
    McINTYRE vs. WHITING.
    APPEAL FROM THE COURT OF THE FIFTH DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    When a suit is brought in one parish and transferred to another, where it is tried, and where judgment is rendered, the clerk of the court in which the cause originated, cannot, on appeal, certify to the record.
    A judgment record is admissible in evidence to prove a judgment against the defendant, rendered in another State, on which judgment the suit is instituted ; although the plaintiff knows the existence of another record, showing the defendant to have taken the benefit of the insolvent laws of that State and that the plaintiff was one of his assignees.
    
      The plaintiff had obtained two judgments against the defendant in the city of Philadelphia, in 1823; each for about the sum of thirteen hundred dollars. Actions were instituted on each of those judgments.
    The defendant pleaded the general denial, an assignment of all his property, and a discharge under the insolvent laws of Pennsylvania, from all debts due by him prior to 1824. He alleged that the plaintiff, as one of his then creditors, shared in the benefit of this assignment, and should have credited him with the proceeds of his property thus assigned.
    The two actions were consolidated.
    On the 9th of October, 1832, the defendant’s attorney made his affidavit for a continuance, because the copy of the record of the defendant's arrest, assignment and discharge, under the insolvent laws of Pennsylvania, was then in New-Orleans, where it had been sent to aid in the defence of a similar suit, there brought against the defendant; and, although due diligence had been used, it could not be procured in time for the trial. He expected to show by this record, that the defendant was entitled to large credits on the claims set up in the petition, and was compelled to resort to it by the evasive answers of the plaintiff to the interrogatories propounded to him by the defendant. The continuance was granted. The plaintiff admitted as true, the facts set forth in the affidavit; the order of continuance was rescinded, and the parties ordered to proceed to the trial.
    On the following day, the trial came on. The defendant objected to the reading in evidence by plaintiff of the two records, on which the consolidated action was based, until the record mentioned in the affidavit of the defendant’s attorney, as then being in New-Orleans, shouldjbe produced. This objection was overruled, and a bill of exceptions taken.
    On the 12th of the same month an order was made, transferring the cause to the parish of St. Martin, giving the same effect to the judgment to be there rendered, as it would have if rendered in St. Mary, where the suits had been brought. Judgment was rendered against the defendant for , , „ , , , , , two thousand five hundred and eighty-eight dollars, and was dated at St. Martinsville, October 30th, 1832. No testimony appears to have been taken down on the trial, no statement of facts agreed on, or a statement made by the judge a quo.
    
    The defendant appealed.
    On the 3d of June following, the clerk of St. Mary certified as follows: “that the foregoing pages contain a full and complete transcript of the record,” &c., “and that they con. tain a complete transcript of all the evidence adduced in the District Court on the trial,” &c.
    Splane, for the plaintiff and appellee,
    moved to dismiss the
    appeal,
    1. Because the clerk’s certificate to the record was insufficient, and not made in conformity to law. 3 La. Reports, 294.
    2. Clerks of courts have no authority to certify the record as containing all the testimony produced in the cause, unless they are ordered on the trial to take it down or note it in the proceedings. In this case, the evidence is all documentary.
    3. In relation to the demand, admitting that the defendant has been released, so as to protect him from arrest for all prior contracts, by the laws of Pennsylvania, that will not protect him here, where the contract is to be enforced. 11 Martin, 730.
    4. When it is clear that the evidence, the absence of which is alleged in the affidavit as cause of continuance, would be of no avail, if produced, the cause will not be remanded.
    5. The affidavit, the facts of which were admitted, does not state that the record alluded to as absent, would disprove any of the answers of the plaintiff to interrogatories that are material.
    6. All the answers are evidence, until disproved in the manner pointed out by law. C. of Pr. 354.
   Porter, J.,

delivered the opinion of the court.

when a suit ú brought in one parish andtransferred to another, where ¡t is tried and where judg“tenderkn¿eith¿ the cause orighiai appeal certify To

judgment re. biédi¿5 evidence me?t°Iga¿st“ti?é díeddfn another judgment tiie suit is instituted, although the plaintiff knows the existence of another record, showtoharotakrathe ¿viHaH i that tiic'piaintiff íi|ñe°”s!°fhlsas"

This case is presented for examination on the merits by the appellant, on a certificate given by the clerk of the District Court of the parish of St. Mary, eight months after judgment was rendered below, and seven months and a half after the appeal was taken. The certificate affirms, that the record contains all the evidence on which the cause was tried in the first instance. There is no statement of facts, nor does there appear any evidence taken down by the clerk.

Various objections have been taken to this certificate; we find it unnecessary to notice any other save that which relates to the want of authority in the clerk by whom the certificate was given. The cause originated in the parish of St. Mary, but was tried in that of St. Martin, for we find on record the following entry: “ordered that the suit be transferred to the District Court of St. Martin, to be tried there, and the judgment to have the same effect as if rendered here.” We are sensible as the counsel who argued this cause for the appellee can he, of the great danger of receiving certificates from clerks or judges, long after the . i 0 causéis decided; but, without saying what our opinion might «to Sr o be, had the certificate been given by the clerk of the court ° J which tried the cause, we are quite clear it cannot be receivfr°m one where it was not tried.

This is a bill of exceptions found in the record, to an °pinion of the judge, admitting records of judgments given a-gEtixist the defendant in Philadelphia, to be read in evidence, on the ground that the plaintiff had admitted that there was a record in existence which would show that the defendant had taken the benefit of the insolvent law of -p. _ . .Pennsylvania, and that the plaintiff was one of his assignees. 0 We do not see what ground there is presented for refusing <j j. o evidence of the debt sued on, and are of opinion that *e judge did not err.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Rigg and Winn, for plaintiff and appellant.

Janin and Boyce, for defendant and appellee.  