nature, such as the custom of a particular town, a descent, the nature of a particular abbey, the boundaries of a country, and the like, they are not admissible.1

§ 498. Certificates. In regard to certificates given by persons in official station, the general rule is, that the law never allows a certificate of a mere matter of fact, not coupled with any matter of law, to be admitted as evidence.2 If the person was bound to record the fact, then the proper evidence is a copy of the record, duly authenticated. But as to matters which he was not bound to record, his certificate, being extra-official, is merely the statement of a private person, and will therefore be rejected. So, where an officer's certificate is made evidence of certain facts, he cannot extend its effect to other facts, by stating those also in the certificate; but such parts of the certificate will be suppressed. The same rules are applied to an officer's return.5

reign of Henry VIII. The Vaux Peerage case, 5 Clark & Fin. 538. In Iowa, books of history, science, and art, and published maps and charts, made by persons indifferent between the parties, are presumptive evidence of facts of general interest. Code of 1851, § 2492. [There is great want of symmetry in the law, in regard to the admission of books of art and science to be read before the court and jury, in order to establish the laws or rules of a particular art or profession. Redf. on Wills, part 1, § 15, pl. 17-19, pp. 146, 147. The rule seems well settled, that such books are not to be read before the jury, either as evidence or argument. Commonwealth v. Wilson, 1 Gray, 337; Washburn v. Cuddihy, 8 Gray, 430; Ashworth v. Kittridge, 12 Cush. 193. But courts often manifest the consciousness of the want of principle upon which the rule excluding such books rests, by quoting the very same books in banc which they were deciding were rightfully rejected at the trial, and thus declaring a rule of law, pertaining to the veterinary art or profession, or any other subject upon the authority of these same books, which, in the same breath, they declare to be so unreliable as not to be evidence, either of the laws or the facts involved in the same identical point upon which the court decided solely upon the evidence of these same books. This goes upon the ground, that reading, or hearing read, such books will be entirely safe and proper while sitting in banc, but not equally so to the same judges while sitting with a jury to determine, among

others, the very same questions then before the full court. This seems to give some countenance to the complaints of the learned author of the "Jurisprudence of Insanity," in his last edition, upon this point, of the admissibility of medical books to prove the laws of the medical profession. Washburn v. Cuddihy, 8 Gray, 430.]

Stainer v. Droitwich, 1 Salk. 281; s. c. Skin. 623; Piercy's case, Tho. Jones, 164; Evans v. Getting, 6 C. & P. 586, and n. [But Appleton's Cyclopædia was rejected as evidence that a certain island is known amongst merchants and insurers as a guano island. Whiton v. Alb. City Ins. Co., 109 Mass. 24.]

2 Willes, 549, 550, per Willes, Ld.

Ch. J.

8 Oakes v. Hill, 14 Pick. 442, 448; Wolfe v. Washburn, 6 Cowen, 261; Jackson v. Miller, Id. 751; Governor v. McAffee, 2 Dev. 15, 18; United States v. Buforp, 3 Peters, 12, 29 [Childress v. Cutter, 16 Miss. 24. A certificate from the United States commissioner of patents, that diligent search has been made, and that it does not appear that a certain patent has been issued, is not evidence. Bullock v. Wallingford, 55 N. H. 619; Harrison v. South Scituate, 115 Mass. 336; ante, § 485, n.].

Johnson v. Hocker, 1 Dal. 406, 407; Governor v. Bell, 3 Murph. 331; Governor v. Jeffreys, 1 Hawks, 297; Stewart v. Alison, 6 S. & R. 324, 329; Newman v. Doe, 4 How. 522 [Brown v. The Independence, Crabbe, 54].

5 Cator v. Stokes, 1 M. & S. 599; Arnold v. Tourtelot, 13 Pick. 172. Á no

CHAPTER V.

RECORDS AND JUDICIAL WRITINGS.

§ 499. Records and judicial writings. The next class of written evidence consists of Records and Judicial Writings. And here, also, as in the case of Public Documents, we shall consider, first, the mode of proving them; and, secondly, their admissibility and effect.

§ 500. Statutes. The case of statutes, which are records, has already been mentioned under the head of legislative acts, to which they seem more properly to belong, the term record being generally taken in the more restricted sense, with reference to judicial tribunals. It will only be observed, in this place, that, though the courts will take notice of all public statutes without proof, yet private statutes must be proved, like any other legislative documents; namely, by an exemplification under the great seal, or by an examined copy, or by a copy printed by authority.1

§ 501. Proof of records. As to the proofs of records, this is done either by mere production of the records, without more, or by a copy. Copies of record are, (1) exemplifications; (2) copies made by an authorized officer; (3) sworn copies. Exemplifications are either, first, under the great seal; or, secondly, under the seal of the particular court where the record remains.3 When a record is the gist of the issue, if it is not in the same court, it should be proved by an exemplification. By the course of the common law, where an exemplification under the great

1 [See supra, §§ 480, 481.] 2 Writing done with a pencil is not admissible in public records, nor on papers drawn to be used in legal proceed ings which must become public records. Meserve v. Hicks, 4 Foster, 295. The original papers, the record or a copy, are all admissible evidence. State v. Bartlett, 47 Maine, 396.]

3 Bull. N. P. 227, 228. An exemplification under the great seal is said to be of itself a record of the greatest validity. 1 Gilb. Evid. by Lofft, p. 19; Bull. N. P.

