Cummins v. Hayden

There was no doubt that if it appeared by the record required in such a case, that such an execution as was referred to had been issued on the judgment by the Justice of the Peace, it would be competent to prove by paroi evidence that it came to the hands of the constable, that he had collected the money upon it and had failed to return it, or that it had been lost or destroyed and could not be produced. But that was not the question merely which was presented in the case. For the question before the court was whether such evidence was admissible to prove the fact that an execution was issued on the judgment by the Justice of the Peace in the alleged case, the record or docket of that officer containing no note, or entry of it whatever, as well as its contents and the receipt of the money upon it by the constable, after proving its loss and that it could not be produced. The existence and loss of a record or paper being first established by proper proof, paroi evidence of its contents is admissible from necessity, and had the whole record in the case been lost or destroyed, it might have presented a very different question for the consideration and decision of the court. But they had before them what purported on its face to be the entire record and docket entries in *402the case so far as the Justice of the Peace had proceeded in it. By the law it was made his duty to enter on the record of it, the issuing of the execution, the date and return of it, and, if any was issued it ought to show it; but it shows the reverse, and to prove it by paroi proof, would be by paroi proof to contradict it. The action in the case before them was not against the Justice for an omission of duty on his part by the party injured by it; but it was an action founded on an alleged issuing of the execution against the constable and his sureties. We think it would constitute a dangerous precedent to admit paroi evidence of such an allegation in such a case, and we must therefore hold it to be inadmissible.