Matthews v. Houghton , 11 Me. 377 ( 1834 )

Mellen C. J.

at a subsequent term, delivered the opinion of the Court.

Several questions have been discussed in argument, which we proceed at once to examine and decide.

1. We do not perceive any incorrectness in the ruling of the Judge as to the admission of Mr Tenney as a witness. He is not interested in the event of this suit. He obtained a judgment against the effects of Matthews in the hands of Houghton, who has voluntarily given his note to Tenney for the amount. It does not follow that he would have any defence against the note, if there was any irregularity in the manner in which the judgment was máde up by the Justice. Besides, this question is not distinctly reserved and presented in the close of the report as one of the alternatives upon which a new trial was to be granted, if it was ruled incorrectly.

2. There can be no possible doubt as to the character of the note. Clearly it is not a negotiable note.

3. Neither has the Court any reason for pronouncing the conduct of Townsend, illegal or irregular in making up the judgment. The memorandum on his docket is brief and imperfect, stating merely the day on which the action was entered — the names of the parties, and the continuance or adjournment of the Court to August 1, 1828. He completed the record prior to June, 1832, having resigned the office of deputy sheriff, which he then held, before completing the record, because our Constitution, art. 9, sec. 2, provides, among other things, that no person shall hold or exercise, at the same time, the office of Justice of the Peace and deputy sheriff. We are inclined to the opinion that the formality of a resignation was unnecessary. It does not appear at what time his commission, as a Justice of the Peace, expired, by resignation or lapse of time. The design of the constitution was to prevent the union and exercise of judicial and executive powers in the same person at the same time, as impolitic if not dangerous. But a magistrate does not act judicially in making up and completing his record. In doing this he performs himself, what this Court does by the agency of their clerk. It is a mere ministerial act. The Justice adjourned to August 1, 1828, on which day he made his decision. We have stated all these facts for the sake of giving this answer to them, though, as we are furnished with an attested copy of the record of said judgment, we have serious doubts whether any of the parol evidence which we have been considering is properly admissible. On the whole, we consider we have regular proof of the judgment before us.

4. In the fourth place our opinion is, that the judgment is a bar to the present action. It has never been appealed from ; and according to the cases cited by the counsel for the defendant, a judgment duly rendered against him as trustee, is as much a protection to him before it is satisfied as it is after payment. Wc are all of opinion that the nonsuit was properly ordered and it is confirmed.

Judgment for the defendant for his costs.