Eggleston v. Collis ( 1860 )

BaldwiN, J

The first error assigned is, “ that the District Court erred in admission of improper, incompetent and illegal evidence.''5 This assignment is quite comprehensivo in its character, and leaves the court to ascertain what evidence is referred to. The bill of exceptions show that the plaintiff offered in evidence a written contract which was the basis of his cause of action. The defendant objected to its introduction in evidence, for the reason that the paper had not been marked, “filed,” by the justice before whom the cause had been tried. The plaintiff then offered to show by such justice, that the contract produced was left with him by the appellant, that it was read in evidence upon the hearing of the cause before him, all of which evidence was admitted by the court notwithstanding the objection of defendant.

Section 2286 of the Code provides, that “ the original or a copy of all written instruments upon which a cause of action or set-off is founded, must be filed with the claim founded thereon.” Where a justice of the peace neglects to do his duty, and mark a paper, “filed,” which is left with him by a party for the purpose of complying with this section, the person leaving such paper should not be deprived of its use in the District Court on account of such negligence. No such penalty is intended by said section. The object of this section is to advise the opposite party of the nature of the claim against him.

The notice to defendant issued by the justice in this case advised him of the nature of the contract upon which plaintiff’s claim was founded, and the justice testified, that the same contract, then offered to be read in the District Court, was offered in' evidence upon the trial before him. Defendant in his answer did not deny the execution of the contract, but claimed that it had been fulfilled upon his part. We cannot see wherein the defendant was surprised or injured by this ruling of the court.

It is further claimed that the court also erred in refusing to instruct the jury that the evidence offered by plaintiff was not sufficient to prove a demand. All the evidence introduced is not before this court, but if it was we think the court properly refused to instruct the jury as to the sufficiency. of such testimony.

Judgment affirmed.