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EVIDENCE.

Written Evidence.

without further proof. The agreement of the parties dispensed with the production of the original instrument, but not with the ordinary proof of the due execution of the original, in the same manner as if the original were present. Lessee of Clarke et al. v. Courtney et al. 5 Peters, 319.

595. Foreign laws should be proved: the court cannot be charged with knowledge of foreign laws. Strother v. Lucas, 6 Peters, 763. 596. Papers translated from a foreign language, respecting the transactions of foreign officers, with whose powers and authorities the court are not well acquainted, containing uncertain and incomplete references to things well understood by the parties, but not understood by the court, should be carefully examined, before it pronounces that an officer holding a high place of trust and confidence, has exceeded his authority. United States v. Percheman, 7 Peters,

51.

597. On general principles of law, a copy of a paper given by a public officer, whose duty it is to keep the originals, ought to be received in evidence. Ibid.

598. Special circumstances, which were considered as exempting the evidence contained in a book, called the "Picture of Cincinnati," of the date of the survey of the city, and laying out lots in parts of the same, from the common rule, which justified its admission. Morris v. The Lessee of Harmer, 7 Peters, 554.

be enrolled in the record of the same county
where the lands, tenements, or hereditaments
conveyed by such deed or conveyance do lie, or
in the provincial court, as the case may be.
The courts of Maryland are understood to have
be given in evidence. Dick et al. v. Balch et al.,
decided, that copies of deeds thus enrolled may
8 Peters, 30.

602. Copies of deeds that are not required to
be enrolled, cannot be admitted in evidence;
and, by
but deeds of bargain and sale are, by the laws
of the state, required to be enrolled;
the uniform tenor of the decisions of the courts
of the state, exemplifications of records of deeds
of bargain and sale are as good and competent
603. The receipts of the contractor, for moneys
evidence as the originals themselves. Ibid.
paid to him by the United States, are prima facie
evidence that the money was received by him
in an action on the bond given with sureties for
on account of the contract, and it is incumbent,
the performance of the contract, for the parties
to show that the money was not paid on account
are not bound to show that it was so stated by
of the contract as stated in the receipts, but they
mistake or design on the part of the government
and the contractor, and intended to be applicable
to some other contract. United States v. Jones,
8 Peters, 399.

604. The attorney in fact residing in New more, of the will of a person who left certain Orleans, of certain executrixes residing in Baltislaves in New Orleans, sold the slaves without conforming to the provisions of the law of Louis

599. The plat of the lots in the city of Cincinnati, which had been recorded, and on which the streets and alleys in the same were desig-iana, and received a part of the proceeds of the nated, and which had been generally recognised and used in the surveys of the lots laid down in the same, was properly admitted in evidence. Ibid.

sale, but having failed, did not pay over the
same to his constituents. The heirs of the tes-
slaves in a court of Louisiana, and by a decree
tatrix instituted a suit for the recovery of the
of the court, they were adjudged to them. The
purchaser instituted a suit in the circuit court
of the district of Maryland, against the execu-
trixes, to recover the amount paid for the slaves,
and his expenses, and offered the record of the
proceedings in the suit in Louisiana in evidence,
which was objected to by the defendants. By
the Court:-The suit and the proceedings were
inter alios acta, and were no further evidence
than to show a recovery by a paramount title.
Owings v. Hull, 9 Peters, 607.

600. The depositions of several witnesses, clerks in the counting-house of the plaintiffs, were admitted on the trial of the cause, in which the witnesses stated that they knew that a letter of credit was considered by the plaintiffs as covering any balance due by C. H. to them for advances from time to time, to the amount of eight thousand dollars; that advances were made, and moneys paid by them on account of C. H., from the time of receiving the said letter, 605. The book called the Land Laws of Ohio, predicated on the letter always protecting the plaintiffs to the amount of eight thousand dol lars; and that it was considered in the counting-published by the authority of a law of that state, house as a continuing letter of credit, and so acted upon by the plaintiffs. Held, that this evidence was rightly admitted to establish that credit had been given to C. H., on the faith of that, it, from time to time, and that it was treated by the plaintiffs as a continuing guaranty; so if in point of law it was entitled to that character, the plaintiffs' claim might not be open to the suggestion that no such advances, acceptances, or endorsements had been made upon the credit of it. The evidence was not open to the objection, that it was an attempt by parol evidence to explain a written contract. Douglass et al. v. Reynolds et al., 7 Peters, 113.

