Written Evidence.

775. A certificate by the secretary of state, | may well certify; for they must have official that a person has been recognised by the de-knowledge of the facts stated. United States v. partment of state as a foreign minister, is full Buford, 7 Peters, 29. evidence that he has been authorized and named as such, by the President of the United States. United States v. Benner, Baldwin's C. C. R. 238. 776. The log-book is not proof, per se, of the facts therein stated, except in certain cases provided for by statute. United States v. Gibert, 2 Sumner's C. C. R. 19.

777. Where the public officers are authorized by law to certify to certain facts, their certificates to these facts are competent evidence thereof. Ibid.

778. A party will not be allowed to give oral testimony to the contents or purport of any indictment, verdict, or judgment; as the best evidence is the original paper, or a certified copy. Gass v. Stinson, 2 Sumner's C. C. R. 453.

783. 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.

784. A treasury transcript, produced in evidence by the United States, in an action on a bond for the performance of a contract for the supply of rations to the troops of the United States, contained items of charge which were not objected to by the defendant. The defend779. On a suit brought by the United States ant objected to the following items, as not proved against the representatives of a surety of M. and by the transcript: "February 19th, 1818, for H., contractors to furnish rations to the troops of warrant 1680, favour of Richard Smith, dated Virginia and Maryland, for the year 1802, à let- 27th December, 1817, and 11th February, 1818, ter from the department of war, not authenti- twenty thousand dollars." And on the 11th of cated in the form prescribed by the act of con- April, of the same year, another charge was gress, claiming advances made to the principals, made "for warrant No. 1904, for the payment up to the 6th of January, 1803, is inadmissible of his two drafts, favour of Alexander M'Corin evidence; and no admission of its correct-mick, dated 11th and 17th of March, 1818, for ness, express or implied, by the principals, can bind the surety. Pendleton's Ex'r v. The United States, 2 Brockenb. C. C. R. 75.

ten thousand dollars." And on the 14th of May, of the same year, a charge was made "for warrant No. 2038, being in part for a bill of exchange in favour of Richard Smith, for twenty thousand dollars, twelve thousand eight hundred and thirty-two dollars and seventy-eight cents." And one other warrant was charged, June 22d, for a bill of exchange in favour of Richard Smith, dated June 22d, 1810, four thousand dollars; and also a warrant to Richard Smith, per order, for eight thousand dollars." These items, the circuit court instructed the jury, were not sufficiently proved by being charged in the ac

780. Where process is to be served on the thing itself, which is the subject of controversy, and where the mere possession of the thing itself, by the service of that process, and making proclamation, authorizes the court to decide" upon it, without notice to any individual whatever; it is a proceeding in rem, to which all the world are parties: and in every such case, the decree is conclusive evidence against all parties interested, though not brought before the court by process. Mankin v. Chandler & Co., 2 Brock-count, and certified under the act of congress.

enb. C. C. R. 125.

By the court:-The officers of the treasury may 781. Nothing done at the treasury, which did well certify facts which come under their official not fall within the scope of the authority of the notice, but they cannot certify those which do accounting officers, in settling accounts, can be not come within their own knowledge. The received in evidence. In the case of the United execution of bills of exchange and orders for States v. Buford, 7 Peters, 29, it was held by the money on the treasury, though they may be supreme court, that an account stated at the "connected with the settlement of an account," treasury department, which does not arise in the cannot be officially known to the accounting ordinary mode of doing business in that depart- officers. In such cases, however, provision has ment, can derive no additional validity from been made by law, by which such instruments being certified under the act of congress. Such are made evidence, without proof of the handstatements at the treasury can only be regarded writing of the drawer. The act of congress of as establishing items for moneys disbursed the 3d of March, 1797, makes all copies of pathrough the ordinary channels of the depart-pers relating to the settlement of accounts at the ment, when the transactions are shown by its books. Cox and Dick v. The United States, 6 Peters, 202.

782. 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, when the transactions are shown by its books. In these cases, the officers

treasury, properly certified, when produced in court annexed to the transcript, of equal validity with the originals. Under this provision, had copies of the bills of exchange and orders, on which these items were paid to Smith and M'Cormick, been duly certified and annexed to the transcript, the same effect must have been given to them by the circuit court, as if the original had been produced and proved. And every transcript of accounts from the treasury, which contains items of payments made to others, on the authority of the person charged, should have

Written Evidence.

786. The defendant, in an action by the United States, where a treasury transcript is produced in evidence by the plaintiffs, is entitled to the credits given to him in the account; and in claiming those credits, he does not waive any objection to the items on the debit side of the account. He is unquestionably entitled to the evidence of the decision of the treasury officers upon his vouchers, without reference to the charges made against him. And he may avail himself of that decision, without in any degree restricting his right to object to any improper charge. The credits were allowed the defendant on the vouchers alone, and without reference to the particular items of demand which the government might have against him. And the debits, as well as the credits, must be estab-who offered this evidence stated, that he offered lished on distinct and legal evidence. Ibid.

