Minns v. Barnes, 4 Blackf. 438

Sullivan, J. Barnes sued one Harrington before Boicourt, a justice of the peace of Gibson county, and recovered a judgment for the sum of 16 dollars and 68 cents. Boicourt vacáted his office, and his docket was duly transferred to Mills, the plaintiff in error, as his successor. At the suggestion of Barnes, a scire facias was issued by Mills against Harrington, requiring him to appear and show cause why execution should not issue against him; and, on the hearing, judgment was rendered against Barnes for the costs. From that judgment Barnes appealed.

Mills, the plaintiff in error, failed to cause a transcript of the judgment and proceedings before him, to be filed with the clerk of the Circuit Court within 20 days after the fifing of the appeal-bond by Barnes; and the appeal was for that cause, on the motion of Harrington, dismissed by the Circuit Court. For that alleged neglect.of duty, Barnes sued Mills before a justice of the peace, who decided in favour of Mills. On appeal to the Circuit Court, Barnes obtained judgment; and to reverse that judgment, the present writ of error is brought.

On the trial in the Circuit Court, the plaintiff below, for the purpose of proving the proceedings had before Mills on the scire facias in favour of Barnes against Harrington, and that the judgment was appealed by him to the Circuit Court in due time, offered in evidence a copy of the transcript of the justice of the peace in the case of Barnes against Harrington, on file in the Gibson Circuit Court, certified by the clerk of that Court. The defendant objected to the admission of this testimony, but the Court overruled his objection and admitted it.

We think the paper introduced was not the best evidence within the reach of Barnes. It was necessary that he should prove on the trial in the Court below, amongst other things, that he had a legal demand against Harrington, that a suit had been commenced upon it before Mills, that final judgment had been rendered, and that he had appealed to the Circuit Court. These facts could be best proved by the record in the possession of Mills, or by a transcript from that record certified by the keeper of it, or, after request and refusal to furnish the testimony, by evidence aliunde.

As no effort was made to procure that testimony, it was not proper for the plaintiff to resort to secondary evidence. J. Pitcher, for the plaintiff. The testimony introduced was also objectionable in another point of view: It was the copy of a copy from the justice’s docket. A copy of a public document is admitted, in evidence aS orWnal> properly authenticated, but a copy of a copy proves nothing. It is said to be of no weight whatever. Gilb. Ev. 10.—1 Dall. 65.

The clerk of the Circuit Court of Gibson county, could only certify to the existence of the copy on file in his office, but he could give no transcript from the original, because he had not the custody of the record, and had no knowledge of its existence. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.