is evidence in the circuit court of the United States of an application made in 1787, for the purchase of a tract of land on the Ohio river, between the mouths of the Great and Little ciates, and of the various acts of congress relaMiami, by John Cleves Symmes and his assotive to that application and purchase, and of a patent from the president of the United States, pursuant to an act of congress, granting to Symmes and his associates, the land described therein; and the production of any other evidence of title in Symmes was unnecessary. 606. It would be productive of infinite inconHinde et al. v. Vattier et al., 5 Peters, 396. 601. The acts of 1715, and of 1766, of Mary-venience to settlers and all persons interested land, require that all conveyances of land shall in the lands embraced in this patent, if its pub

Written Evidence.

lication among the laws of the state, and the admission of the book of laws as evidence of the grant, after its solemn adoption by the supreme court of Ohio as a settled rule of property, should be questioned in the courts of the United States. Ibid.

607. The entries on the register of burials of Christ Church, St. Peter's and St. James's, in Philadelphia, and the entries of the death of the members of the family in a family bible, are evidence in an action for the recovery of land in Kentucky, to prove the period of the decease of the person named therein. Lewis et al. v. Marshall et al., 5 Peters, 470.

under such circumstances, it is not necessary to issue a subpoena. It would be a useless act the witness could not be compelled to attend personally. Ibid.

612. A paper certified by the secretary of state of Rhode Island, and by the governor, under the seal of the state, stating that certain laws were passed by the legislature of that state, and that certain matters were cognizable by the general assembly of Rhode Island, and of the practice of the assembly of Rhode Island in cases of a particular description; is not evidence on the argument of a cause before the supreme court. Usage and custom should be proved in the circuit court on the trial of the case in which it may be referred to; and evidence of the same is not admissible in the su

and others v. Wilkinson, 6 Peters, 317.

608. In the caption of a deposition taken before the mayor of Norfolk, to be used in a cause depending, and afterwards tried in the circuit court of the United States held in Balti-preme court, if not found in the record. Leland more, the mayor stated the witness "to be a resident in Norfolk," and in his certificate he states, that the reason for taking the deposition is, "that the witness lives at a greater distance than one hundred miles from the place of trial, to wit, in the borough of Norfolk." It was sufficiently shown by this certificate, at least prima facie, that the witness lived at a greater distance than one hundred miles from the place of trial. The Patapsco Ins. Co. v. Southgate et al., 5 Peters,

604.

613. A certificate from the secretary of state of the state of Rhode Island, also certified by the governor under the seal of the state, was offered to prove that certain proceedings have been had at different times in the legislature of Rhode Island on private petitions, relative to the administration and sale of the estates of deceased persons for the payment of their debts; and that there have been certain usages and proceedings in the legislature of that state in regard to the 609. The provisions of the thirteenth section same. By the court:-The public laws of a of the act of congress, entitled "an act to estab-state may, without question, be read in the sulish the judicial courts of the United States," which relate to the taking of depositions of witnesses, whose testimony shall be necessary in any civil cause depending in any district in the courts of the United States, who reside at a greater distance than one hundred miles from the place of trial, are not confined to depositions taken within the district where the court is held. Ibid.

610. In all cases where, under the authority of the act of congress, a deposition of a witness is taken de bene esse, except where the witness lives at a greater distance from the place of trial than one hundred miles, it is incumbent on the party for whom the deposition is taken, to show that the disability of the witness to attend continues; the disability being supposed temporary, and the only impediment to a compulsory attendThe act declares expressly, that unless this disability shall be made to appear on the trial, such deposition shall not be admitted or used on the trial. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than one hundred miles; he being considered beyond a compulsory attendance. Ibid.

ance.

