Page images
PDF
EPUB

2. Written Evidence.

Written Evidence.

532. A sentence of reversal and restoration, by which property captured on the high seas is again restored to the owners, is not conclusive evidence that the captors were wrong doers. Jennings v. Carson, 4 Cranch, 2; 2 Cond. Rep. 2. 533. The defendant having read a letter from the plaintiff's agent, in answer to a letter from himself, cannot give in evidence a copy of his own letter, without proving it to be a true copy by a witness. Smith et al. v. Carrington, 4 Cranch, 62; 2 Cond. Rep. 26.

is admissible in evidence. Ferguson v. Harwood, 7 Cranch, 408; 2 Cond. Rep. 548.

543. But if the writing produced do not purport to be a record, but a mere transcript of minutes extracted from the docket of the court, it is not admissible in evidence. Ibid.

544. By the laws of North Carolina and Tennessee, a deed for land in Tennessee, executed in North Carolina, by grantors residing there in the year 1794, proved in 1797 by one of the subscribing witnesses, before a judge in North Carolina, and recorded in 1808, in the proper County, in Tennessee, is valid, and may be given in evidence in ejectment. Blackwell v. Patten et al., 7 Cranch, 277; 2 Cond. Rep. 491.

534. To introduce into a cause the copy of any paper, the truth of that paper must be established; and sufficient reasons for the non-pro- 545. A certificate of the governor of the island duction of the original must be given. Ibid. of Martinique, acting within his legitimate au535. Query, Whether, upon a motion to com-thority, in reference to a matter in the island, is mit a person for treason, an affidavit, stating the substance of a letter in possession of the affiant, be admissible evidence? Ex parte Bollman and Swartwout, 4 Cranch, 75; 2 Cond. Rep. 33.

536. The act of Virginia, incorporating the Bank of Alexandria, is a public law, and may be given in evidence, without being specially pleaded. Young v. The Bank of Alexandria, 4 Cranch, 384; 2 Cond. Rep. 150.

537. The official certificate of survey returned by a legal sworn surveyor in Virginia, cannot be invalidated by a particular fact tending to show an impossibility that the survey should have been made in the time intervening between the date of the entry and the date of the certificate of survey. Pollard and Picket v. Dwight et al., 4 Cranch, 421; 2 Cond. Rep. 157.

538. Under the statute of Pennsylvania of 1715, relative to the recording of deeds, if a deed conveyed lands in several counties, and was recorded in one of those counties; an exemplification of it was good evidence as to the lands in the other counties. M Keen v. Delancy's Lessee, 5 Cranch, 22; 2 Cond. Rep. 179.

539. Copies of the proceedings in the vice admiralty court of Jamaica are admissible in evidence, when certified under the seal of the court by the deputy registrar, who is certified by the judge of the court, who is certified by a notary public. Yeaton v. Fry, 5 Cranch, 335; 2 Cond. Rep. 273.

540. Depositions, taken under a commission issued at the instance of the defendant, may be read in evidence by the plaintiff; although the plaintiff had not notice of the time and place of taking the same. Ibid.

541. A bill of lading, stating the property to belong to A and B, is not conclusive evidence, and does not estop A from showing the property to belong to another. The Maryland Ins. Co. v. Ruden's Adm'r, 6 Cranch, 338; 2 Cond. Rep. 392. 542. If a clerk of a court certify at the foot of a paper, purporting to be a record, "that the atoregoing 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

proper evidence. Bingham, Plaintiff in Error, v. Cabot et al., 3 Dall. 19; 1 Cond. Rep. 13.

546. The letters of the agent of congress, resident abroad during the revolutionary war, addressed to that body, relative to the business of his trust; the resolutions of congress on the subject, and certified copies of the same from the office of the secretary of state, are evidence in a suit against the agent, instituted by individuals claiming damages for acts done as a public agent. Ibid.

547. The undertaking declared upon, being for the duty of another, it must, to save it from the statute of frauds and perjuries, be in writing, and wholly so. Clarke v. Russell, 3 Dall. 415; 1 Cond. Rep. 193.

548. It is a good general principle, that written agreements ought to be expounded by themselves. Graves and Barnwall v. The Boston Marine Ins. Co., 2 Cranch. 419; 1 Cond. Rep. 435.

