The only real question, in this case, is upon the ruling of the court of common pleas as to a certain paper relied upon by the defendant as a bill of particulars. The case came up by appeal from a justice of the peace, and accompanying the papers sent up there was an instrument of the following purport: “ Worcester, July 13th 1843. Mr. Estes Smith: Sir, Please- pay James Reidel and Hezekiah Smith, ten dollars in your line of business, and I will account to you for the same. James Kirby, Jr.” To this paper there was neither caption, nor any filing or memorandum indorsed thereon, indicating the purpose for which it was used before the justice. The counsel for the defendant insisted, before the court of common pleas, that on the trial before the justice, this document was introduced and used as a bill of particulars, and offered parol evidence to establish the fact; and he contended that, in the further proceedings in the cause, it was to be taken as such, and that the trial should now proceed on this assumption, and the plaintiff be restricted, in his proof, to the cause of action set forth in this paper. The plaintiff objected to the introduction of parol evidence to prove that the paper was thus used before the justice as a bill of particulars and the specification of the plaintiff’s demand.

*154There is no doubt, where a bill of particulars has been duly filed before the justice, and is thereby made the foundation of the judgment, and the same is duly certified as such, and sent up with the papers, under the statute provisions requiring the justice, in cases of appeal from his judgment, to send up certified copies of the record and of all papers filed with him in the case, that the case is to be tried, on the appeal, upon the bill of particulars thus filed, unless the bill, for good and sufficient cause shown to the court of common pleas, be allowed by that court to be amended.

The inquiry then arises as to the mode of authenticating a document of this character; whether it must appear to be such by the copy of the record transmitted by the justice; or a memorandum or filing oh the paper itself; or by a copy thereof, certified by the justice ; or whether its character and use, before the justice, may be shown by witnesses called to establish that fact. This latter mode is objectionable and not warranted by law. By statute, it is made the duty of the justice to make a record of all the proceedings in the case, and send up a copy of the same and of all papers filed in the case ; and this duty, properly discharged, will always secure the right of the parties in this respect; and any paper in the case, filed with the justice, though not embraced in the record, will thus be substantiated as competent evidence, if certified with the proper memorandum or filing, indicating the purpose for which it was introduced and used before him.

The importance of strictly adhering to the ordinary rules, and requiring formality in the evidence of proceedings before justices of the peace, where those proceedings become important on trials of issues before other tribunals, was much considered, and strongly enforced, in the case of Sayles v. Briggs, 4 Met. 421. Strong objections exist to the introduction of parol testimony in such cases. Collateral issues are thus presented, and questions of fact are to be tried upon the testimony of witnesses, where a written document may and ought to be conclusive. Cases may exist, and such were *155cited by the defendant’s counsel, where, from the nature of the question, resort must he had to parol evidence as to the course of proceedings and the matter in issue before another tribunal; as where, after there has been a trial at law upon the general counts in a writ, a subsequent action is brought, and the party has occasion to show what was the subject of controversy in the former suit. Unless parol evidence were admissible in such case, the party might he excluded from showing a former recovery, or judgment in his favor, on the same cause of action. But no such necessity exists here. The hill of particulars may always be authenticated by the filing of the plaintiff or of the justice upon it, indicating its character. If this is not done, it is always competent for the defendant to insist upon it before proceeding to trial. This being done, if any question is afterwards raised m the court of common pleas, or in this court, as to the character of the paper, it must be settled by the indorsement on the paper itself, or by the certificate of the justice accompanying it, or by a certified copy thereof.

New trial granted