611. The deposition of a witness living beyond one hundred miles from the place of trial, may not always be absolute; for the party against whom it is to be used may prove the witness has removed within the reach of a subpoena, after the deposition was taken; and if that fact was known to the party, he would be bound to procure his personal attendance. The burden of proving this would rest upon the party opposing the admission of the deposition in evidence. For a witness whose deposition is taken

preme court, and the exercise of any authority which they contain may be derived historically from them. But private laws, and special proceedings of this character, are governed by a different rule. They are matters of fact, to be proved as such in the ordinary manner. supreme court cannot go into an inquiry as to the existence of such facts upon a writ of error, if they are not found in the record. lbid.

The.

614. An ejectment for a tract of land was tried upwards of seventy years after the date of a lease, recited to have been executed in a deed of release of the premises in dispute, but which lease was not produced on the trial. Under these circumstances, the lapse of time would alone be sufficient to justify a presumption of the due execution and loss of the lease, proper to be left to the jury. Crane v. Morris' Lessee, 6 Peters, 360.

615. The solemn probate of a deed by a wit ness upon oath before a magistrate, for the purpose of having it recorded, and the certificate of the magistrate of its due probate upon such testimony, are certainly entitled to more weight as evidence, than the mere unexplained proof of the handwriting of a witness after his death. The one affords only a presumption of the due execution of the deed, from the mere fact that the signature of the witness is to the attestation clause; the other is a deliberate affirmation by the witness, upon oath, before a competent tribunal, of the material facts to prove the execution. Ibid.

616. By the laws of Louisiana, copies from the notarial register of deeds and bills of sale, certified under the notarial seal of the notary, are evidence; the original register always re

Written Evidence.

maining in the office of the notary. By the court:The circuit court was bound to take notice of the laws of Louisiana, and the copy being evidence by these laws, was legal evidence in a suit instituted before the circuit court in another state. Owings v. Hull, 9 Peters,

607.

617. A copy of the letters testamentary granted by the parish court of New Orleans, was proved by the oath of the clerk and register of the court of probates to be a true copy of the original, and that he could not send the original, which is on file in the court of probates. By the court: This is the best evidence which the nature of the case admits of. Ibid.

question whether it applies to cases of secondary evidence, where the original is lost, and the record of it is not deemed in law as high as the original, or when the copy of a copy is the highest proof in existence. (In this case, the power of attorney was recorded in Richmond county, and the land in controversy was in Franklin county): Held, that this is not the case of a mere copy of a copy verified as such; but it is the case of a second copy verified as a true copy of the original. Ibid.

622. If a certified copy of a duly recorded deed is evidence, it is not necessary to produce the original book in which the same was recorded. Ibid.

618. The letters and accounts of J. K. West, 623. The plaintiffs instituted a suit in the cirthe attorney in fact of the executrixes, trans-cuit court of the United States for the district of mitted by him to Mr. Winchester, their attorney in fact, were legal evidence in the circuit court. Ibid.

Maryland, stating themselves to be citizens of the state of Maryland, and that the defendant was an alien, and a subject of the king of Spain. The defendant pleaded in abatement, that one of the plaintiffs, Domingo D'Arbel, was not a citizen of Maryland, nor of any of the United States, but was an alien, and a subject of the king of Spain. Upon the trial of the issue joined on this plea, the plaintiffs produced and gave in evidence, under the decision of the circuit court, a passport granted by the secretary of state of the United States, stating D'Arbel to be a citizen of the United States: Held, that the passport was not legal evidence to establish the fact of the citizenship of the person in whose favour it was given. Urtetiqui v. D'Arbel et al., 9 Peters, 692.

619. The deputy clerk of the Richmond county court, who, as such, had recorded the original power of attorney, swore that he was well acquainted with Abram Jones, esquire, and his handwriting, during the year 1793, &c. That the record of the power of attorney from B. Jones to T. Smith, made by himself, while clerk of the court, is a copy of an original power of attorney, which he believes to have been genuine, for that the official signature of Abram Jones must have induced him to commit the same to record; and that the copy of that said power of attorney, the one offered in evidence, had been compared with the record of the original made by himself, and is a true copy. Upon 624. The defendant, in the circuit court, this evidence, the plaintiff offered the copy in offered in evidence the record, duly certified, of evidence, and it was admitted by the circuit the district court of the United States for the court: Held, that there was no error in ad- district of Louisiana, containing the proceedings mitting this evidence. Winn v. Patterson, 9 Pe-in a suit which had been originally instituted ters, 663.