549. No principle is more clearly settled, than that the construction of written evidence is exclusively with the court. Levy v. Gadsby, 3 Cranch, 180; 2 Cond. Rep. 486.

550. The fact, that there is an erasure or interlineation apparent on the face of the deed, does not, of itself, avoid it; to produce this effect, it must be shown to have been made under circumstances that the law does not warrant: parol evidence is let in for this purpose; and the mischief, if any, would equally press on both sides. Speake et al. v. The United States, 9 Cranch, 28; 3 Cond. Rep. 244.

551. The name of an obligor may be erased from a bond, and a new obligor inserted, by consent of all the parties, without making the bond void; such consent may be proved by parol evidence; and it is immaterial whether the consent be given before or after the execution of the deed. Ibid.

552. A copy of a deed from a clerk of the court, without the certificate of the presiding judge, that the attestation of the clerk is in due form, cannot be received as evidence in a suit in equity. Drummond's Adm'r v. Magruder's Trustees, 9 Cranch, 122; 3 Cond. Rep. 303.

553. If the plaintiff in his declaration claims the whole tract, a deed, showing that he has only an undivided interest, cannot be given in

Written Evidence.

evidence. Doe, Lessee of Lewis and Wife, v. M'Farland et al., 9 Cranch, 151; 3 Cond. Rep.

317.

554. Where a deposition has once been read in evidence without opposition, it cannot be afterwards objected to as being irregularly taken. Evans v. Hettich, 7 Wheat. 453; 5 Cond. Rep.

317.

555. No demand of payment, or notice of nonpayment, by a notary public, is necessary in the case of promissory notes. Á protest is, strictly speaking, evidence in the case of foreign bills of exchange only. Nicholls v. Webb, 8 Wheat. 326; 5 Cond. Rep. 451.

556. But it is a principle, that memorandums made by a person, in the ordinary course of his business, of acts which his duty, in such business, requires him to do for others, are, in case of his death, admissible evidence of acts so done. A fortiori, the acts of a public officer are so admissible, though they may not be strictly official, if they are according to general usage, and the ordinary course of his office. Ibid.

557. Therefore, the books of a notary public, proved to have been regularly kept, are admissible in evidence, after his decease, to prove a demand of payment, and notice of nonpayment of a promissory note. Ibid.

558. Under the act of the 26th of May, 1790, ch. 38, copies of the legislative acts of the several states, authenticated by having the seal of the state affixed thereto, are conclusive evidence of such acts in the courts of other states, and of the Union. No other formality is required than the annexation of the seal; and, in the absence of all contrary proof, it must be presumed to have been done by an officer having the custody thereof, and with competent authority to do the act. United States v. Amedy, 11 Wheat. 392; 6 Cond. Rep. 362.

559. When one party to an agreement, signed by the other contracting party, had delivered to such party a copy of the agreement in his own handwriting, but not signed by him, and from the nature of the instrument it was to be fairly presumed the original was in his custody, notice to produce the original paper, in order to give the copy in evidence, is not necessary. Such a copy, when offered to charge the party by whom the same was made, and who, by the tenor of the agreement, was to perform certain acts therein stated, may be considered not as a copy, but as an original, in relation to the obligations of the party giving the copy, and be so given in evi dence. Carroll v. Peake, 1 Peters, 22.

560. Where letters, a part of the evidence in the court below, have become lost or mislaid, every thing is to be presumed to have been contained in them, to support the opinion of the court, in relation to their contents; and the party who denies that the letters authorized the decision of the court upon them, must show, by evidence, their contents. Ibid.

561. The cross-examination of a witness by the opposite party is considered as a waiver of exceptions to the regularity of his deposition. The Mechanics' Bank of Alexandria v. Maria and Louisa Seton, 1 Peters, 307.

562. By the rules of the supreme court, "in all cases of equity and admiralty jurisdiction, no objection shall be allowed to be taken to the admissibility of any deposition, deed, grant, or other exhibit found in the record as evidence, unless objection was taken thereto in the court below, but the same shall otherwise be deemed to have been taken by consent." Ibid.

