Brown v. Van Deuzer

10 Johns. 51 | N.Y. Sup. Ct. | 1813

Per Curiam.

The question arising upon the trial was, whether the plaintiff Brown had sued out a writ before the September term of the common pleas, according to the condition of the recognisance. This was a question of fact triable by jury, and not by record, notwithstanding the averment of proul patet per record~um. The entry on the record could not be conclusive of that fact; for then, as was observed in the case of Conry v. Jacob, (1 Sid. 220.) upon a similar question, it would be in the power of an attorney to make an entry upon record of the issuing of the writ, though the writ had never issued. Such an entry is like a comrwittitur entered of record. It does not estop the party to deny the fact, and it shall be tried per pais, and the record is but evidence and not conclusive. (Keeling, Ch. J. in Middleton v. Manucaptors of Sylvester, 1 Sid. 216.) In this case, there was not only a record of the award of the writ, which was sufficient to satisfy the unnecessary averment in the declaration, but parol proof was also offered to show the fact, and that the deputy sheriff had made attempts to serve the writ, and that he was now dead and the writ lost. There does not appear to be any good objection to this testimony. It went to supply the non-production of the writ, and ought to have been received. It was not analogous to those cases in which the record is the sole and exclusive test of a fact.

Judgment reversed.