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of the action was not inquired into before the arbitrator. (1)
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 admitted 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.
(t) Ravee v Farmer, 4T.R. 146. (1) 3 Taunt. 16*. ante, p. 23s, 6.
Of the Proof of Records, and judicial Proceedings.
T> ECORDS 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)
Acts of par- The printed statute-books have been at all times admitted liamtntf. M evjjence Qf 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. The regular proof of these is 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 public; in which case, the copy printed by the king's printer will be sufficient evidence of its contents. (1)
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. But when the record, denied by the issue, is in a court of superior or concurrent jurisdiction, the trial is then by the tenor 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
(1) Sec ante, p.no. (5) Luttrel v. Lea, Cro. Or 297.
(%) Gilb. Iv. 11,1a. Pitt v. Knight, 1 Saund. 98. Hewson
(3) Gilb. Ev. 1 i. v. Brown, 1 Burr. 1034.
(4) 3 lust. 173. Gilb. Ev. I1. Eull . N. P. a16.
U . of
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 (i). And in pursuance of this writ, where the superior court sends for the record of an inferior court, not for the purpose of seeing 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 tenor (that is, a literal transcript,) of the record (2). 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
(1) Butcher and Aldworth's case, (c) Dyer, 276. cited per Cur. ia Cro. Eliz. 821. Guilliam v. Hardy, Olive v. Gwin, 2 Sid. 146. lLd.Ray.a16. (6j lb. Hardr. 118. S. C. Ghk.et.
(2) Woodcraft r. K5nastcn, 2 Atk. 16.
|I7- (7) Kimptondcm. Boyfield r. Crota,
'"% ">• Rep. temp. Hard. ic8.
n 1i Xt r. *
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 purports to be under the seal of a corporation, it will be sufficient to shew that the seal is the official seal of the corporate body. (3)
3. Copies of records, not under seal, are also of two kinds; sworn copies, and office copies.
Records are complete, as soon as they are delivered into court in parchment, and there fixed as the rolls of the court. Of these, a sworn copy will be sufficient evidence for a jury, unless the record itself is in issue. But the copy of a judgment signed by the master is not evidence, though upon such judgment execution may be taken out; for it is not yet become permanent, and is removable from place to place. (4)
Copies of records are to be proved as other transcripts, by a witness, who has compared the copy, line for line, with the original, or who has examined the copy, while another person read the original (5). But when an ancient record has been lost, a copy may be read without proving it a true copy. Thus an unexamined copy of a recovery of lands in ancient demesne has been received, where the original was lost, and where possession had gone for a long time according to the recovery (6). And similar proof has been allowed of the decree in the time of Henry
(1) Her.ry v. Adey, 3 East, 2II. (5) Reid v. Margison, on a rule to
(a ) Moisesv. I hornton, 8 I'.R. 307. shew causr,in the Exchequer, 1 Carri|'b
(3) 8T.R 307. In Woodnas* v 470. Rolf r. Dart, 2 Taunt. 52. Mason, 1 Esp N. P C. 53., it was held M'Niel v. Pert.hard, 1 Esp. N.P.C. 163, by Lord Kenyon, that the seal of the cor. Lord Kenyan. Gylei v. Hiil, (ity cf London proves itself. 1 Campb. 471. n. cor. Lawrence J.
(4) Bull.N. P. 118. (6) Anonym, case, Ventr. 257.
U 2 the the Eighth for tithe in London, that decree having been lost (1). In such cases, says Ch. B. Gilbert, the instrument must be, according to the rule of the civil law, vetustate tcmporis aut judiciaria cognitione roboratum. (2)
It is a general rule, that a copy, authenticated by a person appointed for that purpose, is good evidence of the contents of the original, without any proof of its being an examined copy. The chirograph of a fine, for example, is evidence of the fine, the chirographer being appointed to give out copies of the agreements between the parties, which are entered of record (3). So an indorsement by the proper officer on a deed of bargain and sale, enrolled according to the form of the statute 27 H. 8. c. 16., is evidence of the enrolment (4). A rule of court under the hand of the proper officer is itself an original, and may be given in evidence in a legal proceeding in that court, without being proved a true copy (5). So, in a case where a witness, being about to leave the country, had been examined at a judge's chambers, a copy of his depositions, delivered out by the clerk of the judge, and attested by the clerk's signature, was admitted in evidence, without proof of its being examined and compared with the original depositions (6). But where the officer of the court is not entrusted to make out a copy, and has no more authority than any common person, the copy must be regularly proved in the strict and regular mode. Thus the office copies of depositions, though they are evidence in the court of Chancery, where officers are entrusted for that purpose, will not be admitted in courts of common law, without examination with the roll (7). So, where a fine is to be proved with proclamations, as it must be to bar a stranger, the proclamations ought to be examined with the roll;
(0 Ventr. 157. Knight v. Daulcr, (4) l,er Buller J. in Kinner,ley r. Hardr. 313. Thurston v. Station!, Orpe, I Doug. 56. I Sulk. 284, per Holt C. J. (.5) Selby v. Harris, 1 Ld. Ray. 745.
(1) Gilb. Ev. ip. (6) Duncan v. Scott, 1 Caropb. 101.
(3) Gilb. Ev. «. (7) Gilb. Ev. a 1.