563. Where the general agent of parties carrying on business in a tan yard, instead of a journal of hides received for the parties from day to day, gave, at considerable intervals, certificates of the total amount of hides received from the last preceding settlement, up to the periods when the certificates bote date; such certificates are equally binding as certificates detailing the se parate transactions of each day, and may be read in evidence to charge the parties, whose agent the person giving the certificate was. Barry v. Foyles, 1 Peters, 316.

564. The authority given by the act of congress of 24th September, 1789, ch. 20, to take depositions of witnesses, in the absence of the opposite party, is in derogation of the rules of the common law, and has always been construed strictly; and, therefore, it is necessary to esta blish, that all the requisites of the law have been complied with, before such testimony is admissible. Bell v. Morrison, 1 Peters, 355.

565. The certificate of the magistrate taking the deposition, is good evidence of the facts stated therein, so as to entitle the deposition to be read to the jury, if all the necessary facts are there sufficiently disclosed. Ibid.

566. It should plainly appear, from the certificate of the magistrate, that all the requisites of the statute have been fully complied with, and no presumption will be admitted to supply any defects in the taking the deposition. Ibid.

567. A letter from a deceased member of a family, stating the pedigree of the family, and sworn by the wife to have been written by her husband, who also swore, in her deposition, that the facts stated in the letter had been frequently mentioned by her husband in his lifetime, is legal evidence, as is also the deposition of the witness, in a question of pedigree. Elliott v. Piersol, í Peters, 337.

568. In a case where a controversy had arisen, or was expected to arise, between parties, concerning the validity of a deed, against which one of the parties claimed, but no controversy was then expected to arise about the heirship; a letter written about the time, stating the pedigree of the claimants, was not considered as excluded, by the rule of law which declares that declarations relating to pedigree, made post litem motam, cannot be given in evidence. Ibid.

569. When parties reduce their contracts to writing, the obligations and rights of each are described by the instrument itself. The safety which is expected from them would be much impaired, if they could be established upon uncertain and vague impressions, made by a conversation introductory to the agreement. Tayloe v. Riggs, 1 Peters, 598.

570. A joint and several bond, where it was not understood to be offered as general evidence

[blocks in formation]

Written Evidence.

as to all the parties to it, but only as to one of the bounds of the tract of land in dispute, dethe obligors, and was connected with a title designated as "Young's four thousand acres ;" and rived from that obligor, was properly permitted attempted to prove, by a witness, that Young, to go to the jury, upon proof of the execution of when he made the entries, had heard of the the bond by that obligor alone; as, under the cir-plaintiffs' claim to the land. The defendants cumstances, it was prima facie evidence of his then offered to introduce as evidence, official execution of the instrument. Conard v. The At- copies of entries made by other and third perlantic Insurance Co., 1 Peters, 451. purpose of proving a general opinion, that the sons since the date of plaintiffs' grant, for the lands contained in the plaintiffs' survey, made under the order of the court, after the commencement of the suit, were vacant at the date of such entries; and to disprove notice to him of the identity of plaintiffs' claim, when he made the entries under which he claimed. This evidence was unquestionably irrelevant. Stringer et al. v. The Lessee of Young et al., 3 Peters, 337.

571. After the plaintiffs had proved, by a surveyor, that most of the lines and streets in "Howard's late Addition to Baltimore Town," had been run by him as the same were marked in a particular plot, upon which was the lot of ground for which the ejectment was brought, they gave the plot so authenticated in evidence. This was contained in a volume in which were also other plots. The defendant then offered in evidence another plot, in the same volume, but gave no evidence to authenticate it, claiming to use the same in evidence, as it was authenti- tiffs' claim, whatever might have been the im576. Entries made subsequent to the plaincated in the same volume in which was that ex-pression under which they were made, could not hibited by the plaintiffs. It was held, that the possibly affect the title held under a prior entry. whole volume was not in evidence; and if the lbid. defendant meant to use any plot in the same, it was his duty to establish it by competent proof of its particular authenticity. Chirac et al. v. Reinecker, 2 Peters, 619.

