Modisett v. Governor ex rel. Williams , 2 Blackf. 135 ( 1828 )

Holman, J.

Scire facias against Graham, a justice of the peace, and King and Modisett his sureties; charging that Graham, as a justice of the peace, had collected the amount of se? veral judgments entered in favour of Mark Williams, on the docket .of Joel Downey, a late justice of the peace, deposited with said Graham; and had failed to pay the money over to the said Williams. Modisett pleaded severally, that Graham had not received the said sums of money, and neglected and failed to pay the same, as charged in the declaration. On which pica, the plaintiff joined issue. Verdict and judgment for the plaintiff.

On the trial, as appears by a hill of exceptions, the defen-» dant offered in evidence the declarations of Williams, that Graham had never received any money as charged in the declarar iion; and also offered to prove that the judgments .of Williams against King, the amount of which the plaintiff claimed in this fiction, had been entered satisfied, not by a payment in mor ney, but by King's promissory note. But the Circuit Court re-» jected this evidence; being of opinion that, unless it was made to appear that a combination had been entered into by Wilr Hams, Graham, and King, to defraud the defendant, this evidence could not go to the jury. This decision was correct. When a judgment of a justice of the peace is regularly entered satisfied, the plaintiff, in order to obtain his money, must resort to the justice. He cannot take out execution on the judgment after satisfaction is entered on the docket, notwithstanding he might know that the satisfaction had been entered without a payment of the money. The official entry on the docket is conclusive against the justice and his sureties, and the plaintiff has a right of action against them for his money, without any reference to the manner in which the judgment has been satisfied. If Williams had assented to such a discharge of his judgment, or had in any way combined with Graham or King, for the purpose of rendering Modisett liable for the amount of the judgments, such facts might have been shown in the der fence. But the evidence here offered goes only to the knowledge of Williams that no money was paid, and does not pretend to show that he assented to, or was in any way concerned in, the transaction. The evidence was therefore properly re~ jected.

Another bill of exceptions states, that the plaintiff offered in evidence, to support the issue, on his part, a paper reputed to be the docket of justice Downey, appearing to be signed by said Downey as such justice, and containing certain reputed re? ceipts of justice Graham; after having only proved that the said docket, in the possession of said Graham, appeared to be signed by said Graham, as such justice; without haying proved any licence to intermeddle with the judgments upon said doer ket, according to the act of assembly in such case made and provided, or any other authority; and without having proved that Graham wrote said receipts, or that the same were in his hand-writing. To the admission of which paper in evidence, the defendant objected; but the Circuit Court overruled the objection, and permitted it to go as evidence to the jury. These reputed receipts of Graham were not admissible as evidence without proof of their execution. And we consider the expressions in this bill of exceptions, though somewhat obscure, as showing that there was no proof of their execution. The language of the bill is that they were admitted in evidence, without any proof that they were written by Graham, or were in his hand-writing. Their being on a paper, reputed to be the docket of another justice of the peace, which was found in Graham's possession, cannot alter their character, unless it wras shown that Graham had authority to intermeddle with the judgments on that docket; and as it is said that no such authority was shown, the receipts must stand as if they were on any other paper; and their execution should have been proved before they were admitted as evidence. The Circuit Court, therefore, acted incorrectly in admitting this reputed docket, containing these reputed receipts, to go in evidence to the jury.

Tabbs, for the appellant. Dewey, for the appellee.

Per Curiam.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c,