Scott v. M'Crary , 1 Stew. 315 ( 1828 )

JUDGE GAYLE

delivered the opinion of the Court.

In these proceedings there is but one question presented for the consideration of the Court, and that is, whether it is competent for the magistrate to prove the warrant, and the order of acquittal and discharge. 1 he decision of this question will embrace all the points raised by the,assignments of error. The proceedings in this case must either be considered as records, or placed upon the footing of written evidence of less dignity. If the former, then the evidence of the justice could have no effect, and if the latter, no reason can be perceived for its exclusion. 'A witness is competent to give evidence if he be not interested in thé event of the suit, or is not under some other legal disability, such as,insanity, ignorance of the obligations of an oath, and the like. If the maker of anyhvritten instrument would, in any case, be competent to prove its execution, it cannot be perceived why a justice would not be permitted to prove his own warrants when such proof is necessary. This view of the subject will as well apply to the endorsement which states the acquittal and discharge of the defendant in error as to the warrant. The circumstance of the-discharge being-signed by another justice, cannot alter the case. Like one of several makers of an instrument, or of.several attesting witnesses, he is admissible to prove the execution, though the others be absent.

But it seems that the justice was also allowed to prove the meaning- and intention of the endorsement. This, it is contended, is opposed by all the rules of construing written testimony. It is not necessary here to examine the force of this objection. It is very apparent that no explanation was necessary. The circumstance of the prosecutor being called plaintiff, cannot and does net obscure or render doubtful the order of discharge. It would require not a small degree of incredulity, to suppose the endorsement on the other warrant was intended t0 ¡-,,, applied to any other case or prosecution than that contained in the warrant itself.

It is the opinion of the Court that the judgement of the Circuit Court was correct, and it is therefore affirmed.