the assignee under a commission of bankruptcy of one of the partners, (in which action the plaintiff produced the award and deed of reference, as evidence of a separate debt due to him from the bankrupt,) the Court of King's Bench held, that it was indispensably necessary to prove the execution of the deed by all the parties; for this was a reference of the aggregate accounts between all and each of the partners, and the consideration to each for entering into the submission was, that each party's account should be liquidated, not only as to one, but as must ultimately have been resorted to for this purpose. But no such necessity exists. Commissions are always granted for taking testimony abroad, and the commissioners have authority to administer oaths, and to certify the depositions by them taken." Marine ordinances of foreign countries, promulgated by the executive, by order of the legislature of the United States, may be read in the courts of the United States, without further authentication or proof. Talbot v Seaman, 1 Cranch 1. The admission of a party that he had infringed the revenue laws of a foreign country, whereby the plaintiff had sustained damage, for which he stipulated to indemnify the plaintiff, will supersede the necessity of further evidence of those laws. Smith v Elder, 3 Johns. Rep. 105. As to evidence of the acts of state of a foreign government, vide 1 Câmpb. 65. n. (a) The manner in which the acts of the legislatures of the several states are to be authenticated has been already stated: vide ante, 289. n. The same section of the act of congress directs, that "the record and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the U. States, by the attestation of the clerk, and the seal of the court annexed, if there be a sea!, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken." I Laws U. S. 115. 8. 1. Of the effect, in evidence, of a record thus authenticated, see supra, p. 254. n. A record, the attestation of which was not cer tified to be in due form, was held not to be sufficiently proved. Smith v Blagge, 1 Johns. Cas. 238. Where there is no seal, it should be certified that there was none. 1 Haym. 395.n. In Ellemore v Mills, 1 Hayw. 359., it was held that the act of congress was only affirmative and did not abolish such modes of authentication as were used before it passed. A record of a court of the U. S. is not within the act of congress, and it was held, that a record of the Circuit Court of the United States for the district of Massachusetts, under the seal of the court, but certified by the clerk as a copy, this being the ordinary mode used in Massachusetts, was sufficient. Pepoon v Jenkins, 2 Johns. Cas. 119 Records from one state may be proved in another state in the manner prescribed by the act of congress, and such proof is of as high a nature as an inspection by the court of its own record, or as an exemplification would be in any other court of the same state. 7 Cranch Rep. 484. Mills v Duryee. If a clerk ef a court, in pursuance of saïd act, certify 1 to all; the accession of all therefore ought to be prov ed; and, without such proof, the arbitrator would not appear to have competent authority to decide the whole question between the parties. (1) (a) CHAP. VI. Of Public Writings, not judicial. THE next species of evidence, which our subject teads us to consider, relates to such public writings as are not judicial. In treating of this part of the subject, it will only be necessary to mention some of the principal documents of this description; after which, we shall proceed to enquire, how a party, who wishes to use public writings in evidence, may obtain an inspection. Domesday The most ancient public document in the kingdom is Domesday-book, consisting of two volumes, kept in the book. receipt of the Exchequer. They contain a general survey of all the counties in England, excepting the four [321] northern, and were compiled soon after the Conquest for the purpose of ascertaining the ancient demesne lands, which were the socage tenures first in the hands of Edward the Confessor, and afterwards of William (1) Antram v Chace, 15 East, 209. * 303 at the foot of a paper, purporting to be a record, "That the aforesaid is truly taken from the record of proceedings" of his court, and if the judge, chief justice, or presiding magistrate certify that such attestation of the clerk is in due form of law, it is to be presumed that the paper so certified, is a full copy of all the proceedings in the case, and is admissible in evidence. But if the writing produced do not purport to be a record but a mere transcript of the minutes, extracted from the docket of the court, it is not admissible in evidence, so, likewise, if the judge does not certify. Ferguson Harwood, 7 Cranch 403. Drummond v Magruder & Co. 9 Cranch 122. (a) The only competent evidence, that an award made pendente lite was afterwards set aside on exceptions taken, is a transcript of the record duly authen ticated. Buford v Buford, 4 Munford 241. Surveys of ecclesiastical benefices. * 304 the Conqueror. This has been always considered a book of the greatest authority; and if a question should at any time arise, whether a manor is ancient demesne, the trial is by inspection of Domesday-book. (1) These volumes have of late years been printed at the expense of government, in consequence of an address from the House of Lords; and the work is said to be executed with the most scrupulous fidelity and correctness. (2) Another ancient survey, which ascertains the extent of the king's ports, is also deposited in the Exchequer. (3) These