Hartley v. Chandler , 6 Ala. 857 ( 1844 )

COLLIER, C. J.

The counsel for the defendants has assimilated the entry upon the execution docket, to a mere memorandum made by a witness, to which he may refer for the purpose of refreshing his memory. But he insists that it cannot be made evidence by the statement of the deputy clerk, that the facts it affirms are all true, because it is his invariable practice to enter them truly.

By the act of 1812, the clerk of every court is required to enter in a docket or book kept for that purpose, a list of all executions issued by him, specifying therein the names of the parties, the amount of the judgment, interest and costs in such execution; the name of the person to whom it is delivered, to what county directed, the date when issued, and the return day thereof; and when the same is returned, shall, without delay, record it at large on the same page or folio, on which the execution is entered, and shall constantly carry the book to the court of which he is clerk. [Clay’s Dig. 144, § 8.]

This statute imposes upon the clerk an official duty, and the execution docket cannot with propriety be considered as a mere memorandum, kept for his own use. The Legislature never would have made a law for a purpose so useless, as far as it concerns the public. But we need not resort to construction on this point; for the clerk is directed to carry his book into court, and this indicates that it was intended for the inspection of those who were interested in being informed of the facts disclosed in it.

Whether the entries upon the execution docket are evidence per se, we need not inquire; but when aided by the testimony of the clerk, or his deputy that they were genuine, and that he had no doubt but they correctly stated the day when executions were returned, we know of no principle of law which would render them incompetent evidence. Sometimes the American courts have even relaxed the stringent rule of the English common-law, by admitting a private writing to go in evidence to the jury, in all cases where it was made by the witness at the time of the fact, for the purpose of preserving the memory of it; although at the time of testifying, he can recollect nothing further than that he had accurately reduced the whole transaction to writing. [See cases collected in note, 3 Greenl. Ev. 484.] So it has been.held, where an agent made a parol lease and entered a memorandum of the terms in a book, which was produced; but the agent stated that he had no memory of the transaction, but from the book, without which he should not, of his own knowledge, be able to speak to the fact, but on reading the entry he had no doubt that the fact really happened; this was held sufficient. And where a witness, called to prove the execution of a deed, sees his own signature to the attestation, and says that he is therefore sure that he saw the party execute it, this is regarded as sufficient proof of the execution of the deed, although the witness adds that he has no recollection of the fact. [Greenl. Ev. 485, and cases there cited.] Surely, an execution docket is not entitled to less influence as evidence than a mere private writing, not made in virtue of a legislative requisition. Whether it be a record or not, the assistant proof adduced at the trial, made it very satisfactory evidence of the fact for which it was offered. It cannot be expected that a clerk, from whose court, perhaps, five hundred to one thousand executions annually issue, should be able to state from his own recollection, even aided by his docket, the facts which th'e law requires there to be entered. And if the proof made in this case were adjudged insufficient, there must, in the nature of things, frequently be a failure of justice.

The judgment of the circuit court is reversed, and the causo remanded.