Townsend against Chase

Townsend against Chase. Certiorari from a Justice’s Court. The certificate of a justice is not ad™oyehjs ro° ceedings, till after judgment in the cause. It is then evidence of the judgment, and the proceedings which led to it. It is a good plea, in assumpsit, that the defendant had first brought assumpsit, against the plaintiff, before, a justice. But if both suits are brought at the same time, the process first served shall take preference. If commenced on the same day, they shall be deemed to have been commenced at the same time; for the court will not distinguish between the fractions of a day. , Assumpsit, by Chase against Townsend. The suit was , , J 7 . , , „ . commenced by summons. 1 ownsend pleaded a former suit in bar, which was then pending. To support this plea, he produced a certificate of the Justice, before whom the first suit was commenced, from which it appeared that the pendency of this suit was pleaded in that and overruled, but upon what evidence did not appear. The certificate of the Justice was objected to, as incompetent evidence; but admitted. The constable, who served the summons in this suit, testified, that he received it on the 11th of June, and immediately served it upon Townsend; that after it was served, Townsend gave him the summons against Chase, which was served on the same day. The Justice decided that the plea-of a prior suit was not sustained. Townsend, the defendant, then abandoned the cause. J udgment was given for the plaintiff. D. H. Chandler, for the plaintiff in error; II. Putnam, for the defendant. [MAJORITY — Curia.] Curia. The judgment is clearly according to the justice of the case. The plea, of a former action, was not sustained by competent proof. The 21st section of the twentyfiye dollar act, makes the official certificate of the Justice legal evidence, only after a judgment rendered. It is then evidence of due judgment, and of the proceedings which led to it. This is the obvious meaning and construction of that section. But if the character of the evidence were unexceptionable, it does not support the plea; though it was, undoubtedly, a good bar, if sustained. This was settled in Douglass v. Hoag, (1 John. Rep. 283.) The same case, and also the case of Boyce v. Morgan, (3 Caines, 133,) determine, that the issuing of the summons is the commencement of the suit. In this case, both summonses were issued upon the same day, but the summons, in this suit, was first served. After it was served, Townsend handed to the same officer the summons in the other suit. In the absence of proof, as to the time of issuing, the process first served must be presumed to have been first issued ; and where both writs are issued upon the same day, that suit must be considered as first commenced, in which the writ is' fust served; although the other writ was, in fact, first issued ; the Court not distinguishing between different parts of the same day. Judgment affirmed. ,1S. L. 8* Co. Litt. 135, b. 2 Bl. Com. 141. And vid. 8 John. Rep. 350.