Croswell v. Byrnes

9 Johns. 287

• Court: New York Supreme Court
• Decided: October 15, 1812
• Status: Published

Opinion

Per Curiam.

On the issue of nut tiel record, a record of a judgment corresponding with the plea was produced, and to rebut that evidence, the plaintiff produced a rule of the same court, of a subsequent term to the judgment, setting aside the judgment for irregularity. There is no doubt of a competent power in the court to make such rule; but the question is, whether the entry of such a rule upon the minutes, is to be received as evidence against the record ? It appears to be contrary to all the well-settled’ technical rules upon the subject, to give the entry that effect. A record imports verity, and can only be tried by itself. The vacatur ought to be enrolled, or entered of record, as much as the rule for judgment. The 90urt could not receive the entry on the minutes of a rule for judgment, as evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrolment of the judgment ? The maxim in this, as well as in other cases, is, that nihil tarn naturale quam quidlibet dissolvi eo modo quo ligatur. (Jenk. Cent. 120.) To give an entry on the minutes that authority, would destroy the certainty, order and solemnity of enrolments; and it has been frequently held, that the courts cannot regard any proceeding as a matter of record until it is enrolled. (1 Salk. 329 , 1 Ld. Raym. 243. Jenk. Cent. 25.).

As the judgment for the damages is entire, and the plea of a former recovery went to the entire right of action, it becomes unnecessary to examine the other errors assigned, in respect to the trial of the issue joined on the plea of non assumpsit. The judgment rendered must he reversed in toto.

Judgment reversed.