Boomer v. Laine, 10 Wend. 525

Boomer v. Laine

10 Wend. 525 | N.Y. Sup. Ct. | 1833

By the Court,

Nelson, J.

In support of the judgment of reversal rendered by the common pleas, it is urged that the justice erred in admitting parol proof of the judgment in the suit in which the bond declared on was given, and that therefore the judgment of the justice was rightly reversed; in answer to which it is said that the proof being by the oath of the justice before whom the proceedings were had, the evidence was competent within a provision of the revised statutes, 2 R. S. 270, § 248. The terms of the statute would seem to warrant such conclusion, yet I cannot think that such was the intention of the legislature^ or that the section referred to necessarily requires such construction. In the preceding section, the legislature had provided for the proof of a justice’s judgment by a transcript from his docket, authenticated in a particular manner; and where, in the next section, it is said, *527et The proceedings in any caxise had before a justice may also be proved by the oath of the justice,” I apprehend that no more is meant than that the docket may be proved by the justice, in the manner that justices’ judgments were proved previous to the provision malting transcripts evidence, i. e. by the production of the docket, verified by the oath of the justice; and not that the justice may give parol evidence of the contents of the docket In Posson v. Brown, 11 Johns. R. 166, it was decided that parol evidence of the proceedings before a justice is not the highest or best evidence in the power of the party, and the judgment in that case was reversed on that ground, though the justice himself was the witness. The revisors, in their note to § 248, speak of it as declaratory of existing adjudications, and cite 3 Johns. R. 429, which sustains the revisors, as I understand the section. The justice therefore erred in receiving parol evidence of the judgment of Boomer against Way, and the common pleas did right to reverse his judgment.

The justice correctly overruled the objection to the parol proof of the contents of the bond; its non-production being sufficiently accounted for. He was right also in rejecting the evidence offered by the defendant, that Way had sufficient property to satisfy the execution against him at the time it was issued, (on the assumption that the judgment had been duly proved,) as the return of the officer was conclusive on that point, 2 R. S. 240, § 77; and I am of opinion that he also decided correctly on the question of jurisdiction. In actions of debt, covenant and assumpsit, wherein the debt or balance due, or the damages claimed, do not exceed fifty dollars, the justice has jurisdiction. 2 R. S. 225, § 2. By the next section, it is declared that an action of covenant may be maintained in a justice’s court on the condition of a bond, although the penalty exceeds $50, if the condition is for the payment of a sum of money not exceeding $50. This section is obviously declaratory only of what the law was at the time of its enactment ; it introduces no new rule. By the very terms of the second section, the action of covenant may be sustained upon the condition of any bond where the damages claimed do not exceed $50; and the third section should not be construed as restraining, in any manner, the construction to be fairly *528given to the second section. There is no reason for limiting in suits before justices, the action on bonds the penalty of which exceeds $50, to those, which are conditioned for the payment of money only ; there is nothing which requires such limitation, save the maxim of expressio uniws est exclusio alterius, which, it is conceived, cannot be applied literally in the construction of the revised statutes. It is well known that many principles and rules of the common law, as well as of adjudged cases, are incorporated into those statutes merely for the sake of making them statute law, and for no other purpose; and the literal application of the above maxim, in many cases, would be productive of great and serious inconvenience. For the reasons, however, above assigned, the judgment of the common pleas must be affirmed.

Judgment affirmed.