to be added after the jury is impannelled.

This was an action originally commenced' by warrant, and by successive appeals brought into Granville Superior Court, where it was tried before Norwoob, Judge.

On the trial, and after the Jury had been charged witii the cause, the Defendant’s attorney moved for leave to add a special plea, that the judgment on which the present warrant had been brought, was rendered in the County of *Franklin,*by a Justice of the County of *Gran-'trille,*but the presiding Judge refused the leave asked. Tiie Plaintiff (ben produced and duly pro'ved the original warrant, the judgment thereon against the Defendant *Wright,*the stay of execution by the Defendant *Parrish,*on which the present suit was founded. These all appeared to be perfectly regular; the judgment appeared to have been *confessed*by the Defendant *Wright.*

The Defendant then called as a witness, *Jintlerson Pas-chalk,*the Justice before whom the judgment appeared to have been confessed, and asked him *where*the said judg-*284me,nt was coni eased; upon which Defendants’ counsel briiia,' asked to state the purpose and shew the relevancy of his enquiry, said that he expected to shew by this wibiess that the judgment was confessed at a place called Plank Chapel, and then by another witness that Plank Chape! was in *Franklin*county.

Plaintiff’s counsel then objected to the question put to *Paschall.*and the Court sustained the objection. There was a verdict, for tiie Plaintiff, and a motion by Defendants for a new trial, 1st, for the refusal to permit the special plea to be added, and 2d, for the rejection of *Pas-chall’s*evidence. Motion overruled and judgment rendered, from which the Defendant *Parrish*appealed.

*Manly,*for appellant.

*Badger*& *Hawks,*contra.

Tayxok C. J. —

This was an action originating by way of warrant, in a paper purporting to be a judgment rendered by a Justice of the Peace in the County of Granville. On the trial the Defendant offered to plead and prove that the judgment was rendered in the *county*of Franklin by a Justice of *Granville;*the plea and evidence were rejected, and the propriety of this rejection is now argued on the authority of *Bain*v. *Hunt,*decided in this Court. But in that case, no question arose as to the proof of the record, it being assumed and admitted throughout, (hat the judgment of the Justice had an authentic existence. The only enquiry was, as to the effect of such a judgment when *proved;*and every observation and argument tending to show its conclusiveness upon the right of the parties to it, would have been irrelevant upon the supposiiihn that the judgment declared on, had no exisfence in point of fact.

In this case, the point in contest, is altogether different; it relates solely to the existence of the judgment set up; the. Defendant does not object to it, because it is unjust, or founded on a misconception of the merits of the case, for these inquiries can clearly never he made in an *285original suit, founded on the judgment; but because no judgment was given. It is impossible to apply the rules of evidence, established in relation to the authentication of records of Courts of Justice, to the proceedings before Magistrates. They cannot be decided on by inspection, they have no seals, they keep no copies of their proceed-' ings, and the knowledge of their official existence is necessarily confined to the county of their residence. No provision is made by law for the authentication of their judgment, except in one instance; and, in the absence of such legislative provision, the enquiry must continue to be conducted, as it heretofore has been, by proof of the Justice’s hand-writing either by himself or others, and by proof that, the judgment was given by him, then a Justice, within the limits of his jurisdiction. All these considerations arise out of the issue to bedecidcd; for if he were not a Magistrate in the County where the judgment was rendered, at the time of its rendition, there is consequently no such record, and the issue is maintained 'on the part of the Defendant.

If the enquiry as to the jurisdiction is excluded, the same rule will apply to the exclusion of an enquiry into the official character of the individual who holds himself out to the public as a Justice of the Peace; and themon-sequence will be, that any individual may assume that character, and sign papers, which shall have the force’of judgments against other persons, simply on the proof of his hand-writing, and that many such papers had been signed by him. When so much importance is attached to the judgment of Magistrates as to render them unex-aminable in another suit, their existence and authenticity ought to be established beyond controversy; and since the extensive civil jurisdiction of Magistrates in this state, has placed their judgments on an anomalous footing, and beyond the strict application of the rules of evidence pertaining to the regular judgments of Courts, their legal existence ought to be ascertained by every reasonable enquiry, before they are ultimately enforced;

*286For these reasons, 5 think the evidence offered ought to have been received, and that there should be a new trial.

Haii Judge. —

It cannot he seriously contended, that the Judge erred in'refusing' to suffer a plea to be entered, after the Jury were impamieiled ,* to do if or not, depended upon his discretion under all the circumstances of the case.