620. At the time of the admission of this evidence, it was forty years old. Abram Jones, the subscribing witness to the original, was long since dead, and it did not appear that the other witness was alive. The original power did not exist, so that no evidence of the handwriting of the other witness could be given. After the lapse of thirty years from the execution of a deed, the witnesses are presumed to be dead; and this is the common ground for dispensing with the production of them, without any search for them, or proof of their death, when the original deed is before the court for proof. This rule applies not only to grants of lands, but to all other deeds where the instrument comes from the custody of the proper party claiming under it, or entitled to its custody. Ibid.

against D'Arbel, in a state court of Louisiana: and on his affidavit that he was an alien, and a subject of the King of Spain, had been removed for trial to the district court, under the authority of the act of congress, authorizing such a removal of a suit against an alien into a court of the United States. The record was introduced, as containing a copy of the affidavit of D'Arbel in the state court, upon which the case was removed. Held, that this was legal evidence. Ibid.

625. Copies of records of the proceedings in a state court, which showed that a suit was still pending in the court where the copy was certified, but which were given at a period anterior to the trial of the case in which they were offered in evidence, and in the interval, the case from the course of the court in which it was depending, might have been decided, were allowed to be read in evidence; from which the jury might infer, the suit was depending and undetermined. Hagan v. Lucas, 10 Peters, 400.

621. The rule is admitted that a copy of a copy is not evidence. This rule properly applies to cases where the copy is taken from a copy, the original being still in existence, and capable of being compared with it; for then it is a se- 626. The army registers, published by the cond remove from the original; or when it is a adjutant and inspector general of the army, concopy of a copy of a record, the record being in taining the general regulations of the army, existence, and deemed by law as high evidence which are delivered by the departments to the as the original; for then it is also a second remove officers of the army, are not evidence to estabfrom the original. But, it is a quite different | lish the pay and emoluments of officers in the

Written Evidence.

service. These are fixed and determined by acts | deavouring, together with the assignor, to enof congress. Wetmore v. The United States, 10 Peters, 647.

627. The registers are compilations issued and published to the army by the direction of the secretary at war, in the exercise of his official authority; and when authenticated by him, would be evidence of the facts, strictly so, they may contain; such as the names of officers, date of commissions, promotions, resignations, and regimental rank, brevet and other rank, or the department of the army to which officers belong; but from none of these can an inference be drawn by a jury to establish the pay and emoluments of officers; as they are provided for by law, and must be determined by the court when they are doubtful, and the subject of dispute in a suit between an officer and the United States. Nor can such registers be evidence of the correctness of any classification of the officers of departments into a general staff of the army: for though they are probably correct, being prepared by persons whose professional duty it is to be well informed upon the subject, and who, from their familiarity with military science and the general arrangement of armies, are supposed to be expert interpreters of the acts of congress for the organization of our army; still, what officers are of the staff, or general staff, depends upon acts of congress, which are to be expounded by the courts, where an officer claims a judicial determination of his rights as to pay and emoluments, from his having ranged as belonging to the staff. Ibid.

628. A translation by the secretary of the board of land commissioners of Florida, whose duty it was to translate Spanish documents given in evidence before the board of commissioners, of a certified copy of a Spanish grant of land in Florida, which had been produced to the board, was properly admitted as evidence of the grant: satisfactory proof having been given to the court, that the original grant could not be found in the records of East Florida; and that this was the best evidenee, from the nature of the case, which could be given of the existence of the original paper, lost or destroyed. United States v. Delaspine's Heirs et al. 12 Peters, 654.

629. If it appear on the face of a deposition taken, under the act of congress, that the officer taking the same was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer. Ruggles v. Bucknor, Paine's C. C. R. 358.