surveys are recognised and treated as authentic documents in courts of justice, having been made by the authority and order of the government of the country, on public occasions, and on subjects of public interest. The Valor Beneficiorum, or Pope Nicholas's Taxation, is another document of a public nature. In the year 1288, Pope Nicholas the Fourth, to whose predecessors in the see of Rome the first fruits and tenths of all ecclesiastical benefices had for a long time been paid, granted the tenth to King Edward the First for six years towards defraying the expense of an expedition to the Holy Land; and, that they might be collected to their full value, a taxation by the king's precept was be gun in that year, and finished for the province of Canterbury, in the year 1291, or the 20th year of the reign of Edward the First; and for that of York in the following year; the whole being under the direction of the Bishops of Winton and Lincoln.(4) This taxation of Pope Nich olas is an important document, because all the taxes, as well those paid to our kings as those to the Pope, were regulated by it, till the survey made in the twenty-sixth year of Henry VIII.; and because the statutes of colleges, which were founded before the Reformation, are also interpreted by this criterion, according to which (1) Hob. 188. Gilb. Ev. 69. (2) First Report of H. of Commons, on Public Records, Appendix, A. 1. a. (3) Gilb. Ev. 69. (4) See first Report of H. of Commons on the Public Records, p. 15. their benefices under a certain value are exempted from [32 the restriction in the statute of the twenty-first of Henry VIII. concerning pluralities. (1) The original is kept in the office of the king's remembrancer in the Exche quer. A new Valor Beneficiorum was instituted in the twenty-sixth year of Henry VIII., when the first fruits and tenths of every ecclesiastical promotion were annexed to the revenue of the crown.(2) To ascertain their value, ecclesiastical surveys were taken, by virtue of commissions in the king's name issuing under the great seal; (3) and these surveys are admitted as evidence of their amount at that period, although they are generally considered as estimating the value much too low.(4) Upon the same principle, surveys of the possessions of religious houses, previous to the dissolution of the monasteries, are receiv ed in evidence.(5) These surveys are admissible, although the commissions, under which they were taken, are not to be found.(6) Surveys of the church and crown lands were taken by commissioners in the time of the commonwealth, under the authority of acts or ordinances of the parliament; and copies of these surveys were deposited in many of the cathedrals. The originals would have been good evidence of the particulars of the surveyed estates, upon the same principle as the other public surveys, which have been before mentioned; but as they were destroyed at the time of the great fire in London, the copies have been admitted, as evidence, in the place of the original surveys, provided they have been kept in unsuspected repositories. (7) The parliamentary surveys have the (1) Humphreys v Knight, Cro. Car. 155, 2 Lutw. 1305. Stump v Aylide, 2 Gwill. 536. (2) St 26 H. 8. c. 3. (3) Sect 3. & 10. (4) 3 Gwill. 856, 1240. Cambridge, I Wils. 170. (6) See (5) and Bagshaw v Bp. of Bangor, cited in Underhill v Durham, 2 Gwill. 542. (7) Underhill v Durham, 2 Gwill. 512. Green v Proude, Mod. 117. (5) Vicar of Kellington v Tria. Coll. Bullen v Michel, 4 Dow, 325 * 305 Journals of parliament. (323) Gazettes. credit of being taken with extreme accuracy and minuteness. The circumstance, there, of these surveys being silent as to a supposed modus, has been considered to be strong evidence against its existence.(1) The Journals of the Lords or Commons are evidence of their proceedings. Thus, an entry in the Journals of the House of Lords, stating that a judgment below has been reversed, is evidence of the fact of reversal; (2) and the Journals have been admitted to prove an address from the House of Lords to the King, and the answer of the King. (3) Thus, the address of the Lords to the king, and the king's answer, proved by the Journals, were admitted as evidence of an averment in an information, that certain differences had existed between the King of England and the King of Spain. Here, it is to be observed, the fact related purely to a matter of state, and therefore admitted of this kind of proof. But a resolution of either House is not evidence of the truth of facts there affirmed; and therefore in the case of Titus Oates, who was charged with having committed perjury on the trial of persons suspected of the popish plot, a resolution in the Journals of the House of Commous, asserting the existence of the plot, was not allowed to be evidence of that fact. (4) (a) The public acts of government, and acts by the king in his political capacity, are commonly aunounced in the Gazette, published by the authority of the crown; and of such acts announced to the public in the Gazette, the (1) 11 East, 284. 1 Maul. & Selw. (2) Jones v Randall, Cowp. 17. cited by Buller J. 5 T. R. 445. And see the case of the seven Bishops, 4 St. Tr. 376. (4) 4 St. Tr. 39. (a) A printed copy of public documents, transmitted to congress by the president of the United States, and printed by the printer to congress, is evidence. Fer Kent, Ch. J. Radcliff v United States Ins. Co. 7 Johns. Rep. 38. (In this case a printed copy of a letter from the British secretary of state to the American aubassador, was offered as evidence of the existence of a blockade.) |