The evidence offered to shew that the judgment was confessed without the limits of the County of Granville, I think, ought to have been received. The case of *Bain*v. *Hunt,*(3 *Hawks 572,)*does not stand in the way *t,*that can decide only, and was intended to decide only, the *effect*of a judgment given by a Justice of the *Peace;*but by no means to decide either as to the quantum, or species of evidence necessary (o prove the existence of such judgment ; no such question was before the Court. The only question there submitted was, whether assump-sit would lie on a judgment rendered by a Justice. The Court decided that it would not, and *quoad*that point, and that only, compared it to a record, which precludes all future discussion, as to the subject matter of which it is evidence; but the question as to proof of its existence as before observed, was not touched. Such judgment is the judgment of a Court not of record, therefore cannot be established as a record, but is to be established as a public writing, not of record, by parol evidence. Parol evidence may he met by parol *evidence;*of course, when the judgment was proved in this case, parol evidence might be received to shew that the judgment, although proved, was confessed without the limits of the county. For these reasons, I think the rule for a new trial should be made absolute.

Henderson Judge. —

In saying, in the cáse of *Bain*v. *Hunt,*decided twelve months ago, that an action of assumpsit would not lie on a judgment rendered by a single Justice of the Peace, nothing more was intended tp he *287«said, than that such a document contained in itself *an inference of law,*that the sum therein .adjudged by the Justice to bo due from the Defendant to the Plaintiff, was In Jaw due. and that upon its being proven to be such a judgment, the debt itself was proven, and that in that respect it differed from such documents, writings and promises, on which an action of assumpsit could be supported, and which of themselves contained only inferences of fact, which must be drawn by a Jury if controverted, before the inrferenceof law, that there was a legal obligation could arise. A note not under seal, being only a promise to pay, creates not of itself an obligation to pay, there must be a consideration for the promise to create a legal obligation, this fact must be found by the Jury or admitted on the record before the Court can draw the inference, of law, that the promise creates that legal obligation. It is true that the Jury may, from the note, make that inference, as it is evidence that the maker has so much money in his hands belonging to the payee, as lent, or had and received, but still it is matter of fact for the Jury to infer, and which inference they are well warranted in making from the nature of man ; for it is not to be presumed that a person would give that deliberate evidence of a promise to pay, without having received an adequate consideration. In the case of *Stamps*v. *Graves,*decided at the last term, I have expressed my opinion as to what operation the statute of *Jhine*lias upon such notes, I shall not here repeat it. As an exemplification of the effect of this doctrine, were the Jury, in a special verdict, to find that the Defendant had at such time and place made his promissory note to the Plaintiff wherein he had promised to pay him one hundred dollars, *and that*lie hath not [raid the same or any part thereof, and pray the advice of the Court as to the legal effect of the note, the Court would be bound to render judgment for tbc Defendant, because the Jury had not found that the note was given on any consideration, but had they have added that the note was given for so much *288money lent, a horse, goods sold, or any other adequate consideration, judgment would be rendered for the Plain*tiff;*but if instead of a note not Under seal, the Jury had found that the Defendant had made an obligation under seal, and asked the advice of the Court, judgment would have been rendered for the Plaintiff because a writing under seal imposes an obligation without a consideration. As an action'of assumpsit will not lie on such sealed instrument, as it of itself imposes a legal obligation, so the Court said, in the case of *Hunt*v. Bain, that as the Justice’s judgment of itself imposed a like obligation, an action of assumpsit would not lie on it $ in the same manner, if a person binds himself by a valid obligation to perform a certain act, as to deliver corn, a horse, or the like, as the specialty itself imposes the duty, an action of assumpsit will not lie on it, but the party must bring an action of covenant. If I am asked the reason why an action of covenant, or an action of debt, is the proper remedy, and not an action of assumpsit, the only answer I can give is, that it has pleased our forefathers to prescribe different forms of action for different injuries. It may be shewn, from the plea in the action of fassumpsit, that it is not adapted to such instrument or document as of themselves import an obligation, the general issue is non assumpsit, which denies the liability to pay without denying the instrument or document from whence that liability arises; if that document of itself imposes an obligation, it is putting in issue the legal inference, it is admitting, and at the same time denying, the liability of the Defendant. Thus, if to debt on bond or record, *nil debet*is pleaded, it is bad, for by not denying the bond or record the debt is admitted, it in fact amounts to a .demurrer; but such plea is good to an action of debt on a note without seal, for you may admit the making of the note and yet deny the debt, for the debt arises not from the note alone, it must be made on consideration, The decision of *Hunt*v. *Bain*only establishes this, that a Justice’s judgment is evidence of a debt itself, and therefore an action of assumpsit will not lie on it.

