Charles Story vs. Jude Kimball, 6 Vt. 541

The opinion of the court was delivered by Williams, Ch. J. — This is an action of debt on judgment declared on, with a pro ui paiet per recordum. The defendant has craved oyer of the record and demurred. The declaration is defective; but the defects are such as can only be reached by a special demurrer. — Adams vs. Campbell, 4 Vt. R. 447. The defendant was not entitled to oyer, as there was no proferí. Where a profert is unnecessarily made, the defen-^ant *s not on ^at account entitled to oyer, but must plead without; but if it is asked for, and given, he may make use of it.

In this case oyer is asked for, and th'e record is set forth, and is to be considered as part of the declaration. The defendant has not plead nul tiel record, so that we have to examine the record itself, and see when and how it was made; but having accepted the record given on his prayer of oyer, it must now be considered the same as if such a record had been made by justice Blanchard, as set forth in the plea.

This shows a writ, the service made thereon, (a service to be sure defective, but the defects cannot here be noticed,) that the writ was made returnable, and the court to be holden on the 9th February — a minute under date of the 9th February of a continuance to the 16th inst., which means February — an entry as follows:— “Peacham 16th, 1828, judgment rendered by the court for plaintiff at $5,25 debt,” signed by the justice — cost is taxed in the margin at $6,40; but the entry against it is, “ cost allowed at $5,25 — execution issued hereon 9th August, 1828.” This was also signed by the justice.

As this inquiry is not on a plea of nul tiel record, as has been observed, it must be considered here as though all these words, letters and figures which are set forth ih the plea, were made-by the justice, as, and for a record of his proceedings and judgment thereon.

I think if the justice had wrote down in a book, kept by him for that purpose, all these proceedings in the same way and manner that they are here exhibited, it would have been a good, though an informal record of his proceedings and judgment; and the demand in controversy, declared on in that writ, would be considered as adjudicated upon, and settled by that judgment.

Unless the record is sufficient to enable the plaintiff to maintain this action of debt on judgment, it would not protect the defendant as a bar in an action brought against him for the same cause of action there mentioned, even although an execution had issued thereon, and had been satisfied. In judging of this record, it is to be remarked, that' no form is given for making up records of proceedings before a justice of the peace, and that different forms are used by different justices. From necessity we must not too strictly or severely examine their forms of proceedings in making up their records.

Many of their judgments, and too many of the judgments of the supreme and county courts in a former day, are left without any other evidence except the files and docket minutes. A .justice court is not a continuing, permanent court. When the justice dies, there is no- one to make out, Complete, or sign .his records. ’ In the higher courts, another clerk may-finish what is left un- ' finished by his predecessor,' under the inspection or direction of ■ the court.

To be very strict on this subject,-, would do a great injury* and would not produce any corresponding benefit.Judgments have been rendered, and 'the executions collected,where there is no other evidence of the judgment than a record similar to this* and perhaps not ¿s formal. If thfey are not to be treated .as evidence of the' judgment, many a1 demand and Controversy which have passed into judgment, both before jus-' tices and in the higher courts, may be again sued for and pros-' ec'uted. We had a case before us very similar to this, two' years ago,-in this county, (the case, of Buckminster vs.

Fuller,)' where a judgment was allowed to be proved by minutes', riot as full as these'. From the necessity of the case, we must receive these informal proceedings as evidence of judgments rendered • by magistrates who have deceased without making more formal records, when we can learn, from the minutes which they have made that a judgment has been rendered,-and the amount- and sUm for which it was rendered. The objections which were taken in this case* to the service of the writ, are not con-' sidered as entitled to much consideration: the defects, such as they are, were cured by the judgment.

In any event, they.' Could not be noticed in this way -; the service may have beern defective, so that the writ would have' abated.- ■ If the justice' had no jurisdiction for want of notice or regular service, this shpuld have been put in issue by a distinct plea. The service" here was sufficient to • give the court jurisdiction; and as the' defendant, Mr. Kimball, then lived in the state, it was undoubtedly good, although stated imperfectly in the return. The judgment of the county court must be reversed, and-judgment rendered for the plaintiff.