M'Gee & Richardson v. Sheffield , 3 Stew. & P. 351 ( 1833 )

Lipscomb, C. J.

This was an action of debt, brought to recover the amount of a judgment, rendered by a justice of the peace, in the state of Tennessee.

The first error relied on, is, that the court below erred in its opinions, as stated in the bill, of exceptions.

Secondly — that the court erred, in permitting pa-rol evidence, that Newton was a justice of the peace, in the State "of Tennessee.

Thirdly — the court erred in sustaining the demurrer to the third ple.a of the defendants below.

There were. other ’ assignments, but they were abandoned.

We will take up the third error assigned, first.— The plea,to which the demurrer ivas sustained, was, in substance, that, both the plaintiff and defendants were citizens of this State, when the cause of action originated; and, were, in fact, citizens of this State, when the suit was brought, and judgment rendered by the justice of the peace, in the State of Tennessee; and, that he did not admit the jurisdiction of the justice of the peace, who rendered the judgment.

The cause of action was ex contractu, and, of course, in its nature, transitory; if the defendants were found in the State of Tennessee, it could be no objection to their being sued there, that the contract was made, and the parties resided in another State. It may. have' been something of a border stratagem, to seek an opportunity of the defendants’ being over the line, for the purpose of sueing them there; but, if so, it was more tranquil and harmless than many other border customs, and afforded no substantial defence to the action. The demurrer was, therefore, properly enough sustained.

The first assignment of error, embraces the admissibility of the testimony of the proceeding, had in the justice’s court, in the Slate of Tennessee.— The testimony of Newton, the justice of the peace, properly taken, pursuant to the statute, was read in evidence. He proved, by sworn copies, all the proceedings, before him, in the case between the parties. The proceedings before tho justice of the peace., were not of the dignity of records; and, if it is not competent to prove them, by sworn copies, proof would bo wholly impossible. It being, therefore, the only mode, we are advised of, in which such proceedings can be proven, there was no error in admitting it.— If any other mode', more certain, has been provided by the laws of Tennessee, it should have been shewn.

But, we are not authorised to presume, that such courts are made courts of record, by the laws .of the State of Tennessee; if they have been so made, then the judgments should be proven, and authenticated, agreeably to the act of congress.

Another objection presented by the bill of exceptions, is, that parol evidence was admitted,'that Newton was a justice of the peace. It is not necessary to prove, that a justice of the peace, is legally invested with the authority he exercises. The inquiry, for all the purposes, not connected with a direct trial of his authority to hold the office, is, not into the regularity and validity of the tenure, by which he holds the office — it is not, whether he is such officer, de. jure; but, whether he was such, de facto. In the aspect in which, the objection is presented, by the record, we can perceive nothiug against the admissibility of such testimony.

We do not believe, that the question of the legal effect of such a judgment as the one on which this suit has been brought, is présented by the record, for our consideration.

The objection as to the parties to the suit, y/as waived. Let the judgment be affirmed.