The opinion of the court was delivered by
Isham, J.The writ on which the judgment was rendered in favor of Waterman against Eastman & Paige, was served by the attachment of property, and a copy left at the place where the property was attached, as the defendants were residents of Massachusetts, and had no known agent or attorney residing in this state. The Comp. Stat. 236 § 57, 58, renders it the duty of the justice, under such circumstances, to continue the case for a term not exceeding one month, for the purpose of notifying the defendants of the commencement and pendency of the suit; and in his discretion to grant further continuances, unless he is satisfied that such notice has been given. If notice has not been given, the justice, after the first continuance, may render judgment for the plaintiff by default. In such case, however, before execution can issue, a recognizance for review must be entered, otherwise the execution will be set aside on audita querela. Whitney v. Silver, 22 Vt. 634. But if notice has been given no such recognizance is required; the judgment is final and conclusive, and the plaintiff is entitled to his execution on the judgment.
In the case now under consideration, the plaintiffs complain that a judgment in that suit was rendered against them, and that an execution was issued, without notice having been given to all the defendants of the commencement of the suit, and that no recognizance was given to refund whatever sum might be recovered by a writ of review. It is admitted that Eastman had notice of the suit, but the fact is found, by the introduction of parol testimony to that effect; that no such notice was given to Mr. Paige, and for that reason the judgment and execution were vacated,and damages awarded. From the record of the justice it appears, that the suit before him was returnable on the 10th day of May, 1851, and was continued in order to notify the defendants of the pendency of the suit, and *500by regular proceedings was further continued, for the same purpose, to July 24, 1851, when the justice adjudged, that notice of the pendency of the suit was given to both of the defendants, and the fact so adjudicated, a ppears on the face of his record in that suit. The question arises whether that record is conclusive in this action, on the question of such notice; or whether that record maybe contradicted and impeached by parol evidence, showing «that no such notice was given.
The case of Pike v. Hill, 15 Vt. 183, establishes a principle quite decisive upon that question. In that case it appeared from the record of the justice, that the suit before him was continued to the 22d of August, for the purpose of giving notice to the defendant of the pendency of the suit; and that on that day no notice was taken of the case, nor until the day following, when at the request of the plaintiff a further continuance was entered upon the record to the 12th of September — at which time judgment was rendered for the plaintiff by default. On the trial of the writ of audita querela, brought ,to set aside that judgment as having been rendered after a discontinuance of the suit by the neglect of the parties to appear on the 22d of August — it was held, that parol evidence was inadmissible, when offered by the plaintiff to show that he was present and appeared at that time, as its tendency was to contradict the fact certified and stated in the record of the justice. In delivering the opinion of the court in that case, the case of Barnard v. Flanders, 12 Vt. 657, was referred to, and approved, in which the record of the discontinuance of an action was held conclusive, in a suit against the justice; though he was directly interested to make, as was alleged he did, a false record. The principle decided in the cases of Pike v. Hill, and Barnard v. Flanders, renders parol testimony inadmissible, when offered for the purpose of contradicting the facts certified and stated by a justice in his record, whether the matter arises collaterally, or upon the writ of audita querela brought to set aside that judgment. In either case the principle applies, which has been frequently recognized in this state, that the records of a justice of the peace are conclusive evidence of the facts there stated, and judicially found, and can no more be impeached or contradicted by testimony aliunde, than can the records of any other court when *501acting within the sphere of its jurisdiction. Stone v. Proctor, 2 D. Chip. 109. Martin v. Blodgett, 1 Aik. 379.
