Winsor v. Clark , 39 Me. 428 ( 1855 )

Rich, J,

— By inserting in a poor debtor’s certificate of discharge, matter not required by law to be inserted therein, such matter does not thereby become a part of the record and cannot be proved by a copy thereof. Though by inserting in such certificate facts or matters not required by law, the certificate will not thereby be invalidated, yet such irrelevant facts and matters will be treated as surplusage, and if it should become necessary to prove them upon trial they must be established in the same manner that they would have been, had they not appeared in the certificate.

The fact whether the parties to a poor debtor’s disclosure, did or did not expressly waive all objections on account of the interest of one of the magistrates who heard the disclosure, is not proved by being included in the certificate of discharge to the debtor, such fact constituting no part of the certificate required by law.

Foreign, irrelevant and impertinent matter constitutes no part of a record by being improperly incorporated therein. The ruling upon this point was correct.

The disclosure of the debtor was taken by written interrogatories and answers. On the trial, in this case, the contents of that disclosure were proved by parol. But before the witness was permitted to testify as to the contents of the disclosure, the plaintiff had proved it to be in the possession of one of the defendants, and seasonable notice to his attorney to produce it on trial, which he refused to do.

The defendant objected to the introduction of this parol testimony, and we think it should have been excluded.

Section 26, c. 148, provides, wbcn a disclosure is taken upon written interrogatories and answers, that tlie creditor may have a copy of the interrogatories and answers, certified by the justices, on paying therefor the same fees as for a deposition of the same length.

The law requiring the disclosure to be in writing if desired by the parties, and giving the creditor a right to a certified copy of that disclosure, such copy, in the absence of the original, is the legitimate evidence to prove the contents of the disclosure, and parol proof of the contents is not admissible until it is shown that neither the original, nor a copy duly certified is attainable. In this case there does not appear to have been any effort to procure such copy.

The plaintiff was also permitted to prove the “ intentions,” of Mr. Hubbard, his attorney, as to bringing a suit upon the bond, against the objections of the defendants. This testimony should have been excluded. Though standing alone it may not appear to have been material, yet when taken in connection with the question whether there was, or was not, an express waiver of all objections to one of the magistrates, on the ground of interest, a question which was of vital importance, it was calculated to have an influence on the minds of the jury. For these reasons a new trial must be had. There are other questions raised in the exceptions which it does not become material to examine.

Exceptions sustained.

New trial granted.