6 Blackf. 63 | Ind. | 1841
Scire facias against bail for the stay of execution issued by a justice of the peace. Judgment against the defendant by default before the justice. Appeal to the Circuit Court. Judgment for the plaintiff.
The scire facias was issued on the 27th of April, 1840. It recites a judgment rendered by the justice against the original debtor on the 14th of November, 1839, and alleges that the
The matters urged as errors are, 1, That the action was not dismissed; 2, The admission of the transcript of the original judgment; 3, The admission of the transcript of the entry of bail for the stay of execution; 4, The rejection of the special picas, and of the corresponding evidence.
None of these objections can be sustained, though some of' them are plausible.
First—The scire facias must be considered as a declaration. The cause of action which it alleges is, that the defendant
Second—The objections urged against the transcript of the original judgment as legal evidence are, that the judgment is a .nullity, and that the transcript was not sufficiently authenticated. The first of these objections is founded on the supposition that the justice had no jurisdiction over the subject *matter which gave rise to the judgment, because the note which was filed as the cause of action in that case was, upon its face, for a sum over $100. But as the amount actually demanded and recovered was under that sum and within the jurisdiction of the justice, the presumption is that the note had been reduced by credits. In which case, the justice was authorized to take cognizance of it. R. Stat., 1838, p. 364. As to the other objection, we find on examination that the certificate of the justice includes in its terms the transcript of the original judgment, as well as that of the judgment from which the appeal was taken; and this, we think, is a sufficient authentication of both.
Third—The plaintiff in error contends .against the admissibility of the transcript of the entry of bail also upon two grounds. The first is, that the transcript being but a copy, was illegal evidence; and the other, that there was a variance between the entry of bail shown by the scire facias, and that shown by the transcript. In answer to the first objection, it is sufficient to refer to the statute which provides that copies of the proceedings of justices in this State, duly certified, shall be received in evidence. R. Stat., 1838, p. 274. Bail for the
*Fourth—The special picas which were rejected, and the evidence that was excluded, were correctly dealt with, because they were attempts to falsify, collaterally, the return of an authorized officer, which can not be done. Hamilton v. Matlock, November term, 1840. Burger et al. v. Bechet, at this term. . ,
Per Owriam.—The judgment is affirmed, with 2 per cent. damages and costs.