Written Evidence.

to charge the defendant or his intestate for any | first. By the Court:-The correctness of the sums therein contained, further than the mere principle laid down by the circuit court in this payment of money from the treasury to the said instruction, has been recognised by the supreme intestate, or to his authorized agent." By the court, in a case between the same parties, at Court: The items embraced by this instruction the present term. Ibid. were charges made against O. for the acts of certain persons, alleged to be his agents, without annexing to the transcript copies of any papers showing their agency, or offering any proof that they acted under the authority of O.. the circuit court, therefore, properly instructed the jury, that the transcript, per se, did not prove

these items. Ibid.

795. The provisions of the act of 3d March, 1825, substitute a certified statement of settled account, as evidence in suits against depaty postmasters, in lieu of the certified copy of the account current required by the provisions of the act of 30th April, 1810. Postmaster-General v. Rice, Gilpin's D. C. R. 562.

796. The auditor's report of a balance due from a person accountable for public money, is a guide to the comptroller as to the amount to be sued for, but not evidence for the court of the debt. United States v. Patterson, Gilpin's D. C. R. 47.

792. The plaintiffs then proved by R. S. that he received, as the agent of O., six thousand three hundred and fifty dollars and ninety-nine cents, on warrant No. 5471, under the contract, and that the same was applied to the credit of 797. It appeared that the defendant offered O. in the Bank of the United States at Washing- to read in evidence certain passages from a ton, of which payment the witness believed Ŏ. public document mentioned in the bill of exhad notice. The counsel for the plaintiffs stated, ceptions. The plaintiffs' counsel consented to that they confined their claim to the above item, its being read as the defendant's evidence; and which was the first one charged in the treasury after the same was read, the plaintiffs' counsel account exhibited. The counsel for the defend- requested the court to instruct the jury, that the ant then moved the court to instruct the jury, conversation of the defendant with Mr. Dickens that this account, as also the preceding one and Mr. M'Lean, read from the executive docuoffered in evidence by the plaintiffs, was evi- ment, was not evidence to the jury of the facts dence for the defendants, of the items of credits stated in such conversation; which instruction contained in either, and that in claiming them the court refused to give. The Court said:he did not admit the debits; which instruction The entire document referred to is not set out was given by the court, and to which an excep- in the bill of exceptions; and from what is tion was taken. By the Court: This instruction involves the same question which has already been decided between the same parties, at the present term. There was no error in giving the instruction. Ibid.

793. In the further progress of the trial, the plaintiffs offered to withdraw from the jury the said two accounts mentioned in the preceding exception, and all the evidence connected with said accounts, to which the defendant's counsel objected, and the court refused the motion. By the Court:-A treasury account which contains credits as well as debits, is evidence for the defendant as well as the government; and unless there be an abandonment of the suit by the counsel for the government, it has no right to withdraw from the jury any part of the credits relied on by the defendant. Ibid.

794. The circuit court, on the prayer of the defendant, instructed the jury, that the transcript from the books and proceedings of the treasury, can only be regarded as establishing such of the items of debit, in the account stated in the said transcript, as are for moneys disbursed through the ordinary channels of the treasury department, where the transactions are shown by its books, and where the officers of the department must have had official knowledge of the facts stated: but that the transcript is evidence for the defendant of the full amount of the credits therein stated; and that, by relying on the said transcript, as evidence of such credits, the defendant does not admit the correctness of any of the debits in the said account, of which the transcript is not, per se, evidence; and that the said transcript is not, per se, evidence of any of the items of debit therein stated, except the

stated, no conversation of the character objected to appears. But the evidence was admitted by consent. The plaintiffs were entitled to have the whole document read, and it was all in evidence before the court and jury. But the objection, on the ground that some of the facts stated were only hearsay evidence, fails. The document, so far as it appears on the bill of exceptions, contains no such conversation. This instruction was, therefore, properly refused. The United States v. Lane, 12 Peters, 1.

798. The admissions of a defendant, that he is indebted to the plaintiff on promissory notes, when proved by competent testimony, are sufficient evidence of the transfer of negotiable paper, without proof of the handwriting of the payor. Whether the evidence was legally competent for that purpose, or not, is a question for the court, and not for the jury, in the absence of all contradictory testimony. M'Neil v. Holbrook, 12 Peters, 84.

799. By the act of the legislature of Georgia, of 15th December, 1810, the assignment or endorsement of a promissory note is made sufficient evidence thereof, without the necessity of proving the handwriting of the assignor. The judiciary act of 1789 declares that the laws of the several states, except when the constitution, treaties, or statutes of the United States require otherwise, are to be rules of decision in the courts of the United States, in trials at common law, where they apply. The court does not perceive any sufficient reason for construing this act of congress, so as to exclude from its provisions those statutes of the several states which prescribe rules of evidence in civil cases, in trials at common law. Ibid.

Written Evidence.

800. Evidence will be legal, as rebutting tes-ceedings of a foreign court, or of the proceedtimony, or to repel an imputation or charge of fraud, which would not be admissible as original evidence. Zacharie and Wife v. Franklin, 12 Peters, 151.

