Gibbs v. Fulton ( 1825 )

By the Court :

The plaintiff could not recover against the defendant without proof that he became his bail. This fact he was bound to prove by the best, not by secondary evidence. The best evidence was a transcript of the proceeding against Fulton, and the undertaking, as bail, founded upon it, whether that undertaking was made by a recognizance signed by Gibbs, or by a judicial acknowledgment made before the justice and entered by him.

Suit was brought against G-ibbs, upon this undertaking, and judgment rendered against him. To this judgment he obtained a certiorari, and in his return the justice embodied all his proceedings, and upon this return the judgment was affirmed. We do not perceive upon what principle a judicial return can be made where proceedings in one cause are required, embodying in it an official and judicial ^return in a different cause. As to the latter, if it were a judicial act, still, the original record remaining where' it was first made, it should be resorted to as better .and higher evidence than the transcript of it, certified into another court.

If special bail be entered in a suit in the court of common pleas, and the bail be fixed with the debt and judgment rendered against him, in a suit upon the recognizance, in the common pleas, and removed into the Supreme Court upon writ of error and affirmed, it would hardly be contended that a transcript of the record in the Supreme Court, certified by the clerk, would be proper evidence to establish the recognizance of bail. The plain course would be, to obtain from the court of common pleas transcripts of the original suit in the common pleas, and also of the suit against the bail, with the certificate of affirmance upon error from the Supreme Court. The cases are the same in principle. The evidence ought not to have been admitted, and there must be a new trial, the costs to abide the event of the suit.^†

† NoTE by the Editor. — Eor justices’ records, see note to case on page 16, vol. ii. When judicial records admissible as evidence, ii. 334, 348; iii. 271, 487; V. 136, 280, 283, 447, 545; vi. 251, 409; vii. 88, 212, part 1; viii. 405; ix. 108, 131; xiii. 209; xvii. 156, 365; xviii. 469.