articles, the defendants having failed to pro- production of the original or accounting for its duce the articles upon notice. Held, that the non-production, although it was claimed upon defendants could not, by another deposition of the other side, and evidence had been given, the same witness, taken in their behalf, prove that the deed was a forgery. Ib. the further or different contents of such articles, but must produce them. Hastings v. Hopkinson, 28 Vt. 108.

XIII. DOCUMENTARY.

1. Town clerk's records and certificates.

303. Town clerk's certificate of record. The certificate of a town clerk upon a deed or execution that he has recorded the same, though not expressly required by statute, has always been received as prima facie evidence of the fact stated. Hutchinson, J., in Hubbard v. Dewey, 2 Aik. 316. Benedict v. Heineberg, 43 Vt. 236.

295. Original deed. An original deed, 304. The customary certificate of a town containing the statute requisites of witnessing, clerk upon the back of a deed that he had acknowlegment and recording, is admissible in received the deed for record, and had recorded evidence without other proof of execution, as it, was, before the statute directing that to be well in the action of covenant upon the coven- done, received as prima facie evidence of the ants in the deed, as in ejectment. Williams v. fact recited. Taylor v. Holcomb, 2 Tyl. 344. Morey v. McGuire, 4 Vt. 327. 34 Vt. 262 ;

Wetherbee, 2 Aik. 329.

296. Recital in deed. The recital of a and such certificate was received, where only deed in a subsequent deed is evidence of the the first part was signed by the town clerk, but former against a party to the latter. So, a sub-the last part was also evidently in his handwritsequent charter or grant of the government ing. Morey v. McGuire.

reciting a former grant, or surrender, is evidence 305. Where the law has made the time of of that fact as against the government, or party recording an instrument in the town clerk's claiming under the last grant. Lord v. Bige-office material, his certificate of the time is evilow, 8 Vt. 445; and see Cross v. Martin, 46 Vt. dence of that fact. Pawlet v. Sandgate, 17 Vt. 619.

14.

297. Book of record. The ancient record

306. A town clerk's certificate of a record, of a deed in a book in the town clerk's office or of the date of recording a deed, or of receivkept for that purpose, and in the handwriting ing it for record, is prima facie evidence of of the town clerk then in office, though not the fact, but only that, and may be rebutted, signed or certified by the town clerk, is admis- and the truth of the matter, whether certified sible as a record, with the force which belongs or not, be shown by parol. Taylor v. Holcomb, to it as such. Booge v. Parsons, 2 Vt. 456. 20 2 Tyl. 344. Morey v. McGuire, 4 Vt. 327. Vt. 589. 22 Vt. 356. Bartlett v. Boyd, 34 Vt. 256. Johnson v. Burden, 40 Vt. 567.

298. The same is true of a like record of a marriage. Northfield v. Plymouth, 20 Vt. 582. 307. The same is true of the certificates of 299. Copies by town clerk. Duly certi- justices of the peace, county clerks, and town fied copies from the proper town clerk's office clerks, of the fact of recording an execution of deeds, not presumed to be in the possession and levy. Hubbard v. Dewey, 2 Aik. 312. Myers of the party offering them, may be used in evi- v. Brownell. Ib., 407. Morton v. Edwin, 19 dence instead of the originals, as well in covenant as in ejectment. Williams v. Wetherbee, 2 Aik. 329.

Vt. 77; and of the certificates of town clerks of the record of proceedings of land tax collectors. Carpenter v. Sawyer, 17 Vt. 121. Chandler v. Spear, 22 Vt. 388. Kellogg, J., in Bartlett v. Boyd, 34 Vt. 262-3.

300. The official certificate of a town clerk is prima facie authentic, and it is not necessary, in this State, in order to render a record, or 308. The record of a town clerk cannot be other paper certified by him, admissible in evi- contradicted by parol evidence-as by proof of dence, to show by other proof that he was a mistake in the record. The only way is for either elected or sworn. Lemington v. Blodgett, the clerk to correct the record. Hoag v. Durfey, 37 Vt. 210. 1 Aik. 286. 301. It is the settled law and practice in| 309. A copy of the record of an execution this State, that in making title to real estate, a and levy is prima facie proof that the paper has party may prove the various links in his chain been correctly recorded, and at the time indiof title by certified copies of deeds from the cated. But the inaccuracy of the record may records of deeds in the town clerk's office, be shown-as by production of the original. without the production of the originals, except Perry v. Whipple, 38 Vt. 278. See Morton v. the deed to himself. Pratt v. Battles, 34 Vt. 391. Edwin, 19 Vt. 77. 302. A copy of the record of a deed, made 310. A town clerk's records are presumed to 49 years after the given date of the original, be made from the original papers, the contrary was properly admitted in evidence, without not appearing. Carbee v Hopkins, 41 Vt. 250.

311. The certification of a paper by a town] 320. Certifying negatively. The certificlerk as a true copy of a deed recorded," &c., cate of a town clerk that there is not on the where it appears from the copy that such a record a conveyance of certain lands, is not record existed in the office, will be intended as admissible in evidence. It is not an authorized certified from the record, and is well enough. official act. Hill v. Bellancs, 15 Vt. 727. 29 Preston v. Robinson, 24 Vt. 583. Vt. 328.