572. A witness, the clerk of the plaintiff, examined under a commission, stated the payment of a sum of money to have been made by him to the defendant, and that the defendant at his request made an entry in the plaintiff's rough cash book, writing his name at full length, and stating the sum paid to him, not so much for the sake of the receipt, as in order for him, the witness, to become acquainted with his signature, and the way of spelling his name. cessary to produce the book in which the entry It is not newas made, and parol evidence of the payment of the money is legal. It cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact is excluded. Keene v. Mede, 3 Peters, 7. 573. An account stated at the treasury department, which does not arise in the ordinary mode of doing business in that department, can derive no additional validity from being certified under the act of congress. A treasury statement can only be regarded as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In these cases the officers may well certify, for they must have official knowledge of the facts stated. United States v. Buford, 3 Peters, 29.

574. But when moneys come into the hands of an individual, not through the officers of the treasury, or in the regular course of official duty, the books of the treasury do not exhibit the facts, nor can they be known to the officers of the department. In such a case the claim of the United States for money thus in the hands of a third person, must be established, not by a treasury statement, but by the evidence on which that statement was made. Ibid.

575. On a trial in ejectment, the plaintiffs offered in evidence a number of entries of recent date, made by the defendants, within

Richard M. Meade, the name of the party be577. A commission was issued in the name of ing Richard W. Meade. This is a clerical error fect the execution of the commission. Keene v. in making out the commission, and does not afMeade, 3 Peters, 6.

in the execution or return of a commission, re578. It is not known that there is quiring a certificate, in whose hand-writing the any practice depositions returned with the commission were set down. All that the commission requires is, that the commissioners, having reduced the depositions taken by them to writing, should send and seals to the judges of the court out of which them with the commission under their hands the commission issued. But it is immaterial in whose handwriting the depositions are; and it cannot be required that they should certify any immaterial fact. Ibid. 8.

A B, whom they were going to employ as a 579. A certificate by the commissioners, that clerk, had been sworn, admits of no other reasonable interpretation than that A B was the person appointed by them as clerk. Ibid. 9.

mission the form of the oath administered by 580. It is not necessary to return with the comthe commissioners to the witnesses. When the commissioners certify the witnesses were sworn, and the interrogatories annexed to the commission were all put to them, it is presumed that they were sworn and examined as to all their knowledge of the facts. Ibid. 10.

loss of a deed, or other instrument, to authorize 581. What should be considered proof of the the introduction of secondary evidence? Patterson's Lessee v. Winn et al., 5 Peters, 233.

under the great seal of the state of Georgia is, 582. An exemplification of a grant of land per se, evidence; without producing or accounting for the non-production of the original. It is record proof of as high a nature as the original. the government itself, of the validity of its own It is a recognition, in the most solemn form, by grant, under its own common seal; and imports absolute verity, as a matter of record. Ibid.

Written Evidence.

prima facie evidence of the due execution of the indenture; not merely of the signing and sealing, but of the delivery, to justify the court in admitting the deed to be read to the jury; and that in the absence of all controlling evidence, the jury would have been bound to find that the deed was duly executed. Carver v. Astor, 4 Peters, 1.

583. The common law is the law of Georgia, and the rules of evidence belonging to it are in force there, unless so far as they have been modified by statute, or controlled by a settled course of judicial decisions and usage. Upon the present question it does not appear that Georgia has ever established any rules at variance with the common law; though it is not improbable that there may have been, from the 586. The plaintiff, in the ejectment, derived peculiar organization of her judicial department, title under the deed of marriage settlement of some diversity in the application of them in the the 15th of January, 1758, executed by Mary different circuits of that state; acting as they Philipse, who afterwards intermarried with do, independent of each other, and without any Roger Morris, and by Roger Morris and certain common appellate court to supervise their de-trustees named in the same. The premises, before the execution of the deed of marriage

cisions. Ibid.

