
    Sarah Jane Etters vs. Samuel Etters, et al.
    
      Evidence — Magistra tés Judgm.ent.
    
    Since the Act of 1839, a magistrate’s judgment cam be proved only by his book, which the Act requires him to keep — the execution and oath of tbe magistrate are insufficent.
    BEFORE O’NEALL, J., AT YORK, EXTRA TERM, APRIL, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows
    
      “ Trespass for seizing and selling a mule.
    
      “ In tbis case, tbe plaintiff proved tbe execution of a. bill of sale to ber of a mule described therein, by tbe former owner, James Etters, dated 9th January, 1857. It appeared tbat Samuel Etters and William C. Black, wbo alleged tbat they were creditors of James Etters, caused their co-defendant, Hamilton Wilson, to seize and sell tbe mule. Tbe defendants attempted to show tbat they were execution creditors of James Etters, but failed to do so. Tbe magistrate, Esquire Hardin, proved bis executions, but bad not bis judgments and tbe summons. • Tbis testimony was objected to, and of course excluded. It appeared tbat tbe mule was probably tbe only valuable article of property James Etters possessed. Esquire Hardin, John Hardin, and Theodore Eulton thought the plaintiff could not pay for the mule. But Esquire Hardin, and Phillip Etters proved that she had about two hundred dollars loaned out at or about this time. She bad the possession of the mule after she bought. The case was properly submitted to the jury who found for the plaintiff ninety dollars— the price for which the mule sold.”
    Tbe defendants appealed, and now moved tbis Court to set aside tbe verdict on tbe grounds:
    
      1. Because tbe executions under wbicb tbe mule was levied ón and sold, were produced in Court; proved by tbe magistrate wbo issued them, and it was stated by bim, that be bad issued summons, and rendered judgments upon tbe note and account due defendant Black, but that be bad left a portion of tbe record at borne.
    2. That tbe inadvertence of tbe magistrate in not bringing tbe entire record should not prejudice tbe defendants’ rights, as both they and their attorneys were under tbe impression tbe records were in Court, and were so informed before going into trial.
    3. Because tbe sale of tbe mule by James Etters to the • plaintiff was clearly proved to be fraudulent, and substantial justice requires that a new trial should be granted in order that tbe full record may be produced.
    
      Wilson, for appellant.
    A magistrate’s execution is sufficient evidence that a judgment has been rendered, as there is no law which requires magistrates to make a record of their judgments. Maybin vs. Virgin, 1 Hill, 420. Tbe executions were produced and proved by tbe magistrate, but bis Honor held that they were not sufficient evidence of tbe judgments. Griffin vs. Heaton, 2 Bail. 59; Act 1839, 11 Stat. 14.
    
      Williams, contra, cited 1 Green. Ev. 282.
   The opinion' of tbe Court was delivered by

O’Neall, J.

Hnder tbe 1st ground, it has been contended that tbe executions were sufficient evidence of tbe judgments. Before 1839, and under tbe authority of Maybin vs. Virgin, 1 Hill, 420, such would have been tbe rule. Tbe reason of that decision was, there was then (1833) no law requiring a magistrate to make “ a record of bis judgments.”

The Legislature very wisely in 1839 provided in the 5th section of the Act of that year, (11 Stat. 14,) that “each magistrate should keep two books, one for civil, the other for criminal cases, wherein he shall insert all his proceedings in each case by its title, showing the commencement progress and termination thereof, as well as all fees charged or received by him and shall produce the same when required for the inspection of the solicitor of the circuit; and at the expiration of his term of office, shall deposit the same in the clerk’s office for the district for which he was appointed.”

In the 15th section, p. 18, is the provision: “ In case the plaintiff shall discontinue or be non-suited, or the complaint be disproved, the magistrate shall award proper costs against such plaintiff; and if the demand or any part thereof be sustained, he shall give judgment therefor, together with the costs and having entered the same in his booh may issue execution for such amount so adjudged,” &c. This provision was, I have no doubt, in analogy to the proceedings on sum. pro. in which the decree entered on the journals of the Court is the judgment.

The magistrate’s book and judgment therein is a quasi record and must be adduced and proved to authorize the execution. The objection was, therefore, well taken on the circuit. Indeed it seemed to be hardly questioned by the defendants.

To enable them to show that the sale of the mule was fraudulent, it was necessary that it should be shown that Black and Etters were judgment creditors. Being unable to produce their judgments their defence was utterly in vain. There could be no fraud unless against creditors having a right as against James Etters to sell.

The ground of surprise cannot avail the defendants. It was their business to know that they had their proof so that it could be properly given in evidence. Failing to have it, was tbeir misfortune, but the plaintiff is not answerable for that.

Tbe motion is dismissed.

GrLOVEE and Mimro, JJ., concurred.

Wardlaw and WhitNeb, JJ., dissented.

Withers, J., absent.

Motion dismissed.  