
    Lehr v. Hall et al.
    
    The minute book of the court can not be offered as evidence of a judgment.
    It seems that the original writ, pleadings and judgment, or a transcript thereof, are necessary to prove a judgment.
    ERROR from the circuit ,court of the county of Holmes.
    This was an action of debt against the plaintiff in error, as administrator of-Goodman, suggesting a devastavit. The defendant below, pleaded: 1. Nihil debit. And two special pleas, which were intended as pleas of retainer by his co-ad min-istrator Wright. But these pleas did not aver, that the debt retained was of equal or superior dignity to the plaintiff’s.
    The plaintiff offered to read from the minutes of the court, in order to prove a devastavit, the original judgment obtained against the administrator, and that the execution thereon was lost, but had been returned “ no property found.” This was objected to by defendant, but the court overruled the objection.
    The plaintiff proved the loss of the execution, and then offered to read the minutes made on the execution docket, which stated the issuance of the execution, and the return thereon, — which was also objected to.
    The plaintiff then offered to prove by the sheriff, that he had in his hands all the executions that ever issued against Lehr as administrator — that he did not recollect this one in particular — that his returns on the executions, were “ The defendant having no property of any kind to be found in my county, that the plaintiffs’ money can be made of or any part thereof.” This was also objected to, but received by the court.
    All these exceptions were taken and signed before the jury retired from the bar.
    The jury returned a verdict for the plaintiff in the following words: “We, the jury, find for the plaintiff, and that the defendant owes the plaintiff the sum of thirty-two hundred and sixty-one dollars twenty-nine cents, and assess the plaintiff’s damage to $778 72.”
    
      The court was required to give various instructions, which were refused, and exception was taken, but the evidence upon which the instructions were predicated, was not set out.
    G-. S. Yerger for plaintiff in error.
    1st. It is believed the court erred in permitting the entry of the previous judgment to be read. This court has decided, that as a link in the chain to establish a devastavit, a previous judgment is necessary, and also a return, of no assets, and that it is error unless a devastavit is proved. 1 Howard’s Reps. 271 — 2. Ib. 617.
    No previous judgment was here proved or offered to be proved. This was error; because, not merely the entry of judgment, but the whole record of the proceedings previous to judgment — the declaration and service of process must be read to prove a judgment. This is necessary to prove that the defendant was served with process, or appeared, &c. otherwise it is no judgment, for in such case, the judgment is merely void.
    Hence it is the uniform rule, that to authorize a judgment to be read in evidence, the whole of the record preceding it must be read. The court must see the whole to put a construction on it, hence the objection in the case was well taken, 1 Starkie’s Ev. 163, 227.
    2d. The objection to the entries on the execution docket were well taken. The docket is merely memoranda kept by the clerk for his own convenience — transcripts from them are inadmissible. They are not records. The execution after its return, and the endorsements on it, constitute the record. If the execution is lost, parol evidence may prove its existence; but the parol evidence must be competent. The clerk might have proved that return, from memory, or he might refresh his memory from the docket; but .the entries themselves are no evidence, except the clerk were dead, when as entries made in the usual course of business, they would have been admissible.
    The evidence of the sheriff does not supply this testimony, and was properly objected to. He says he does not recollect this execution, but he had ail the executions against Lehr as administrator, in his hands, and that he returned on them all, «the defendant having no property of any kind to be found in my county,” &c. This return only shows the defendant had no property. Non constat, that he had not assets. The return should have been that there were no goods, &c. of the intestate in the defendant’s hands, &c.
    3d. The verdict should have found the amount of assets wasted by the defendant. He is only liable for the assets in his hands. He need not have pleaded fully administered to the first suit. 2 Howard, 617. Upon the trial of this, he had under the general issue the right to show he had fully administered the assets before the rendition of the first judgment.
    In this state, as he had not plead fully administered to the first action, and as he is only to be made liable for the assets received, it follows, that in this action, under the general issue, the verdict must be the same as it is in England, under the plea of fully administered to the first action, in order to charge him. 9 Yerger’s Rep. 413. 5 Cranch Rep. 19. 2 Washington, 301.
    The action of debt for a devastavit, although in form upon contract, is in substance for a tort; hence in such action, the plea of not guilty is a good plea, as well as nihil debit. 2 Williams on Executions, 1225. Under- both pleas the evidence must be the same. The verdict ought to be, that the jury "find that the defendant does owe $-- to the plaintiff, being the amount of assets wasted by him,” &c.
    Jennings, contra.
    