801. It is error, on the trial of a writ of right, before the grand assize, to prevent the introduction of written evidence, because, in a trial of another cause, between the demandant offering the testimony, and a defendant claiming in opposition to the demandant, under the same title with that of the defendant before the grand assize, the court had frequently examined the title set up by the written evidence offered, and had become fully cognizant of it; and had, in that trial, at the suit of the demandant, in which it had been produced, decided that it in nowise tended to establish a legal title to the land in controversy, in the demandant. Bradstreet v. Thomas, 12 Peters, 174.

ings of an officer authorized to take depositions. It is not connected in any way with the func tions of the minister. His certificate and seal could only authenticate those acts which are appropriate to his office. Stein v. Bowman, 13 Peters, 209.

806. The only mode in which depositions can be taken in a foreign country, is under a commission. Ibid.

807. A deed was executed in Glasgow, Scotland, by which land in Ohio, which had been patented by the United States to David Buchanan, was conveyed to Walter Sterling. The deed recited that it was made in pursuance of a decree of the circuit court of the United States for the district of Virginia. No exemplification of the decree was offered in support of the deed. The court held, that as Buchanan was the patentee of the land, although he made the deed in pursuance of the decree of the circuit court of Virginia, the decree could add nothing

it was wholly unnecessary to produce an exemplification of the decree. The deed was good without the decree. Games et al. v. Dunn's`Lessee, 14 Peters, 322.

802. The demandant had a right to place before the assize all the evidence which she thought might tend to establish her right of pro-to the validity of the conveyance, and therefore perty, which had been ruled to be competent evidence in another suit, against the competency of which, nothing was objected in this suit; and the assize had a right to have such evidence before them, that they might apply to it the instructions of the court, as the law of the case, without which they could not do it. Ibid.

803. There is a safer repository of the adjudications of courts than the remembrance of judges; and their declaration of them is no proof of their existence. Ibid.

804. In a case in equity, brought by appeal from the court of appeals of East Florida, the contents of certain documents which contained the agreements of the parties, were stated to set out in the bill. The contracts were not proved in the cause by testimony, nor was this new production accounted for by secondary evidence. The decrees of the Florida courts were reversed, and the cause remanded to the court of appeals, to allow the pleadings to be amended, and the documents referred to, or the contents of the same to be duly authenticated and proved, &c. Levy v. Arredondo, 12 Peters, 218.

808. The possession of a deed regularly executed, is prima facie evidence of its delivery. Under ordinary circumstances, no other evidence of the delivery of a deed than the possession of it by the person claiming under it, is required. Ibid.

809. It is certainly true, as a general rule, that the interpretation of written instruments properly belongs to the court, and not to the jury. But there certainly are cases in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury, for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects and intentions and agreements of the parties are often to be arrived at only by allusions to circumstances which are but imperfectly developed. Brown v. M'Gran, 14 Peters, 479.

805. Certain German documents were offered in evidence by the plaintiff in the district court of Louisiana, for the purpose of using such parts 810. Whenever the rights of a party, founded of them as contained depositions which related upon a deed, are dependent on the terms and to the pedigree of the plaintiff, which were conditions of that deed, the instrument thus overruled by the district court, on the ground creating and defining those rights must be rethat they were not duly authenticated. By the sorted to; and must regulate, moreover, the Court:In the case of Church v. Hubbart, modes by which they are to be inforced at law. 2 Cranch, 187, this court held that a certificate These identical rights cannot be claimed as beof a consul, under his consular seal, is not a suf-ing derived from a different and inferior source. ficient authentication of a foreign law to make it evidence; it not being one of his consular functions to grant such certificates. And also, that the proceedings of a foreign court, under the seal of a person who styles himself the Secretary of Foreign Affairs in Portugal, is not evidence. On the principles of this case, the circuit court very properly rejected the depositions offered. The certificates and seal of the minister resident for Great Britain, from Hanover, is not a proper authentication of the pro

If the deed be in force, all who claim by its provisions must resort to it. Fresh v. Gibson, 16 Peters, 327.

811. Plates of surveys made by the surveyorgeneral of Florida, while Florida was part of the dominions of Spain, were offered in evidence by the claimant of land, in the superior court of East Florida, and were read without objection by the district attorney of the United States. Held, that an objection to them, as evidence, cannot prevail in the supreme court, cn an ap

Parol Evidence.

826. Where a check was drawn by a person who was the cashier of an incorporated bank, and it appeared doubtful upon the face of the 814. But entries made by a clerk, who is de-instrument whether it was an official or a priceased, are evidence. The original book, how-vate act, parol evidence was admitted to show ever, must be produced. Ibid. that it was an official act. Mechanics' Bank of Alexandria v. The Bank of Columbia, 5 Wheat. 326; 4 Cond. Rep. 666.

821. The usage of trade may be proved by 831. The rule as to the admission of secondary parol, although such usage originated in a law or evidence does not require the strongest possible edict of the government of the country. Livings- evidence of the matter in dispute; but only ton & Gilchrist v. The Maryland Insurance Com-that no evidence shall be given, which, from the pany, 6 Cranch, 274; 2 Cond. Rep. 370.