CASES IN THE SUPREME SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT, JUNE TERM, 1829. [SUNBURY, JUNE 25, 1829.] DENNISON against OTIS. IN ERROR. The docket of a justice of the peace, obtained from his office during his absence from the county, and proved to be in his hand-writing, is evidence, although no Subpana has been taken out to procure his attendance. ERROR to the Common Pleas of Susquehanna county. On the trial of this cause, which was an action of replevin, brought by Mason Dennison against Israel S. Otis, the plaintiff offered in evidence a book, purporting to be the docket of Samuel A. Brown, Esq. a justice of the peace of Susquehanna county, containing, as was alleged, the record of a judgment, obtained by Dennison against Otis before the said justice, together with evidence, that he was absent from the county, and had been so for several weeks; that the said book was found in his office, and that it was in his hand-writing. The counsel for the defendant objected to the evidence, and the court rejected it, because no Subpæna had been taken for the justice, who resided in the county, and was within reach of an attachment. The rejection of this evidence was now assigned for error by Case, who argued, that as a certified copy of the docket would have been admissible in evidence, the original must be. VOL II. B (Dennison v. Otis.) Mallory, for the defendant in error, answered, that the evidence offered did not establish the fact, that the book in question was the docket of the justice. It might have been a scratch book. To establish the identity of a record, it must be proved by the keeper of it. The opinion of the court was delivered by ROGERS, J.-Without doubt, the docket of a justice of the peace is evidence to show a judgment; so, that the single question which we have to determine is, whether the docket was sufficiently proved or identified. The plaintiff offered in evidence a book, purporting to be the docket of Samuel A. Brown, Esq., a justice of the peace, and containing, as was alleged, (and which we are to take as true,) the record of a judgment, Dennison against Otis, accompanied with proof, that the justice was absent from the county, and had been so for several weeks; that the book was found in his office, and was in his hand-writing. The testimony was rejected, because no Subpœna was taken for the justice, who resided in the county, and was, at the time of trial, within reach of an attachment. The Court of Common Pleas, it would seem, had gone on the idea, that no person but the justice himself could prove his docket. We do not consider this to be the law, as it would introduce a strictness in relation to the docket of a justice, which would be attended with great inconvenience in practice. Any person who knows the fact, may identify the docket, so far as to lay a foundation for its introduction to the jury, who must ultimately decide; or, circumstances may be shown which afford a reasonable presumption, that the book offered, is the docket of the justice. It is admitted, that Brown is a justice of the peace; it was shown that he was absent; the book purported to be his docket, that is, as I understand the offer, it was so labelled, or bore intrinsic marks of being a record of his official proceedings; it was found in his office, and was in his hand-writing. Under these circumstances, we would suppose there was no reasonable room for doubt, that it was the docket of the justice; or, at any rate, we can perceive no violation of principle, and but little danger in handing it over to the jury for their inspection. No Subpoena was issued for the justice, but this is accounted for by the fact, that he was absent from the county. That he was then within reach of an attachment, we think of little consequence, as we consider the testimony of the justice not the only proof of the identity of his docket. Judgment reversed, and a venire facias de novo awarded. [SUNBURY, JUNE 25, 1829.] FRY against JONES and another. IN ERROR. On a demise of a grist mill, the lessee to render one-third of the toll, the lessor may distrain for the rent. ERROR to the Court of Common Pleas of Northumberland county. Replevin by John G. Fry against John Jones and Amos Straw, constable of Augusta township. The defendants avowed for rent in arrear, to which the plaintiff replied, no rent in arrear, and afterwards added the plea of non demisit. On the trial it appeared, that John Jones had demised to John G. Fry a grist mill, and a house, and lot of ground, for the term of one year, reserving as rent "one-third of the toll which the mill grinds," for which Jones, the landlord, had, by a warrant directed to Straw, the constable, required him to distrain; averring in the warrant, that one hundred and sixty and a half bushels of different kinds of grain, amounting in value to seventy-six dollars and fifty-eight cents, remained due and unpaid. The court charged the jury in favour of the defendants, for whom a verdict was given. A bill of exceptions to the charge having been taken, a writ of error was issued, which was argued by Donnell, for the plaintiff in error, who contended, 1. That the pleadings put not only the amount of rent, but the tenancy itself, in issue. The strongest defence was on the plea of non demisit. The plaintiff was not a tenant, but a servant, or agent, working on the shares. 2. The plaintiff could not tender the grain in satisfaction of the rent, after the distress. Warren v. Forney, 13 Serg. & Rawle, 52. The landlord's warrant was too general, being for different kinds of grain, without distinguishing how much of each. 3. But the main objection is, that on such a demise as this, there cannot be a distress. The third of the toll of a mill cannot be ascertained until an account is rendered by the miller. Distress can only be for a certain rent. Co. Litt. 142. Ib. 96. Addison, 347. Cró. Eliz. 143. 1 Salk. 162. The act of assembly of the 21st of March, 1772, Purd. Dig. 710, seems to require the rent to be certain. In the tenth section, the language is, that "it shall and may be lawful for all defendants in replevin, to avow and make cognizance generally, that the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant, or demise, at such certain rent or service," &c. Greenough, contra.-The practice in this state has been in accordance with that here pursued, upwards of a century. Military 2r 11 163 594 |