In the case of Stone v. Proctor, it was observed, “ that justice’s “ courts were courts of record. If a justice of the peace should “ refuse to record, or to certify his record of any cause by him “tried, of which he has jurisdiction, this court have power to com- “ pel him, but when once the record is produced, it has the same “ conclusiveness between the parties, as the record of any other “ court.” In this case, if the justice had neglected to record his proceedings, or to certify a full record of them, the performance of his duty in that respect, might have been enforced by direct proceedings against the justice. But if, instead of resorting to those proceedings to obtain a correct and full record, the party sees fit to meet the record as made by the justice, he must be bound by the facts there stated and certified. In such case, the record must be regarded as the only proper evidence in actions of this character, or whenever the facts there stated arise collaterally between them, unless some provision by statute is otherwise made. That is the principle of the cases in this state, and it is the doctrine of the common law. Brittain v. Kinard, 1 Brad. & Bing. 432. Mather v. Hood, 8 Johns. 46. In all these cases, the testimony of the magistrate is as inadmissible as that of any other person, for the objection, is to the degree and competency of the testimony, and not to its credibility. It was so ruled in the case of Nye v. Killam, 18 Vt. 594, in which the court observed, “ that parol evi- “ denee of the magistrate should not have been received for the “purpose of proving or supplying any part of the record, or files “ in the case.” If the justice had stated in his record, the facts disclosed in his affidavit, the case would be different from that which now arises. But so long as the record of the justice remains as now certified, we must regard it as affording conclusive proof that notice of the pendency of the suit was given to both of the defendants in that action, and consequently that no recognizance for review was necessary in the case.
The fact being found by the justice, and stated In his record, that notice of the commencement of the suit was given to both of the defendants, the plaintiff was entitled to his judgment and execution, as a matter of legal right. The justice had no right to require or take a recognizance for review, after that record was *502made; for that can he required only after the first continuance of the case, and where there is no record evidence that he was satisfied that notice had been given. If a recognizance had been taken it would have had no legal effect; the act of taking it by the justice would have been without jfidicial authority, as it was not required or authorized by any provision of the statute. A writ of review could not be sustained, so long as that record remained, and if brought, the difficulty arising from that statement in the record could not have been avoided by the testimony of the justice, or of any other person, showing that the record was incorrect,-and that notice was not given. If the testimony would not be admissible in such a case, it ought not be received in this case; for it would be exceedingly inconsistent to vacate that judgment and execution under this writ, for the want of such recognizance, when the recognizance, if it had been given, would have been of no avail, and would have had no legal effect.
If the justice had not jurisdiction of the subject matter of the suit before him, or if the proceedings had been such that the suit was thereby discontinued, a judgment rendered under such circumstances would be vacated by this writ. Crawford v. Cheney, 12 Vt. 567. So too, if by the fraud of the party the defendant has been deprived of his day in court, this remedy may be had; for this writ is a remedial and equitable process, and relief is granted, not as acting upon the judgment of the court, but upon the wrongful and fraudulent acts of the party. Little v. Cook, 1 Aik. 363. When a judgment or a record of a justice has been obtained by fraud of the party, the judgment and the proceedings will be inquired into, under this writ. It was upon the application of these principles that the case of Paddleford v. Bancroft, 22 Vt. 535, was decided, to which we have been referred. This case, however, does not fall within those principles. The justice had jurisdiction of this case; the suit had not been discontinued by any informality in - the proceedings before the magistrate; and from the facts stated in the record, the party was entitled to his execution on the judgment; neither has the defendant been deprived of his day in court by the fraud of the party. No such fact is found or stated in the case. Under such circumstances, there is no ground upon which to sustain this writ. The remedy of the party is to be found in another mode. Either by causing the facts *503which he claims to exist to appear on the record of the justice, and then seek his relief in this form; or by a petition under the act granting relief where a judgment was obtained by fraud, accident or mistake ; a remedy which was sought and obtained under circumstances precisely like the present in the case of Mosseaux v. Brigham, 19 Vt. 458.
If notice of the pendency of that suit had been given in fact to both of the defendants, it is not pretended that a recognizance was necessary, or that there would be any ground of complaint. So long, therefore, as a judicial record of that fact exists, made by a court having jurisdiction of the case, we are not permitted, in this manner, to go behind that record, and on the testimony of the magistrate, or any other person, to re-adjudge the matters' then judicially before him, and vacate the execution and judgment of that court.
There is no objection to the.'entry of the continuance being in the hand writing of the plaintiff’s attorney, if they were granted by the court, and the entries adopted and assented to by the justice in placing his official' signature to them. That the continuances were so granted, and the entries assented to, is distinctly stated in the case. Neither is this affected by the fact that but one copy was left in the service of the original writ. Those are matters that cannot be reached by the writ of audita querela.
The judgment of the County Court must be reversed, and judgment rendered for the defendant.