#### John Morrison v. John Hinton, for the use of Moses Silverburg.

Error to Jo Daviess.

1. Certificate — »/ magistracy. A clerk’s certificate of the official character of the ju'stice of the peace, which eerufies that he was such officer at the date of the certificate, is not evidence of the official character of the justice, at a prior time when he rendered a judgment which he has certified to; nor is such certificate of the clerk aided by the certificate of the presiding judge, that it is in due form of law.

2. Evidence — error in excluding not always reversed. Where there is a valid objection to the admissibility of the certificate of a fact in evidence, but such certificate is excluded upon erroneous grounds, the judgment should not be reversed, if it appear that such objection could not have been removed at the time the certificate was offered, if it had then been made.

The defendant in error instituted a suit before a justice of the peace of Jo Daviess county, upon a promissory note of $100, against the plaintiff in error, who defended the suit, and the justice dismissed it. Silverburg appealed to the circuit court,’ where the cause was heard at the November term, 1841, before the Hon. Thomas C. Browne and a jury. Verdict was found. against Morrison for $108.50, upon which judgment was rendered.

On the trial in the court bélow, after the plaintiff had introduced the note in evidence, the defendant offered in evidence a *474transcript of a judgment rendered by one Cyrus K. Lord, a justice of the peace of Grant county, in the territory of Wisconsin, against said Morrison, as garnishee of said Hinton, for the amount of said note. Annexed to the transcript was the following certificate :

“ Territory of Wisconsin, ) gg County of Grrant, j

I, John S. Fletcher, clerk of the district court in and for said county of Grant, do hereby certify that Cyras K. Lord, whose name within appears, is an acting justice of the peace, in and for . the said county of Grant, and duly qualified as such justice of the peace, and that full faith and credit are to be given to all his official acts as justice of the peace; and that the within signature purporting to be bis is his genuine signature.

[*458] In testimony whereof, I have hereto set my hand and the seal of the said court, at Lancaster, this 16th day of November, 1840.

“JohN S. Fletcher, Clk. Dist. Ct. [Seal.] _ G. Co., W. T ”

_ Annexed to this certificate was the certificate of the presiding judge of the court, that Fletcher was its clerk, etc., and that his certificate was in due form of law.

The plaintiff objected to the admission of these transcripts, because it did not appear that there was any special law in the statutes of Wisconsin, authorizing the clerk of the district court of Grant county, Wisconsin territory, to certify to the official character of justices of the peace. Whereupon the defendant, by his counsel, offered and read in evidence § 8 of “an act concerning justices of.the peace,” from the statutes of Wisconsin, page 32U, as follows: “ Every justice of the peace hereafter appointed, before he enters on the duties of his office, and all justices of- the peace now in office, who have not complied with the requisitions of this act, shall take an oath or affirmation to support the Constitution of the United States, and to administer justice without respect to persons, and faithfully to discharge and perform all the duties of his said office, according to the best of his abilities and understanding, which oath or affirmation shall be made in writing, and filed and recorded in the office of the clerk of the district court of the county in which such justice of the peace may reside, and shall execute to the treasurer of the same county, a bond with two or more sureties, to be approved of by the treasurer of the county, and filed and recorded in the office of the said clerk of the district court, in the penal sum of-'$500.” The defendant then offered in evidence and read from said statute, page 246, the following: “The records and judicial proceedings of any court of any state or territory, or of the United States, shall be admissible, in evidence in all cases in this territory, when authenticated *475by the attestation of the clerk, prothonotary, or other officer having charge of the records of such court, with the seal of such court annexed.”

The defendant, by his counsel, read further from the same book, page 248 : “ Where a certified copy of any affidavit, record, document, or other paper is allowed by the law to be evidence, such copy shall be certified by the officer in whose custody the same is required by law to be, to have been compared by him with the original, and to be a correct transcript therefrom, and of the whole of such original; and if such officer have any official seal bylaw, such certificate shall be authenticated by such seal.” The objection was sustained by the court; to which decision the defendant excepted, and brought the cause to this court by writ of error.

N. H. Purple and T. Campbell, for the plaintiff in error.

Joseph B. Wells (with whom was A. L. Holmes), for the defendant in error,

cited Trader et al. v. McKee, [*459] 1 Scam. 558; Warner v. Flagg, 2 Pick. 448; Mahurin v. Bickford, 6 N. H. 567; Thomas v. Robinson, 3 Wend. 269; Statutes of Wisconsin 320, § 4, 321, § 9.

WiLSON, Chief Justice,

delivered the opinion of the court: The sufficiency of the certificate of the clerk of the district court of Grant county, in the territory of Wisconsin, to prove the official character of a justice of the peace in said county, by whom several judgments sought to be given in evidence, purported to have been rendered, is the only question to be decided. The court below rejected the evidence because the official character of the justice was not verified by the proper officer. Admitting the reason assigned for this decision to be insufficient, yet if there was a valid objection to the sufficiency of the clerk’s certificate to prove the fact for which it was introduced, and that defect appeared upon its face and was of such a character that it could not have been removed at the time, had it been relied upon, this court is bound to notice it, and for that reason affirm the judgment. This is-the situation of the present case; and we are to decide upon the correctness of the judgment of the court below upon its 'conclusion, and not upon the justness of the reasoning by which that conclusion was attained.

The clerk has certified to the official character of the justice of the peace at the time of certifying, but he does not certify-that he was a justice at the time the judgments appear to have been rendered by him. This is a fatal defect, and such as could not have been overcome. Evidence that this person was a justice of the peace at the date of the certificate does not prove that he was such several months prior to that time, when the judgments were rendered. Nor is this objection to the *476clerk’s certificate obviated by that of the judge of Wisconsin certifying that it is in due form of law. That can add nothing to the certificate of the former, nor dispense with the statement of any material fact by him. His certificate is therefore defective in not having relation to the official character of the j ustice at the time he acted in that capacity, in rendering the judgments proposed to be given in evidence.

Note. See La Fayette Bank of Cincinnati v. Stone, I Scam. 424; King v. Dale, 1 Scam. 513; Trader et al. v. McKee, 1 Scam. 558; Jackson v. The People, 2 Scam. 232.

The judgment of the court below must therefore be affirmed.

Judgment affirmed.