No objection exists to taking a recognizance orally, in the first instance. This is to be afterwards noted briefly on the books kept for such purpose, and subsequently drawn out at large.
But it has often been held that the minutes or memoranda upon the docket of the clerk of the court, or a magistrate, are competent evidence of an order or proceeding in court, in case the extended record has not been made. McGrath v. Seagrave, 2 Allen, 443. Pruden v. Allen, 23 Pick. 184.
Such memorandum, though brief in its terms, is competent evidence to establish the fact of taking the recognizance, before the same has been extended. Upon a claim made for the fees for taking such recognizance, the fact of taking the same may be shown by this memorandum, aided if necessary by the execution against the debtor, and the return thereon showing the arrest of the debtor, and the name of the creditor and debtor, and the fact that the latter was brought before such justice. For the purpose of showing facts bearing upon the case, and which are not required to be in writing, the testimony of the plaintiff was competent evidence.
Taking thus much merely of his evidence, and the documentary evidence, the plaintiff established by sufficient proof his right to recover his fees for taking the recognizance. Any mere informality in the minutes would not, under the circumstances of this case as they are stated, defeat the plaintiff’s right to recover, as was held when this case was at an earlier period be« fore the court. 3 Allen, 245.
Exceptions overruled.