
    Matthews vs. Houghton.
    
      Tenney sued Matthews in a process of foreign attachment, and summoned Houghton as his trustee, against both of whom he recovered judgment, the latter upon disclosure. No execution issued, the trustee promising to pay upon that condition. About three years afterward, the note, upon which Houghton was adjudged the trustee of Matthews, being a note not negotiable, was sued in the name of Matthews, for the benefit of another, to whom it had been bona fide assigned. After the commencement of this suit, Houghton gave his note to Tenney for the amount of his, Tenney's judgment. Held, that Tmney was a competent witness for Houghton, in the suit against the latter.
    
      Held further, that the trustee judgment was a bar to the action on the note — and that it might be regarded as such, as well before, as alter, a satisfaction,
    in making up and completing his records, a Justice of the Peace acts ministerially and not judicially — consequently he may do it when not in commission.
    A promissory note, payable in cash or specific articles, is not negotiable.
    
      Assumpsit upon the following promissory note :
    
      “Madison, July 31, 1826.
    For value received, I promise to pay Jacob Matthews or order, forty-live dollars in grain, at the market price, next January, or forty dollars in two years from next January, and interest.
    
      Nathan Houghton.”
    On which wore the following indorsements, viz: ‘'-July 31, 1826, received nine dollars and fifty cents upon the within note.” “March 1,1827, received on the within twelve bushels of wheat, at five shillings per bushel.”
    It appeared that, on the 29th of March, 1828, said note was assigned by Matthews to W. Preston, for a valuable consideration, for whose benefit this action is brought. The defendant pleaded the general issue and filed a brief statement, setting forth the facts proved in defence.
    The defendant offered in evidence a copy of a judgment signed by Amos Townsend, Esq. rendered in an action in which John S. Tenney was plaintiff, and said Matthews, defendant, and in which Houghton was summoned as trustee. It appeared further by the record, that Tenney recovered judgment against the principal — that, Houghton disclosed and was adjudged trustee; hut that no execution had been taken out either against the principal or the trustee.
    
      Mr. Tenney was offered as a witness by the defendant, (whose admissibility was to be determined by the full Court) and testified, that Houghton at the time of the entry of his, Tenney’s action, and after he had disclosed and was adjudged trustee, agreed that, ass oon as he could ascertain the amount due on said note, he would pay it, if he, Tenney, would not take out execution, to which Tenney agreed. That, after the commencement of this action, Houghton gave his note to Tenney for the amount of his judgment and interest.
    If the smaller sum named in said note is the amount due thereon, deducting the indorsements, the judgment recovered by Ten-ney was more than sufficient to cover it.
    it was admitted that Townsend would testify, that a short time prior to June, 1832, he made up his record in said action, Ten-ney v. Mattheivs fy trustee. That prior to that, he was a deputy sheriff in this county, but was discharged, made up his record as Justice of the Peace, signed the copy of record produced in evidence, and was then reappointed deputy sheriff.
    It further appeared by said Townsend’s certificate, that the following was a true copy of the memorandum on his docket; “ March 31, 1828. John 8. Tenney v. Jacob Matthews §• Nathan Houghton, trustee — con’d to Aug, 1, 1828.” — Which certificate was objected to.
    
      Weston J. ordered a nonsuit, which was to stand, if said trustee judgment is a bar to this action, or if upon the whole facts of the case, the plaintiff could not sustain this action — but if the trustee judgment was not a bar to this action, or if the larger sum is the true sum due on said note, or if said Townsend had no authority to make up said judgment and certify said copy, or if said note is negotiable, the nonsuit was to be taken off and the defendant defaulted; or if upon the whole facts of the case, the nonsuit should be taken off, the defendant was to be defaulted.
    
      Wells, for the plaintiff.
    The defendant, since the commencement of this suit, gave his note to Tenney in his own wrong. He was not obliged to pay the amount of Tenney’s judgment, no execution having been .sued out within a year. Statute of 1821, ch. 61. '§* 8, 9. Nor coiild a scire facias issue against the defendant, except within a year from the time of the rendition of judgment, consequently, as trustee, he was entirely discharged. Patterson v. Patten, 15 Mass. 473 ; Flower v. Parker &f al. 3 Mason, 247.
    2. But there was no judgment. The certificate offered in evidence shows all that there was on the record of the Justice at the time of the commencement of this action. This was insufficient. And if no judgment existed at the time of the commencement of this action, it could not afterward be made up so as to defeat the action. Clapp v. Clapp, 4 Mass. 520.
    
      Toivnsend was not authorized to make up the judgment and Certify the copies, at the time he did, because he was not then a Justice of the Peace. This Court have decided, in 3 Greenl. 484, Appendix, that the offices of deputy sheriff and Justice of the Peace are incompatible. It is therefore contended, that the acceptance of the office of deputy sheriff by Townsend, amounted to a resignation of the office of Justice of the Peace. 3 Greenl. 372.
    No amendment in the record could be made, which would affect vested rights, as in this case. Freeman v. Paul, 3 Greenl. 260 ; Emerson v. Upton, 9 Pick. 167.
    3. Mr. Tenney ought not to have been admitted as a witness. He was interested — his testimony went directly to support the trustee judgment, or to protect the trustee, which is the same thing. By supporting that judgment ho makes two persons liable instead of one. He is also interested in regard to the costs.
    4. This note was payable in wheat or money. The plaintiff is entitled to the largest sum, neither of them being paid, it belonged to the payee to elect which he would have, and he elects the larger. Co. Liti. 145, tí.
    
      Boutelle and Tenney, for the defendant,
    cited the following authorities: Maine stat. ch. 61, sec. 8,9; Taylor v. Day, 7 Greenl. 129; Perkins v. Parker, 1 Mass. 117; Stevens v. Gaylord, 11 Mass. 265; Bissell v. Briggs, 9 Mass. 468; Wood v. Partridge, 11 Mass. 491 ; Foster v. Sinclair, 4 Mass. 450 ; Hull v. Blake, 13 Mass. 153 ; Foster v. Jones, 15 Mass. 185; Kelsey v. Learned, 6 Greenl. 116; Dane’s Ahr. 464; 3 Black, Com. 421; 2 Kent’s Com. 364; 1 Com. on Con. 10, 11; Perley v. Spring, 12 Mass. 297; 1 Esp. N. P. 23, 24; 3 Black. Com. 24; 1 Stark. Eo. 150; Haskell v. Haven, 4 Pick. 404 ; Ladd v. Blunt, 4 Mass. 402 ; 6 Dane’s Abr. 493. Com. Dig. Attachment, I; 1 Salkeld, 280; 3 East, 367 ; Wise v. Hilton, 4 Greenl. 435; Howard v. Bogers, 5 Greenl. 441.
   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.  