M'Lean v. Hugarin

Per Curiam.

The certificate of the former trial between these parties was sufficiently authenticated. It is necessarily to be inferred that it was, in fact, as it purports to have been, under seal, as required by the statute : at all events, no objection was made to its admission upon the trial j and it cannot, now, be called in question. Although the demand, in this case, sounds in tort, and might not, in strictness, have been admissible as a set-off on the former trial, yet if it were admitted without objection, and has been once tried, that judgment is conclusive with respect to this matter; and the only question is, whether-testimony was admissible to contradict the justice’s certificate of the former trial. This certificate clearly shows, that this same matter has once been tried.

The act authorizing the giving of such certificates, (1 R. L. 398. s. 21.,) declares, that it shall be good and legal evidence to prove the facts contained in such exemplifications. In the case of White and Hall v. Hawn, (5 Johns. Rep. 351.,) this court decided that parol evidence of a former trial was inadmissible. In Posson v. Brown, (11 Johns. Rep. 166.,) the same principle was recognised; and it was there said, that although the proceedings and .judgment before a justice, may not be technically a record, yet the material parts are in writing, and ought to be produced: that parol evidence was not the highest and best evidence: that the statute directing the manner in which such proceedings are to be authenticated, seems to regard them in the nature of a record. If, then, as has been settled by this court, parol evidence is inadmissible to prove the proceedings of a former trial, it must follow, as a necessary consequence, that such evidence is not admissible to contradict the written evidence of such proceedings. The judgment must, therefore, be reversed.

Judgment reversed.)