226. Nothing but a record can be exemplified in this manner. 3 Inst. 173. [The agreement of counsel is not evidence that the court below made a certain ruling. It must be shown by the records of the court making the ruling. Flemming v. Clark, 12 Allen (Mass.), 110.]

[The rule allowing a copy of a record to be used in evidence is founded on convenience; and when the original record itself is produced, it is the highest evidence, and is admissible. Gray v. Davis, 27 Conn. 447.]

seal is requisite, the record may be removed into the Court of Chancery, by a certiorari, for that is the centre of all the courts, and there the great seal is kept. But in the United States, the great seal being usually if not always kept by the Secretary of State, a different course prevails; and an exemplified copy, under the seal of the court, is usually admitted, even upon an issue of nul tiel record, as sufficient evidence.1 When the record is not the gist of the issue, the last-mentioned kind of exemplification is always sufficient proof of the record at common law.2

§ 502. Same subject. The record itself is produced only when the cause is in the same court, whose record it is; or, when it is the subject of proceedings in a superior court. And in the latter case, although it may by the common law be obtained through the Court of Chancery, yet a certiorari may also be issued from a superior court of common law, to an inferior tribunal, for the same purpose, whenever the tenor only of the record will suffice; for in such cases nothing is returned but the tenor, that is, a literal transcript of the record, under the seal of the court; and this is sufficient to countervail the plea of nul tiel record. Where the record is put in issue in a superior court of concurrent jurisdiction and authority, it is proved by an exemplification out of chancery, being obtained and brought thither by a certiorari issued out of chancery, and transmitted thence by mittimus.*

1 Vail v. Smith, 4 Cowen, 71. See also Pepoon v. Jenkins, 2 Johns. Cas. 118; s. c. Colem. & Cain. Cas. 136. In some of the States, copies of record of the courts of the same State, attested by the clerk, have, either by immemorial usage, or by early statutes, been received as sufficient in all cases. Vance v. Reardon, 2 Nott & McCord, 299; Ladd v. Blunt, 4 Mass. 402. Whether the seal of the court to such copies is necessary in Massachusetts, quære; and see Commonwealth v. Phillips, 11 Pick. 30. [In Commonwealth v. Downing, 4 Gray, 29, 30, it is decided that a copy of a record of a justice of the peace need not bear a seal; the court saying, "it need not bear a seal, nor is it the practice to affix one."]

21 Gilb. Evid. 26 [Tillotson v. Warner, 3 Gray, 574, 577].

3 Woodcraft ". Kinaston, 2 Atk. 317, 818; 1 Tidd's Pr. 398; Butcher & Ald worth's case, Cro. El. 821. Where a domestic record is put in issue by the plea, the question is tried by the court, notwithstanding it is a question of fact.

And the judgment of a court of record of
a sister State in the Union is considered,
for this purpose, as a domestic judgment.
Hall v. Williams, 6 Pick. 227; Carter v.
Wilson, 1 Dev. & Bat. 362. [So is the
judgment of a circuit court of the United
States considered a domestic judgment.
Williams v. Wilkes, 14 Penn. St. 228.]
But if it is a foreign record, the issue
is tried by the jury. The State v.
Isham, 3 Hawks, 185; Adams v. Betz, 1
Watts, 425; Baldwin v. Hale, 17 Johns.
272. The reason is, that in the former
case the judges can themselves have an
inspection of the very record. But in the
latter, it can only be proved by a copy,
the veracity of which is a mere fact,
within the province of the jury. And see
Collins v. Matthews, 5 East, 473. [So a
foreign law is, in some cases at least,
a question of fact for the jury. Ante,
§ 486.] In New York, the question of fact,
in every case, is now, by statute, referred
to the jury. Troter v. Mills, 6 Wend.
512; 2 Rev. Stat. 507, § 4 (3d ed.).
4 1 Tidd's Pr. 398.

§ 503. Same subject. In proving a record by a copy under seal, it is to be remembered, that the courts recognize without proof the seal of State, and the seals of the superior courts of justice, and of all courts established by public statutes.1 And by parity of reason it would seem that no extraneous proof ought to be required of the seal of any department of State, or public office established by law, and required or known to have a seal.2 And here it may be observed, that copies of records and judicial proceedings, under seal, are deemed of higher credit than sworn copies, as having passed under a more exact critical examination.3

§ 504. Records of the courts of the several States. In regard to the several States composing the United States, it has already been seen, that though they are sovereign and independent, in all things not surrendered to the national government by the constitution, and, therefore, on general principles, are liable to be treated by each other in all other respects as foreign States, yet their mutual relations are rather those of domestic independence, than of foreign alienation. It is accordingly provided in the constitution, that "full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."5 Under this provision it has been enacted, that "the records and judicial proceedings of the courts of any State shall be proved or admitted, in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the State from whence said records are or

1 Olive v. Guin, 2 Sid. 145, 146, per Witherington, C. B.; 1 Gilb. Evid. 19; 12 Vin. Abr. 132, 133, tit. Evid. A, b, 69; Delafield v. Hand, 3 Johns. 310, 314; Den v. Vreelandt, 2 Halst. 555. The seals of counties palatine and of the ecclesiastical courts are judicially known, on the same general principle. See also, as to probate courts, Chase v. Hathaway,

14 Mass. 222; Judge, &c. v. Briggs, 3 N. H. 309.

2 Supra, § 6.

8 2 Phil. Evid. 130; Bull. N. P. 227. 4 Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 234; supra, § 489.

5 Const. U. S. art. iv. § 1.