584. There was, in former times, a technical settlement, were the property of Mary Philipse, distinction existing on this subject. As evidence, such exemplifications of letters patent seem to have been generally deemed admissible; but where in pleading, a profert was made of the letters patent, there, upon the principles of pleading, the original, under the great seal, was required to be produced: for a profert could not be of any copy or exemplification. It was to cure this difficulty that the statutes of 3 Edw. VI., ch. 4, and 13 Eliz., ch. 6, were passed. So too the statute of 10 Ann, ch. 18, makes copies of enrolled deeds of bargain and sale, offered by profert in pleading, evidence. Ibid.'

in fee simple. The defendant claimed title to the same premises under a sale made thereof, as the property of Roger Morris and wife, by certain commissioners acting under the authority of an act of the legislature of New York, passed the 22d of October, 1779, by which the premises were directed to be sold, as the property of Roger Morris and wife, as forfeited; Roger Morris and wife having been declared to be convicted and attainted of adhering to the enemies of the United States. Not only is the recital of the lease in the deed of marriage settlement evidence between the original parties to the same, of the existence of the lease, but between the parties to this case, the recital is conclusive evidence of the same, and supersedes the necessity of introducing any other evidence to establish it. Ibid.

587. The recital of a lease in a deed of release is conclusive evidence upon all persons claiming under the parties in privity of estate. Independently of authority, the court would have arrived at the same conclusion upon principle. Ibid.

588. Leases, like other deeds and grants, may be presumed from long possession, which cannot otherwise be explained; and under such circumstances, a recital in an old deed, of the fact of such a lease having been executed, is certainly presumptive proof, or stronger, in favour of such possession under title, than the naked presumption arising from a mere unexplained possession. Ibid.

585. The plaintiff claimed under a marriage settlement purporting to be executed the 13th of January, 1758, by an indenture of release between Mary Philipse, of the first part, Roger Morris, of the second part, and Johanna Philipse and Beverly Robinson, of the third part. Whereby in consideration of a marriage intended to be solemnized between Roger Morris and Mary Philipse, &c., R. M. and M. P. granted, &c., to J. P. and B. R. "in their actual possession now being, by virtue of a bargain and sale to them thereof made for one whole year, by indenture bearing date the day next before the date of these presents, and by force of the statute for transferring uses into possession, and to their heirs, all those," &c., upon certain trusts therein mentioned. This indenture, signed and sealed by the parties, and attested by the subscribing witnesses to the sealing and delivery thereof, with a certificate of William Livingston, one of the witnesses, and the execution thereof before 589. The legislature incorporated a company, a judge of the supreme court of the state of and declared that the act of incorporation should New York, dated the 5th of April, 1787, and of be considered a public act. Held, the provision the recording thereof in the secretary's office of in the act, that it should be considered a public New York, was offered in evidence by the plain-act, must be regarded in courts; and its enacttiff, and objected to, on the ground that the certificate of the execution was not legal and competent evidence, and did not entitle the plaintiff to read the deed without proof of its execution. 590. As the records of the land office are of A witness was sworn, who proved the hand-great importance to the country, and are kept writing of William Livingston, and of the other subscribing witness, both of whom were dead. The certificate of the judge of the supreme court of New York stated, that William Livingston had sworn before him, that he saw the parties to the deed “sign and seal the indenture, and deliver it as their and each of their voluntary acts and deeds," &c. By the court:-According to the laws of New York, there was sufficient

56 *

ments noticed, without being specially pleaded, as would be necessary if the act were private. Beaty v. The Lessee of Knowler, 4 Peters, 152.

under the official sanction of the government; their contents must always be considered, and they are always received in courts of justice as evidence of the facts stated. Galt et al. v. Galloway et al. 4 Peters, 332.

591. After an assessor of taxes has made the returns of his assessments according to the law under which he acted, and the books for the collection of the taxes have been made up accord

41

Written Evidence.

ing to the returns, and delivered to a collector, it is not necessary to prove the appointment of the assessor. The highest evidence of his appointment is the sanction given to the returns of the assessor. Ronkendorf v. Taylor's Lessee, 4 Peters, 349.

cate under the first head has been literally made in this case, and is a sufficient authentication of the transcript from "the books and proceedings of the treasury," and is a substantial compliance with the requisitions of the statute. Smith v. The United States, 5 Peters, 292.

593. The objection, that this signature of the secretary of the treasury was signed by his chief clerk, seems not to be important. It is the seal which authenticates the transcript, and not the signature of the secretary. He is not required to sign the paper. If the seal be affixed by the auditor, it would be deemed sufficient under the statute. The question, therefore, is not necessarily involved in deciding this point, whether the secretary of the treasury can delegate to another the power to do an official act, which the law devolves on him personally. Ibid.

