Wade v. . Odeneal , 14 N.C. 423 ( 1832 )

The cause was tried before Martin, J., at ROCKINGHAM, on the last circuit, when, upon nil debet pleaded, the clerk of the county court produced a list of the insolvent taxables in the handwriting of the defendant, the sheriff of Rockingham, in which was the name of the plaintiff. The list was endorsed "allowed," and the clerk swore that no other order was ever made by the county court concerning the insolvents of that year, and that the defendant had settled the county taxes by that list. The defendant objected to the clerk's giving any parol evidence, but the objection was overruled, and a verdict being returned for the plaintiff, the defendant appealed. The Acts of 1774 (Rev., ch. 105) and 1786 (Rev., ch. 255, sec. 2), and all the subsequent statutes providing for a credit to sheriffs for insolvents, refer to an allowance to him of them in (424) the first instance by the county court. This was provided for by the two old statutes of 1760, ch. 2, and 1768, ch. 6. Down to this time the sheriff passes his list of insolvents at the treasury only upon the authority of the order of his county court at home, specifying each insolvent, and the amount of the whole. The mischief intended to be remedied by the Act of 1774, under which this action is brought, is that of the sheriff collecting, and putting in his private purse, moneys which he had not paid, and was not liable to pay, into the treasury. Unless, therefore, an order be passed by the court which would exonerate the sheriff from accountability for these taxes, the case has not arisen in which he incurs a penalty for collecting them, because they remain due to the public. The order or judgment of the court is the efficient protection both to him and the taxables.

The question is, How is this judgment to be proved? Courts of record speak only in their records. They preserve written memorials of their proceedings, which are exclusively the evidence of those proceedings. If they choose to keep minutes, which they understand and can act on to their own satisfaction, it is well. If from them they can afterwards undertake to draw out the record to perpetuate it to their successors, or to communicate its contents to another court, I know nothing to prevent them but the difficulty in their own minds of being sure they make it what it was intended originally to be. But, until the record be so framed, another court cannot know more than the words of the minutes in themselves import. The records may be identified by testimony, but their contents cannot be altered, nor their meaning explained by parol. The acts of the court cannot thus be established. Here the testimony of the witness was indispensable to make out a case. Had he sent a transcript under the seal of his office of what was deposited there, nothing could have been made of it. It was necessary to prove that the list itself was in the handwriting of the defendant, to show what it was, and to explain what "allowed" meant. The objection taken to the evidence was a good one, we think, and (425) therefore there must be a new trial.

PER CURIAM. reversed. Cited: S. v. McAlpine, 26 N.C. 147; Harrell v. Peebles, 79 N.C. 30;Kerr v. Brandon, 84 N.C. 132; S. v. Warren, 95 N.C. 676; Mobley v.Watts, 98 N.C. 286; Taylor v. Gooch, 110 N.C. 392; Hopper v. Justice,111 N.C. 421; Forbes v. Wiggins, 112 N.C. 125; Gauldin v. Madison,179 N.C. 464.