288 action, which the one party hadagainst the other at the time of the reference, if it appear that the subject-matter *of the action was not inquired into before the arbitrator (1) (a). The certificate of a vice-consul has been compared to a foreign judgment. But the vice-consul is not, properly speaking, a judicial officer; nor is his certificate to be ad (1) Ravee v. Farmer, 4 T. R. 146. ante, p. 235, 6. (a) Vide ante, 236. n. (a). The rule is now settled in the state of New-York, that an award, although the submission were made a rule of court, cannot be impeached at common law, either in a collateral action or an action on the award, for a mistake either of law or fact, and that it can only be avoided, except in chancery, for corruption or partiality in the arbitrators. Shepherd v. Watrous, 3 Caines' Rep. 166. Newland v. Douglas, 2 Johns. Rep. 62. Barlow v. Todd, 3 Johns. Rep. 367. Cranston v. Ex'rs of Kenny, 9 Johns. Rep. 212. The law appears to be the same in Connecticut. Bulkley v. Stewart, 1 Day 130. Lewis v. Wildman, Id. 153. But it seems that in some of the states an award may be avoided at common law, for a palpable or gross mistake. Morris & others v. Ross, 2 Hen. & Mun. 408. Cleary v. Coor & Hanks, 1 Hay. 225. Sumpter v. Murrell, 2 Bay 250. It may not be improper, in this place, to take notice of a mistake which some American Editors have fallen into, respecting the law of the state of New-York in relation to awards. The subject of the awards of arbitrators, and that of the report of referees, have been confounded together: the former of which as before stated, is conclusive; the rbitrators being judges of the parties own choosing, they are bound to abide by their decision; but a reference is a proceeding directed by the court itself in the progress of a cause, by virtue of a particular statute, and the report of the referees, like the verdict of a jury, the place of which it is intended to supply, is subject to the revision and control of the court, and may be set aside either for irregularity or on the merits. A cause referred, but not according to the provisions of the statute, is regarded in the same light as a submission to arbitration. Miller v. Vaughan, 1 Johns. Rep. 315. Stevenson v. Beecker, Id. 492. mitted as evidence of the fact there stated. In the case of Waldron v. Coombe (2), the court of Common Pleas determined, that the certificate of a British vice-consul in a foreign country could not be received here as evidence of the amount of a sale, although by the law of that country he was constituted general agent for all absent owners of goods, and was authorized and compelled to make the sale in question (b). (2) 3 Taunt. 162. CHAP. V. Of the Proof of Records, and judicial Proceedings: RECORDS are, for security, preserved in public repositories, and, as they cannot be removed from place to place to serve a private purpose, examined copies are admitted as the best producible evidence (3). liaments. The printed statute-books have been at all times admit- Acts of par ted as evidence of public acts of parliament. And by the statute 41 G. 3. c. 90. s. 9., made for the better and more effectual proof of the statute law, it is enacted, that copies of the statutes of Great Britain and Ireland prior to the Union, printed by the printer duly authorized, shall be received as conclusive evidence of the several statutes in the courts of either kingdom. *A different rule has been adopted with respect to private acts of parliament (a). The regular proof of these is (3) Leighton v. Leighton, 1 Str. 210. (b) Vide post, 301. n. (a) Vide Proprietors of Kennebeck Purchase v. Call, 1 Mass. Rep. 483. In Duncan v. Duboys, 3 Johns. Cas. 125. the general rule is admitted, but the court refused to grant a new trial on the ground that the printed book was admitted in evidence, it being * 289 by an examined copy, compared with the original in the Parliament-office at Westminster. But to prevent the inconvenience of such a strict proof, a special clause is now usually inserted, providing that the act shall be deemed shown that the printed book was correct, by producing an exemplification of the private act. The court say, "Perhaps the reason why the printed statute book is excluded, that the statutes are not considered as already lodged in the minds of the people, does not apply to the case of a private statute given in evidence by the opposite party, against the party for whose benefit the act was passed; for it cannot then be intended as not lodged in his mind, and so cannot operate as a surprise upon him. This exception applies the more strongly in the present case, because the private act admitted on the trial of this cause had been published in a volume, certified to have been collated and compared with the original rolls." The legislature of New-York has since declared, that private acts printed by the Printer of the state may be read in evidence in all cases from the printed statute book. Sess. 36. c. 56. s. 32. 1 R. L. 527. And in Pennsylvania the same rule is established by a decision of the Supreme Court. Biddis v. James, 6 Binney 321. The Supreme Court of the United States has intimated the same opinion. 