592. Action of debt on a bond executed by Alpha Kingsley, a paymaster in the army, and by John Smith, T. and another, as his sureties, to the United States. The condition of the obligation was, that Alpha Kingsley, "about to be appointed a district paymaster," &c. "and who will, from time to time, be charged with funds to execute and perform the duties of that station, for which he will be held accountable," &c. shall "well and truly execute the duties of dis trict paymaster, and regularly account for all moneys placed in his hands to carry into effect the object of his appointment." On the trial the plaintiff gave in evidence a duly certified 594. The clerk of the court brought into copy of the bond, and a "transcript from the court, under process, a letter of attorney, and books and proceedings of the treasury depart-left a copy of it, by consent of the plaintiffs and ment, of the account of Alpha Kingsley, late defendants; returning home with the original. district paymaster, in account with the United M., a witness, stated that the clerk of the court States." In this account A. K. was charged showed him the instrument, the signature of with moneys advanced to him for pay, subsis- which he examined, and he believed it to be the tence, and forage, bounties and premiums, and handwriting of the party to it; with whose contingent expenses of the army; and credited handwriting he was acquainted. Another witwith disbursements of the same, for the pur- ness stated that the instrument shown to M. poses for which they were paid to him, and was the original power of attorney. The letter showing a large amount of items suspended and of attorney purported to be delivered and exedisallowed; making a balance due to the United cuted by "James B. Clarke, of the city of New States of forty-eight thousand four hundred and York, and Eleanor his wife," to "Carey L. ninety-two dollars and fifty-three cents. The Clarke, of the city of New York," on the 7th account was thus settled by the third auditor of of October, 1796, in the presence of three witthe treasury, and was duly certified to the second nesses. By the Court :—In the ordinary course comptroller of the treasury, and this balance of legal proceedings, instruments under seal, was by him admitted and certified on the 23d purporting to be executed in the presence of a of April, 1823. The account was further certi- witness, must be proved by the testimony of the fied, "Treasury department, third auditor's subscribing witness, or his absence sufficiently office, 1st of September, 1824: pursuant to an accounted for. When he is dead, or cannot be act to provide for the prompt settlement of pub- found, or is without the jurisdiction of the court, lic accounts, approved 3d of March, 1817, I, or otherwise incapable of being produced; the Peter Hagner, third auditor, &c. do hereby cer- next secondary evidence is the proof of his tify that the foregoing transcripts are true copies handwriting; and that, when proved, affords of the originals, on file in this office." To this prima facie evidence of a due execution of the was annexed a certificate that Peter Hagner was instrument: for it is presumed that he could not the third auditor, &c. "In testimony whereof have subscribed his name to a false attestation. I, William H. Crawford, secretary of the trea- If upon due search and inquiry no one can be sury, have hereunto subscribed my name, and found who can prove his handwriting, no doubt caused to be affixed the seal of this department, resort may then be had to proof of the handat the city of Washington, this 1st of Septem- writing of the party who executed the instru ber, 1824. (Signed) Edward Jones, chief clerk, ment. Such proof may always be produced as for William H. Crawford, secretary of the trea- corroborative evidence of its due and valid exesury.' The seal of the treasury department cution; though it is not, except under the limiwas affixed to the certificate. On the trial the tation stated, primary evidence. Whatever may district court of Missouri instructed the jury, have been the origin of the rule, and in whatthat, "as by the account it appears there are in ever reason it may have been founded, it has it items of debit and credit to Kingsley, as dis- been too long established to be disregarded, or trict paymaster, it furnished evidence of his hav- to justify an inquiry into its original correctness. ing acted as district paymaster, and of his ap- The rule was not complied with in the case at pointment as such." By the Court:-There are bar. The original instrument was not produced two kinds of transcript which the statute author at the trial, nor the subscribing witnesses, or izes the proper officers to certify: first, a trans- their nonproduction was not accounted for. The script from "the books and proceedings of the instrument purports to be an ancient one; but treasury," and secondly, "copies of bonds, con- no evidence was offered, in this stage of the tracts, and other papers, &c. which remain on cause, to connect it with possession under it, so file, and relate to the settlement." The certifi-as to justify its admission as an ancient deed,

« PreviousContinue »