*289But it does not follow, as was contended in the argument of tills case, that Justices judgments are records, . *n .*... ,. i,, because an actiou ot assumpsit will not lie upon them, or because being established, they are conclusive evidence of a debt, or because they are entirely unlike foreign judgments, or judgments of inferior Courts of England ; for a bond is unlike all these, and yet is not a record, and the expressions used by the Court in delivering the opinion *of Hunt*v. *Bain,*must be understood in reference to the object in view — they relate to that quality which they possess in common with records of concluding the parties from denying their affirmations, and not as to the mode of proving them. It was never thought that they, like records, carried on théir face, such marks of their own verity that they proved themselves, and did not receive trial by jury, witnesses or otherwise, but only by themselves. It is easy to define what a record is, but it is not so to declare which are Courts of record, and which are not. Sir Edward Coke’s definition, is more like pointing out which are the Courts of record in England, than giving the distinguishing feature of such Court. Other definitions arc equally unsatisfactory. Were I to attempt one, I fear that it would be still more faulty; but we may with safety say that a Justices Court is not a Court of record, because the law lias not prescribed a mode of authenticating and perpetuating their proceedings, because their procedures have not upon their face those indicia of verity which prove themselves upon a bare inspeximus,' and that they require the aid of proofs dehors themselves ; and from their nature and multiplicity, being capable of being made any where in the county wherever the Justice may be, and being under the private seal' and signature of the Justice only, it is not to be believed that the Legislature intended that they should be received as genuine and authentic without the aid of proof; but this interferes not with" the verity of their affirmations after having been proven. It is said, that it must be a record, because it was said in the case *290of *Hunt*v. *Bain,*to be entirely unlike the proceedings of the inferior Courts in England, and also unlike the judgments of a foreign Court, therefore it must be the judg-ment °f a Court of record. Does it follow that the Legislature cannot create a new class of documents, or that of necessity, because it cannot fall into one class, it must fall into the other, where the two classes embraced only all those which were in existence at the time, and not those afterwards formed ? It is admitted, that if a document was formed, it, would fall into that class already in existence, with which it possessed common properties ; but if it possessed common .properties with neither, it would then form a class of itself. Such is this Justice’s judgment, it is unlike the judgment of a Court of record, because it wants the power of proving itself; it is unlike the judgment of the inferior Courts in England and foreign judgments, because it differs from them in this, it& affirmation cannot be controverted, and these differences arise from this. As to .a foreign Court, we know nothing of the justice of their laws; we presume they arerjustj, but we do not know it; we will permit the ad verse party to destroy that presumption by proof, and more especially as to the matter of fact, and even as to law, if they are shewn to be unjust; we will not enforce an unjust judgment of a foreign Court, hut will lean much in favor of their justice, and call in even the aid of their policy to shew them to be just. As to the judgments of the inferior Courts in England, they are mostly local, governed by particular laws, frequently held by private individuals, and do not proceed according to the course of the common' law, and therefore, their decisions are not reviewed by means of writs of error, the proceedings in which are according to the laws of the land, and they alone form the rule of decision, there is no gradation from them up to the Superior Court. It is true they are su-perceded occasionally by the King’s Bench, by means of certain discretionary writs, which issue as it were on thp supplication and not on the application of the party. To *291make their decisions more than *prima facie*evidence, ■would operate an injury on the suitors, because they i., , . , . .. >, could not ha\e them examined in the regular way, or as a matter of right. As to the Courts held by our Justices, they are entirely different, they are governed by the general laws of the land, and there is a regular gradation to the Court of supreme jurisdiction, by way of appeal, which of itself must make their judgments conclusive.

I have taken up much time to explain the case of *Hunt*v. *Bain,*and to shew that this case is unaffected by it, because that case lias been much misunderstood, and if not corrected, might lead to consequences never contemplated by the Court. The Justice’s judgment not proving itself, must therefore be supported by proofs, and therefore may be shewn to be different from what, upon the face, it purports to *be;*it may be shewn to he a perfect nullity. The jurisdiction of Justices of the Peace being confined to the counties for which they are appointed, the Granville Justice had no jurisdiction in Franklin, his acts within the latter county, were those of a pri* vate *individual;*by proving therefore, that the transac-. tion took place in Franklin, before a person who had no jurisdiction to actas a Justice of the Peace in that county, desti’oys *its*apparent official character, and reduces it to a mere statement or certificate of a private individual, and should have been received. The other objection, that the Justice should not be heard to impeach it, cannot prevail. The rule is, that a party shall not allege his own turpitude or departure from correctness as a protection; but there is no such rule in our law, infamy and interest are the only grounds of excluding a witness who has sufficient understanding to know and feel the obligations of an oath

There must be a new trial.

Judgment reversed.