4 Cranch 388. The act of Congress of May 26, 1790, s. 1. 1 L. U. S. 115. has provided that the acts of the legislatures of the several states should be authenticated by having the seal of their respective states affixed thereto. The act of Congress does not require the attestation of any public officer in this case, although in all the cases afterwards provided for, [in the same section in relation to the authentication of records,] such an attestation is required. There is a good reason for the distinction. The seal is in itself the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy, as to the officer entitled to affix the seal, which is a regulation very different in the different states. By the court, (Washington, J. & Peters, J.) in the United States v. Johns, 4 Dall. 416. It was held, in the Supreme Court of Pennsylvania, in 1789, that a public statute of the state of Virginia, printed by the law Printers of the state, was sufficiently authenticated, so as to be at least prima facie evidence. Thompson v. Musser, 1 Dall. 458. Acc. Poindexter's Ex'rs v. Barker, 2 Hayw. 173. public; in which case, the copy printed by the king's printer will be sufficient evidence of its contents (1). courts, and Copies of records in courts of justice are of two kinds; Records of under seal, and not under seal. Those under seal are copies of. called Exemplifications, and are of higher credit, than any sworn copy; for "the courts of justice, that put their seal to the copy, are supposed more capable than a common person to examine, and more exact and critical in their examination (2)." These exemplifications are of two kinds ; under the great seal in Chancery, or under the seal of some other court (3). 1. The practice is not to exemplify a record under the great seal, unless it be either a record of the court of Chancery, or be sent from some other court into Chancery, the centre of all courts, by writ of certiorari. But in either of these cases a copy may be obtained, under the attestation of the great seal (4), If the record of a court is put in issue by a proceeding in the same court, the record itself is inspected by the judges (b). But when the record, denied by the issue, is in a court of superior or concurrent jurisdiction, the trial is then by the tenour of the record, which may be obtained by certiorari and mittimus out of Chancery (5), a method adopted for the purpose of communicating evidence of records from one superior court to another, without the inconvenience *of removing the originals. If the record of an inferior court is disputed in a suit before a higher tribunal, the certiorari may be issued out of a superior court, as well as from the court of Chancery (1). And in pursuance of this writ, where the superior court sends for the record of an inferior court, not for the purpose of seeing See ante, p. 220. (2) Gilb. Ev. 11, 12. (3) Gilb. Ev. 12. (4) 3 Inst. 173. Gilb. Ev. 12. Bull. N. P. 226. (5) Luttrel v. Lea, Cro. Car. 297. Pitt v. (1) Butcher and Aldworth's case, (a) Vide Burk's Ex'rs v. Tregg's Ex'rs, 2 Wash. 215. * 290 * 291 whether their proceedings are within the limits of their jurisdiction, but merely to know whether there be in fact such a record, it will be sufficient to certify the tenour (that is, a literal transcript) of the record (2) (a). But where' the record itself is the subject of the proceedings in the superior court, the original ought to be returned (3). When records are exemplified, the whole, in general, must be exemplified, for the construction is to be taken from a view of the whole together: and nothing but records can be proved by an exemplification. Private deeds exemplified under the broad seal, will not be admitted in evidence; for as the deeds themselves are in the custody of the party, they ought to be produced, that the court may see, whether there are any erasures or interlineations (4). 2. The second sort of copies under seal are exemplifications of the records of a court under its own seal; and they also are considered to be of higher credit than sworn copies. The seal of the king, and of the public courts of justice, and of all courts established here by act of parliament, are admitted in evidence without extrinsic proof of their genuineness; as, for example, the seal of the county palatine of Chester (5), or of the great sessions of Wales (6), or the seal of the ecclesiastical court on an exemplification of a will (7). But the seals of private courts, or of a fo*reign colonial court (1), or of a corporate body (2), ought to be proved by a witness acquainted with their impression. It is not, however, necessary to prove the seal of a corporation in the same manner as the seal of an individual, that is, by producing a witness, who saw the seal affixed to the identical instrument; but when an instrument pur (2) Woodcraft v. Kinaston, 2 Atk. (4) Buil. N. P. 227. (5) Dyer 276. cited per Cur. in Olive v. Gwin, 2 Sid. 146. (6) Ib. Hardr. 118. S. C. Gilb. Ev. 16. (7) Kempton dem. Boyfield v. Cross, Rep. temp. Hard. 108. (1) Henry v. Adey, 3 East 221. (2) Moises v. Thornton, 8 T. R. 207. (a) Vide Ladd v. Blint, 4 Mass. Rep. 402. |