
    Bell against Murphy.
    Upon a plea of nul tiel record to a scire facias upon a recognizance of bail, on appeal from the judgment of a Justice of the Peace, the issue must be tried by-inspection of the transcript and recognizance filed, and not of the docket of the Justice.
    ERROR to the Common Pleas of Somerset county.
    John Bell against Samuel Murphy, bail of Henry Defebaugh. This was a scire facias upon a recognizance. John Bell obtained a judgment before a Justice against Henry Defebaugh, from which he appealed. The cause was tried in court, and a verdict and judgment rendered for the plaintiff. To the scire facias upon the recognizance the defendant pleaded nul tiel record. The plaintiff gave in evidence the transcript of the Justice filed with the appeal, exhibiting a recognizance of the defendant, Samuel Murphy, in due form. The defendant then produced the docket of the Justice, and gave the proceedings in the original suit and appeal in evidence, by which it appeared that he had not been bound in a recognizance as bail of Henry Defebaugh. Whereupon the Court rendered a judgment for the defendant.
    
      Hampton, for plaintiff in error.
    
      Coxe, contra.
   Per Curiam.

The issue was on the existence of a record in the Common Pleas to support the scire facias ; and it is not easy to see what the Justice’s docket, which is no record at all, had to do with it. What was the record of the recognizance in the Common Pleas? The certified transcript from the Justice, which had become matter of record by the filing of it, and of such absolute verity that nothing could be averred against it. Yet it was allowed to be disproved and put down by the Justice’s docket, resting on parol proof, which was declared to be the original record. The Justice’s docket a record of the Common Pleas ! It is the transcript which becomes the original record by the return, for the truth of which the Justice is answerable. The transcript, in this instance, contains not only the essentials, but the form of a perfect recognizance; and what is the difference between it and the docket? No more than that the former is drawn up at length, and that the latter contains the memorandum taken at the time of the transaction, to serve for making out the recognizance subsequently. The Justice, had he chosen to rely on his memory, might have dispensed with even the memorandum; for the contract is made by the assent of the recognitors to the words propounded orally, of which the writing is but evidence. The officer then makes up the written evidence of it at his leisure, and returns it to the proper court, where it acquires the properties of a record. There was such a record in this instance, and the production of it sustained the issue on the part of the plaintiff.

Judgment reversed, and judgment on the plea of nul tiel record rendered for the plaintiff, with a procedendo awarded as to the other pleas.  