Kendall v. Powers , 45 Mass. 553 ( 1842 )

Dewey, J.

The defendant, at the trial, proposed to give parol evidence in aid and explanation of the record which was made by himself of the proceedings in the prosecution of the plaintiff; and he relied upon such evidence to justify the arrest and commitment of the plaintiff.

The great leading principles which have been so long known and recognized as marking the distinction between the different degrees of evidence, and holding the weaker and more uncertain to be incompetent, when a higher degree of evidence is shown to exist, cannot be too strictly enforced. No principle is more firmly established, than that which excludes oral testimony, when offered to control, contradict or vary written evi dence, especially that species of evidence, denominated records. See Sayles v. Briggs, (ante, 421.)

By the Rev. Sts. c. 85, § 35, every justice of the peace is required to “keep a record of all his judicial proceedings, both in civil and criminal cases.” This provision secures to all concerned — to the parties, as well as the magistrate—the benefit of this species of evidence, as to all the proceedings in a cause. And we think the duty, imposed on the justice, to Keep a record, applies to every thing which is necessary to exhibit fully the final disposition of the cause on his part. Having this duty enjoined upon him, and consequently having the opportunity afforded to him of furnishing, by his own record, the strongest case in his favor, which the truth will warrant ; we think public policy, as well as the rules of law, forbid that a justice- of the peace should be allowed to introduce parol evi dence to add to, or in any manner contradict, the record as made up by himself. The evidence offered at the trial was therefore properly rejected, it being proposed thereby to control the record.

No question was reserved as to the competency of the evidence for the purpose of mitigating damages, as was allowed by the presiding judge. And as the plaintiff is satisfied with the verdict, that point has not been considered by us.

Judgment on the verdict.