
    *Newcomb v. Drummond.
    November, 1832.
    Appeals — Destruction of Record Pending — Right to Bring Debt on the Judgment. — D. recovered judgment against N. from which N. complaining of error, regularly took an appeal; but before this appeal was or could be prosecuted, the office of the clerk of the court, and with It the record of the judgment, were destroyed by lire, and therefore the appeal was never prosecuted; then D. brought debt on the judgment whereof the record was so destroyed; Held, he was entitled to recover, notwithstanding the appeal taken from the judgment, and the circumstances which prevented the prosecution thereof.
    Debt by Drummond against Newcomb, in the county court of Gloucester, upon a judgment of the same court for 100 dollars, previously recovered by the former, against the latter, in an action of trespass, assault and battery. The declaration excused the production of the record of the action and judgment, by stating that since the judgment was rendered, the clerk’s office had been consumed by fire, and this record -among other papers wholly destroyed. Newcomb put in a special plea in bar, alleging that the proceedings and judgment in the action of assault and battery against him were erroneous, and shewing particularly wherein they were supposed to be so, and that he had filed a bill of exceptions to the proceedings, taken an appeal from the judgment, and given an appeal bond, but that before his appeal was or could be prosecuted, or any steps taken to prosecute it, the clerk’s office, and this record therein contained, had been wholly consumed by fire; concluding with a verification. And upon this plea an issue was made up.
    At the trial in the county court, New-comb filed a bill of exceptions to an opinion of the court, stating, that Drummond having proved, by parol testimony, the rendition of the judgment in the action of assault and battery against Newcomb, and Newcomb’s appeal from the same, and due execution of the appeal bond, and the subsequent destruction of the clerk’s office by fire, and of the whole record of the action of assault and battery, — Newcomb, thereupon, moved the court to instruct the jury, that this action of Drummond *could not be maintained; but the court refused to give such instruction, and instructed the jury, on the contrary, that though the effect of Drummond’s judgment was suspended by the appeal taken by Newcomb, yet the judgment was an evidence of Drummond’s demand; to which opinion Newcomb excepted.
    There was a verdict and judgment for Drummonff. The circuit court of Gloucester, upon a supersedeas awarded at the instance of Newcomb, affirmed the judgment of the county court. And then he applied to this court for a supersedeas to the judgment of the circuit court; which was awarded.
    Johnson for the plaintiff in error;
    no counsel for the defendant.
    
      
      Appeals. — The principal case is cited in Hudgins v. Marchant, 28 Graft. 183. See monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
   TUCKER, P.

There is no error in the judgment. In considering the case, it shall be taken for granted, that the plea sets forth, distinctly, the fact that an appeal had been taken and consummated by giving bond, but that by the burning of the record the party could not take steps to prosecute his appeal. The appeal of a party can have no greater effect upon the judgment appealed from, than a writ of error awarded by a superior tribunal: if -there be a difference, that difference would preponderate in favor of the considerate act of a court, rather than the arbitrary appeal of the party. Now, it is no bar to an action of debt upon a judgment, that a writ of error has been awarded. The writ of error is, indeed, so far a supersedeas to the judgment, that an execution' cannot regularly be issued upon it, and if issued will be quashed. But an action of debt may, nevertheless, be brought upon it; and unless for some cause, deemed adequate by the court, the proceedings be suspended, the plaintiff will be entitled to his judgment. 2 Wms. Saund. 101, h; 1 Tidd 574, 5, 6. On the judgment so obtained, an execution will not, generally, be permitted, until the writ of error is determined; but the rule is *not uniform, but depends upon circumstances. Thus, where the plaintiff obtained judgment in the second action, before the writ of error sued out to the first, he was permitted to take his execution. Bishop v. Best, 3 Barn. & Ald. 275; 5 Eng. C. L. R. 281. And in Fisher v. Emerton, 1 Stra. 526, where the plaintiff got the second judgment against the bail, on a scire facias, pending the writ of error, the execution levied on their bodies was not set aside; the court saying that as the party did not apply to stay the proceedings, the court would not set them aside. In the present case, then, Drum-mond was entitled to the second action on the judgment. Now was it a vexatious one; for the destruction of the record rendered it the most proper, as it certainly was the fairest, course. Therefore, the instruction of the court was not erroneous to the prejudice of Newcomb ; for if he could have produced the fullest evidence of an appeal or writ of error, it could not have barred the action. The plea was, in fact, an immaterial plea; and had the verdict been for Newcomb, Drummond would have had judgment non obstante veredicto. The verdict having been for Drummond, the judgment upon it cannot be questioned.

It must be observed, too, that the plea distinctly admits, that bj1 burning of the papers, the party could take no steps to prosecute his appeal. His appeal then was not prosecuted. Putting technicalities out of view, it may be asked, whether a plaintiff who has obtained a verdict of twelve jurors and the judgment of a court in his favor, shall be debarred of his judgment by an appeal which his adversary ^as never prosecuted, and which he certainly cannot now prosecute. The destruction of the record may have operated a prejudice to him perhaps: but if this unprosecuted appeal, which cannot now be prosecuted, is to have the effect of a reversal of the judgment out and out, the plaintiff will sustain greater injury. In a question whether the consequences of this accident should fall on the plaintiff who had the verdict of a jury and the judgment of a court in his favor, or on the defendant who complains that that court erred in its decisions, we should not hesitate.

*There was a mode, perhaps, in which the appeal might have been prosecuted. The facts might have been ascertained as to the bill of exceptions and the consummation of the appeal by the execution of Ihe appeal bond, under the provisions of the statute, 1 Rev. Code, ch. 130, and then, it is possible, the transcript of the evidence obtained might have been acted on by the court of appeals. It struck the court, at first, that Drummond could only have been permitted to prove his case by evidence taken under that statute; but, as there was no objection to the testimony introduced, as there was no proof that a board of commissioners had éver been appointed and had acted, and as independently of the statute, a record which has been burnt or destroyed, may be set up by parol evidence, according to the common law, there is no good ground of objection on that score. Stark. Law Ev. part 2, § 39, p. 159.

Judgment affirmed.  