Graham vs. Gordon

Graham vs. Gordon. The recovery of a judgment in a Court of Record, can in no case be proved by parol evidence, THIS was an action on the case. The plaintiff stated in his declaration, that the defendant had sold and conveyed to the plaintiff, by deed dated the-day of-, a certain lot of land in the South Hero, being Lot No.-laid to the original right of A. B. containing sixty acres, which deed contained a covenant of warran-' ty. — That afterwards, Stephen Pearl, before the County Court-for the County of Chittenden at the term of said Court holden on the -day of- — , recovered a judgment against the present plaintiff for the same land, in an action of ejectment. Whereupon, the defendant promised the plaintiff, that in consideration the plaintiff would forbear to bring an action against the defendant on the covenants contained in his said deed, he would execute and deliver to the plaintiff his promissory note for the value of the land, at an appraisal to be made, and would indemnify the plaintiff against the bill of cost recovered in the action of ejectment. — That the plaintiff had forborne to bring an action on the covenants contained in said deed. — That defendant had executed and delivered to the plaintiff his note, for the value of the land, but had neglected and refused to pay the bill of cost, whereby the plaintiff had been obliged to pay the same, to the amount of £l'3,11 s. lid. Plea — Non Assumpsit. The plaintiff produced in evidence the deed of the defendant, as mentioned in the declaration, which contained a limited covenant of warranty. Witnesses were called to prove the recovery in ejectment against the present plaintiff, by Stephen Pearl — the promise as alleged in the declaration, and that the plaintiff had paid the said bill of cost. The counsel for the defendant objected to the evidence offered, on the ground that the recovery was the substantial part of the consideration in the case — that it could be proved only by the record, which is the best evidence, and indeed the only evidence which can be admitted. Chittenden. June adj'd term, 1797. Fay, for plaintiff, insisted that tile recovery was only matter of inducement; therefore, although it would be mentioned in proving the promise, yet not being a matter of substance, it was not necessa~ ry to produce the record of the recovery. [MAJORITY — By the Court.] By the Court. The recovery in ejeetment is the substance of the consideration, and can be proved by the record only. It comes within the established rule, that the best evidence ~vhich the nature of the case will admit must be produced. Indeed, this rule embra. ces every case, where a party would for any purpose prove the re~ eove~y of a judgment. The cause was continued on terms.