
    *John Robbins v. William Budd.
    
      Trespass on the Case.
    
    A person fined before one justice for profane swearing, and arrested and brought before another justice for the same offense, can only prove the former conviction by a transcript from the docket of the justice who assessed the fine.
    This cause came before Judges Burnet and Sherman, at the August Term, 1825, in the county of Delaware.
    The declaration contained three counts. The first stated, in substance, that William Robbins was a son and servant of the plaintiff in his employ; that the defendant, being a justice of the peace issued his warrant against the said William, caused him to bo unlawfully arrested, fined him in the sum of three dollars, and imprisoned him, whereby he lost the benefit of his labor. The second count charged the arrest to have been made with force and arms, The third count charged the defendant with having caused the said William to be illegally arrested on a charge of swearing several finable oaths — that the said William, had before that time been legally fined for swearing the same oaths — that the defendant knowing the premises caused him to be fined a second time, and to be imprisoned for the same offense, by which he lost, etc.
    Plea, general issue and notice.
    In support of the declaration the plaintiff gave in evidence a certified transcript from the docket of the defendant, from which it appeared that William Bobbins had been charged on oath before the defendant, as a justice of the peace, with having sworn two finable oaths, on which charge the said William was arrested, brought before the defendant, fined one dollar and cost of suit, and for non-payment of the fine was committed to prison.
    B. Cook testified that he was a justice of the peace, that on the evening of the third of July, William Bobbins, son of the plaintiff, swore two finable oaths in his presence, that he informed him at the time that he should take notice of it. That in the course of the evening he made an entry on his docket that said William was fined fifty cents for swearing the said oaths.
    On cross-examination he stated that no process had issued and that no cost had been taxed. That after he had fined the said William, the constable came and took him on a ^warrant from Justice Budd, and that he requested the constable to tell Esquire Budd what he had done.
    J. Cook testified, that he hoard William Bobbins swear, and heard B. Cook tell him he would take notice of it. He saw the constable arrest young Bobbins on the warrant from Budd; that he was called as a witness before Budd — that he proved the swearing of the oaths, and that he informed Budd, that B. Cook had fined Bobbins before, for the same oaths. On cross-examination, he stated that no transcript was produced from the docket of B. Cook, and that the defendant Budd had no knowledge of the fine imposed by Cook, but the verbal information given by the witness.
    On this evidence the plaintiff rested, and the defendant moved for a nonsuit.
   By the Court :

The declaration charges that the defendant was a justice of the peace — that as such he issued a warrant against William Bobbins, son of the plaintiff, for an alleged violation of the act for the prevention of certain immoral practices. That the said William had been previously fined for the same offense — that the defendant with a knowledge of that fact unlawfully fined him a second time, and caused him to be imprisoned, whereby the plaintiff lost the benefit of his labor. In support of the motion it is contended, that these facts have not been proved. The only averment tending to subject the defendant to his action is his knowledge that the party accused had been previously fined for the same offense. The declaration does not state the manner in which the defendant acquired that knowledge, but it appears from the testimony, that it was by a verbal message, sent by Justice Cook, which message the defendant "very properly refused to receive as evidence. It was the duty of the accused, if he wished to avail himself of that defense, to do it by a certified transcript from the docket of the justice who had imposed his fine. Parol evidence of the fact was inadmissible. If the suit had been brought in a court of record, and the defendant had plead a former conviction in bar, he could not have sustained that plea by parol testimony, but must have produced the record of the conviction. *Although the pleadings before the justice are ore terms, the rules of evidence are the same as in courts of record, and the defendant, acting as a judicial officer, was bound to require the best evidence in the power of the party, and to reject that which was inferior. The plaintiff not having shown that such evidence was produced, has failed to prove the only fact on which he could hope to sustain his action — we therefore advise him to submit to a nonsuit.

Judgment of nonsuit. 
      
      Note BY THE Editor. — Justices’ Records, see ii, 180; y. 545; ix. 131-xiv. 91. ’
     