
    Brintnall vs. Foster.
    Where, in support of a plea of a former action for the same cause, and judgment for the defendant, a docket of a justice of the peace is produced, from which it appears that judgment of nonsuit only was entered, parol evidence is inadmissible to shew that the Cause was heard and decided on the merits, and that the form of the judgment was in consequence of the supposition of the justice that no other judgment than that entered by him could properly be entered in such a case.
    Error from the Erie common pleas. Brintnall sued Foster on a promise to indemnify him as a constable in the sale of certain property on a justice’s execution, for the selling of which he alleged he had been sued, and subjected to the payment of damages. The defendant pleaded, 1. Non-assumpsit ; 2. A former suit by the plaintiff against him for the same cause of action, before a justice of the peace, in which the defendant obtained judgment that he did not undertake and promise in modo et forma, &c. and costs of the defence were awarded to him, referring to the record remaining before the justice ; and 3. Setting forth the same suit before the justice, that a trial was had, that after the proof and allegations the cause was submitted to the justice, and that the defendant recovered a like judgment as set forth in his second plea, again referring to the record remaining before the justice. The plaintiff replied to the second plea, nul tiel record; and to the third, that the cause was not submitted to the justice ; that the defendant did not obtain the judgment alleged in his plea and nul tiel record. On these pleadings the parties went to trial. The plaintiff proved his declaration. The justice referred to in the plea, produced his docket, shewing a suit before him for the same cause of action, and concluding in these words: “ On hearing plaintiff’s proof, ordered judgment of nonsuit; costs, $1,88.” The justice testified that the cause was tried before him; that several witnesses were sworn ; that when the plaintiff’s proofs were closed, the defendant moved for a nonsuit, which he refused to grant; that the case was argued, and he took time for consideration; that he was of opinion that the plaintiff had failed in shewing a right to recover, because he had not proved that he had paid the judgment, which had been rendered against him, and be’caüse he had not shewn notice to the defendant of the suit prosecuted against him; for these reasons he gave judgment of nonsuit against the plaintiff, which he supposed was the on]y judgment he could give under the circumstances of the case. This evidence was received by the court, though objected to by the plaintiff; and the jury, under the charge of the court that the judgment before the justice was a bar to the ..present action, found a verdict for the defendant. The plaintiff excepted to the decisions of the court, and sued out a writ of error.
    
      H. White, for plaintiff in error.
    
      J. L. Wendell, for defendant in error.
   By the Court.

The principal, if not the only question in this case is, whether the parties must not be confined to the docket or minutes of the justice, to determine the nature of the judgment rendered by him; if so, the decision of the court below was erroneous. It would be dangerous to permit an inquiry into the evidence and proceedings of a trial before a justice, to show that the kind of judgment rendered by him was not such as he ought to have rendered, and to give effect to it as it should have been, rather than as it is. Both pleas state certain facts, and refer to the record of the justice to substantiate them. The replications deny such record. When the minutes are produced, they show no such record. The justice, instead of rendering a judgment on the merits, had entered a judgment of nonsuit against the plaintiff The justice was examined upon the facts which took place before him, to show that he went into the merits of the controversy, and should have given judgment on them. The court erred in receiving this testimony.

Although this court has not gone so far as to hold a justice’s judgment a technical record, they have elevated it to the character of a specialty. It is declared to be as much a specialty, and as conclusive between the parties, as a judgment of this court. 14 Johns. 480. This character would seem to shield it from an attack by parol evidence. In McLean v. Hugarin, 13 Johns. R. 184, it was decided that a certificate of a trial made by a justice, cannot be contradicted by parol evidence. A certificate contains the judgment, and if, when it

is proved in that way, nothing can be shewn against it by parol, it would not seem to be very consistent to allow the original docket to be controverted. It is to be observed that the use of a certificate is to shew the same facts which the justice with his docket is usually called to establish. One object of the provision, relative to a certificate, was to make it a substitute in cases where the justice could not be personally examined. 5 Johns. R. 351. In Posson v. Brown, 11 Johns. R. 166, parol evidence of the proceedings before a justice was declared inadmissible ; the court required the written minutes. They said the justice might be examined to verify them, but it would be repugnant to the sound and salutary rules of evidence to dispense with the production of them. They do not say in express language that these minutes cannot be contradicted, but it is clear that they are considered as having a high character as evidence. In one case the court held that a verdict of “ no cause of action” was equivalent to a finding by the jury for the defendant on the merits, 2 Johns. R. 181; but it is not certain that they would have said the same thing if the justice had entered in his minutes “ no cause of action.” A jury must pass on the merits, if they do any thing; but a justice may give a judgment of nonsuit. 5 Johns. R. 346.

It is said that the cause having been submitted to the justice, he could not render a judgment of nonsuit. So is the law ; but how is the fact ascertained that it was submitted to him, except by the parol evidence. This is attacking the correctness of the judgment collaterally. If it was erroneous the error should have been corrected by an appeal, or by a review on certiorari. It may be that if the justice had entered a judgment on the merits against the plaintiff, he would have brought an appeal, and did not do it because he perceived that no judgment had been rendered against him that precluded him from again investigating the merits.

Judgment reversed; costs to abide the event.  