    The counsel for the plaintiff in error assigned no less than fifteen grounds of reversal, but I conceive that there are but three questions raised by the record.
    1st. Was the finding of the jury an answer to the issue submitted to them, and sufficient to warrant the judgment of the court thereon ? If this verdict is defective at all, it is merely so in form, it is certainly good in substance. The principle is, that verdicts are not to be taken strictly like pleading, but that the court will collect the meaning of the jury, if they gave such a verdict that the court can understand them. 2. Burr, 231. 14 Johns. 84. 1 How. 130. Is not this verdict such an one as the court can understand ? Does it not respond in the very terms of the issue ? What is the issue or question for the jury to answer? 
      Is it not delect vel non? or is it devastavit vel non? It seems to me that their finding is in terms strictly formal and technical. It is urged that their finding does not state what amount of the intestate's goods the administrator wasted. It is certainly meant by their finding that he owes the plaintiffs the amount specified by them, that he had wasted the goods of the intestate, which had come to his hands to that amount.
    2nd. Was the charge of the court below correct, “ that the obtaining of a judgment, the return on the execution issued of said judgment of nulla bona, and the proof of assets at that time is sufficient evidence of assets?” In England, the recovery of a judgment is conclusive evidence of assets. Here it is not even prima facia evidence. In this case the only enquiry is as to the sufficiency of the proof of the devastavit, there being express evidence of assets. In England, on the trial of this issue, it would have been only necessary to produce the record of the judgment, the fieri facias, and the return to make out the plaintiff's case. 1 Saund. 219, C. note 8. Here our statute, Rev. Code, 60, sec. 105, makes it necessary in addition to prove assets. In the case in 2 How. 617, it was ably and deliberately argued that the judgment alone was evidence both of assets and devastavit. I do not conceive that in England or in this state the return of nulla bona is conclusive evidence of assets and a devastavit, so as to preclude defendant from proving the contrary. It is sufficient until rebutted. 1 Saund. 219, C. note 8.
    3rd. The last point to which I solicit the attention of this court, is the exclusion by the court below of the record of the court of probate of Holmes county, by which that court declared on the 5th April, 1838, the estate of Goodman insolvent. This depends upon the proper construction of the 103rd sec., of The Orphan’s Court Law, Rev. Code, 58-9, and the act amendatory of it, Rev. Code, 70. The proceeding to have an estate declared insolvent, must at least be commenced within the six months allowed to the administrator “to ascertain the condition of the-estate.” Could such proceeding (if commenced in time) bar an action, the gravamen of which is the breach of trust of the administrator, and which seeks to make him liable de bonispropriis, or be offered in evidence to rebut testimony tending to prove him guilty of a devastavit?
   Opinion of the court by

Justice TurneR.

The defendant below objected to the evidence going to the jury, and excepted to the opinion of the court which permitted it to be read. Several other points were raised on the trial below, which it is unnecessary to notice on the present occasion, as we are clearly of opinion that the judgment must be reversed, on the point raised by the 4th assignment of errors, viz. “ The court erred in permitting to be read in evidence to the jury, the minutes of the circuit court of Holmes county, of the entry of a verdict and judgment in the case of Hall, Walker and Walton v. John Lehr, administrator,” &c.

We take it to be a well established rule of law, that where a party relies on the judgment of a court of record, as evidence to support an action, the “record of the judgment” should be-exhibited. What constitutes such a record is well known to the profession, and what would be an authentication of such a record is equally well known. It will not be safe to take for a record of a recovery, parts and scraps thereof from the minute book. The original writ, declaration, pleadings, judgment, &c. are required in making up a full and complete record, and then a certificate under seal, that it is a “ full and complete record of judgment and proceedings had therein,” or the entire record itself, as the judgment stands recorded in the book of records of final judgments should be produced. This judgment may have been arrested, or a new trial granted, or there may not have been service of process, &c. As to the admission of the execution docket, and the evidence of the witnesses about the lost execution, these were admissible, and there is no error in that part of the proceedings. The judgment is reversed, a venire facias de novo awarded, and cause remanded.  