630. Transcripts of accounts in the treasury department are written documents, and their construction is matter of law. United States v. Willard, Paine's C. C. R. 539.

force the same right that was established in a former suit in favour of the assignor. lbid.

633. A deed may be given in evidence, though it was acknowledged after the suit brought. Ibid.

634. An affidavit made in connection with a warrant and survey, and not certified as an office paper, in the land office, cannot be given in evidence. Ibid.

635. A letter from one of the general assignees of the borrower, to the captain of his vessel, respecting the manifest of his homeward cargo, cannot be given in evidence against the plaintiff, the lender of the money on respondentia. Atlantic Ins. Co. v. Conard, 4 Wash. C. C. R. 662.

636. The circuit court wonld not admit in evidence the correspondence between one of the obligors in the respondentia bond, and one of the directors of the insurance company, the plaintiff in the suit, and with the borrower, impeaching the respondentia bond. Ibid.

637. Where the judgment of another court forms the necessary part of the evidence, a mere copy of the docket entries, without even the substantial form of the judgment, is not sufficient evidence. Levering v. Dayton, 4 Wash. C. C. R. 698.

638. The plaintiff's or defendant's ledger proved to contain original entries, is not evidence. Ibid.

639. The letters of an agent to his principal, cannot be read in evidence against a third person. United States v. Barker's Administratrix, 4 Wash. C. C. R. 464.

640. The magistrate's certificates of the acknowledgment of a deed, is sufficient to admit it in evidence, though it be not under seal. This is under the statute of Pennsylvania. Lessee of Fellows v. Pedrick, 4 Wash. C. C. R. 477.

641. The record of a judgment in ejectment brought by a person, under whom the lessor of the plaintiff claims, in favour of the defendant, was admitted in evidence, but not as conclusive. Ibid..

642. To entitle a party to give a sheriff's deed in evidence, a copy of the record of the judgment, under which the sale was made, must be produced. Lessee of Lanning v. London, 4 Wash. C. C. R. 513.

643. A copy of the letter from the witness himself, defendant's agent, to the plaintiff's agent, acknowledged by him to be a true copy, cannot be read in evidence. The original, if produced, could not; as the facts contained in it would be more properly proved by the witness who wrote the letter. Vasse v. Mifflin, 4 Wash. C. C. R. 519.

631. A judgment or decree of a court can be used as evidence in another suit, only as against 644. A deposition taken under a rule of court, parties and privies: and if in the second suit cannot be read in case of the inability of the there are new parties against whom the judg-witness to attend, unless such inability be shown, ment could not have been used, had it been ad- or that the witness lives beyond the reach of a verse, they cannot introduce it in their favour. subpoena. Read v. Bertrand, 4 Wash. C. C. R. Baring v. Fanning, Paine's C. C. R. 549.

632. It makes no difference that the new parties, as assignees of a chose in action, are en

558.

645. A transcript of an imperfect record of a judgment and execution, offered in evidence

EVIDENCE.

Written Evidence.

to support a sale and sheriff's deed made under | part of the defendants. Azuria et al. v. The it, admitted. Lessee of Lanning v. Dolph et al. Insurance Co. of Pennsylvania, 3 Wash. C. C. R. 4 Wash. C. C. R. 624.

646. A connected map of a number of surveys, which had been recorded in the county, is evidence, accompanied with the explanations of the surveyors, without producing the separate Bache, 3 Wash. C. C. R. 199. surveys. Jones v. 647. A genealogical table, certified under the seal of a foreign officer, is not evidence. Banert and Wife's Lessee v. Day, 3 Wash. C. C. R. 243.

648. The contents of a receipt said to have been signed by one of the defendants, or the manner of signing it, cannot be given in evidence; the receipt should be produced. Romayne v. Duane, 3 Wash. C. C. R. 246.

649. The certificate of the register of the treasury department, under his hand, that certain receipts, of which copies are annexed, are on file in his office, with a certificate of the secretary of the treasury, under the seal of the department, that he is the register; is not evidence. It must appear not only that the officer who gives the certificate has the custody of the papers, but that he is authorized by law to certify them; and the register is not so authorized sworn copy should have been produced. Bleecker v. Bond, 3 Wash. C. C. R. 529.

a

650. The letters of the plaintiffs to the secretary of state, containing applications for a patent, and specifications, certified under the seal of that department, as papers remaining in that office, were properly admissible in evidence. Pettibone v. Derringer, 4 Wash. C. C. R. 215.

177.

656. Debt on bond, conditioned for the delivery of a good and lawful title to land in Virginia, to which the defendant pleaded performThe surveyors of the county, who offiance. cially know that certain lands are covered with prior surveys, are competent witnesses to prove Jones v. Bache, 3 Wash. C. C. R. the same.

199.

657. If a party who gives a notice to produce papers, afterwards waive reading them in evidence, he may do so; and the papers are not made evidence by the notice calling on the opposite party for them. Willings et al. v. Consequa, Peters' C. C. R. 301.

658. A deed executed by administrators, under an order of the orphans' court, cannot be read in evidence without producing the order of the court. Lessee of Hartshorn et al. v. Wright et al., Peters' C. C. R. 64.

659. An account sales of a part of a cargo, in which the party who offers it had no interest, cannot be given in evidence in an action in which the separate sales of the plaintiff's interest have been given in evidence; it not being intended to impeach the sales of the plaintiff's property. Gilpins v. Consequa, Peters' C. C. R. 85.

660. The examination by supercargoes of the muster chests of tea, and their letters to the plaintiffs, expressive of their satisfaction with the quality of teas delivered by the defendant, are not conclusive evidence of their quality; if, in fact, the teas were not of the quality represented. Ibid.

651. Upon a plea of nul tiel record to debt, on a judgment in another state, the seal of the 661. A deed more than thirty years old, court must be annexed to the record itself; and it is not sufficient that it is annexed to the certi- proved to have been in the possession of the lesficate of the judge of the court, authenticating sors of the plaintiffs in ejectment, and actually the attestation of the clerk who certifies the re-asserted by them as the ground of their title in cord. Turner v. Waddington, 3 Wash. C. C. R.

126.

652. The certificate of the collector of Havana, under the seal of his office, of the arrival of the vessel at that place for water, and that before permission to take it on board was given to the captain, he was obliged to stipulate that the cargo should be landed, the articles composing it being wanted for the use of the place; is not evidence, as the deposition of the collector to these facts should have been taken. Wood et al. v. The United States Ins. Co., 3 Wash. C. C. R. 201.

653. The entry in the books of the land office, that the balance of the purchase money was paid by the person "to whom the patent had issued," is evidence that a patent did issue, although the patent is not produced. Willis's Lessee v. Bucher et al., 3 Wash. C. C. R. 369.

654. The register of a vessel is not, per se, evidence of ownership. Bas et al. v. Steele, 3 Wash. C. C. R. 381.

655. The invoice stated in the record of the condemnation of the vessel insured, to have been found on board at the time of the capture, and the answers of the mate to the standing interrogatories, were admitted in evidence on the

a chancery suit; is admissible in evidence, without regular proof of its execution. Barr v. Gratz, 4 Wheat. 213; 4 Cond. Rep. 426.

662. A copy of a policy of insurance, proved to have been compared with the original register on the books of the insurance company, and notice given to produce the original, cannot be read in evidence. The register in the hands of the company should be exhibited, after proving the existence of the original policy. United States v. Paul Shearman, Peters' C. C. R. 98.

663. A paper, purporting to be a certified extract from the general draft of certain districts, as framed by the surveyor-general, remaining in his office under the seal of his office, is not evidence; it being only an extract, and not being a copy of an office paper. Lessee of Griffith v. Tunckhouser, Peters' C. C. R. 418.

664. A paper offered to prove a particular fact, but which, in the opinion of the court, is not relevant to that fact, was not permitted to be read in evidence. Ibid.

665. A connected plot of sundry tracts of land, made and put together by an officer of the land office, is not evidence. Ibid.

666. An agreement signed by the agent of the lessor of the plaintiff in ejectment, for the sale

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