312. A town clerk certified, on a certain 321. Record of deed in another State. date, that the paper so certified was a true copy The office copy of a deed recorded in another of record, and that at a certain earlier date it State, in order to be admissible, must be authenwas received for record. Held, in the absence ticated according to the act of Congress. of proof to the contrary, that the legal presump- Brown v. Edson, 23 Vt. 435. tion was that the paper was in fact recorded 322. Proprietor's clerk. Where a deed when received for record. Wing v. Hall, 47 was certified as recorded by the proprietor's Vt. 182. clerk ;-Held, that his acting as such was suffi313. It being made by statute the official cient proof of his official character, without duty of a town clerk to record all births in the proof of his appointment. Brush v. Cook, town, a duly authenticated copy of such record Brayt. 89. is admissible as evidence of the facts which it 323. The records, by proprietors' clerks, of embodies, although the record was made upon deeds made and recorded before the act of Feby. the report of the parent long after the time of 26, 1783, authorizing them to record deeds, are the births. The weight of the record as evi- not evidence as records. Hart v. Gage, 6 Vt. dence is for the jury, under the circumstances. 170. Derby v. Salem, 30 Vt. 722.

324. Entry on town treasurer's books. 314. Record of papers not required to Where the question was, whether a certain be recorded. A revocation of a power of town order in favor of C, had been paid to attorney to convey lands not being required by apply on the plaintiff's execution against him; law to be recorded, a copy of the record of such-Held, that an entry on the town treasurer's revocation is not admissible to prove the fact of books of this order to the credit of the plaintiff, revocation. Bush v. Van Ness, 12 Vt. 83. as town treasurer, did not tend to prove the negative. Nye v. Kellam, 18 Vt. 594.

315. A town clerk is not a certifying officer of a grand list, or other documents which are required by law to be deposited in his office, but which are not required to be recorded. Hence, neither his official certificate of what a grand list contains, nor a certified copy of such list, is legal evidence. Barnet v. Woodbury, 40 Vt. 266. (Changed by Stat. 1876, No. 55.)

316. An office copy of an instrument recorded in the town clerk's office, purporting to be a deed, but not sealed, however ancient, is not admissible as evidence of title, where no possession has followed it, and there is no other evidence of due execution. Williams v. Bass, 22 Vt. 352.

317. The record of a deed not entitled to registry is not of itself evidence of the existence

2. Court records and files.

325. A copy attested by the clerk of a court, not only of records, technically so called, but also of all papers, files, rolls, &c., legally deposited in his office and there required to remain, is proper evidence of the original, affording as high a degree of certainty as sworn copies can furnish. Mattocks v. Bellamy, 8 Vt. 463.

326. The files of the county clerk in the cause, with his certificate of the judgment, were admitted in evidence in the supreme court, but with disapproval of the practice. Allis v. Beadle, 1 Tyl. 179.

327. Dictum. An exemplified copy of a of the deed, yet such record, in connection judgment is the legal and proper evidence to with long and undisputed possession consistent prove the same. Neither the records themselves, with the deed, and other circumstances which nor minutes, should ever be received, where tend, as matter of fact, to show the probable copies can be obtained. Lowry v. Cady, 4 Vt. execution and loss of the deed, is admissible as 504. evidence from which the jury may find by pre- 328. A decree in chancery cannot be proved sumption the existence and loss of the deed. by docket minutes. The decree itself, or a Townsend v. Downer, 32 Vt. 183. copy of the record, if the decree has been enrolled, is the only legitimate evidence. Austin v. Howe, 17 Vt. 654.

318. The record in the town clerk's office of a paper purporting to be a deed, but not sealed, was received as evidence of the existence of an 329. A judgment rendered at a former term original paper of like tenor, there being other of the same court may be proved by the files evidence of the existence of an original, now and docket entries; but to make proof in one lost.

Colchester v. Culver, 29 Vt. 111.

319. So, of a deed defectively acknowledged. Townsend v. Downer, 32 Vt. 183.

court of the proceedings in another, it must be by a record written out at length. Armstrong v. Colby, 47 Vt, 359.

330. A certificate, signed by a register in bankruptcy, that the defendant was by him adjudged a bankrupt, &c., is not evidence. Adams v. Wait, 42 Vt. 16.

331. A certificate of the prothonotary of the court of King's Bench in Canada to a bill of fees and disbursements by an attorney in a suit in that court, was held not admissible as evidence here. Pierson v. Boston, 1 Aik. 54.

340. In an appealed case, after judgment and motion in arrest, another certified copy of the record, differing from the former, was presented as the true record. The supreme court continued the cause, that the justice might come into court with his record, and verify the copy on which the trial had been had, or correct it. Tufts v. Aiken.

341. Interpolation. In support of the issue 332. A paper simply certified by the clerk that an administrator's bond was given on the of a court of record, without seal attached, that 8th of May, the record of the probate court of it is a true copy of record, is not sufficiently that date was of an order that the plaintiff be authenticated to be received as proof of the appointed administrator, and that he give record. Parish v. Pearsons, 27 Vt. 621. bonds, &c., and then recited that he had exe

333. A certified copy of record was held cuted a bond agreeably to the order and was defective in substance, where the certifying appointed administrator. Held, that an interclerk was clerk of both the county and the polation in the record on a subsequent day, viz: supreme court, and it did not appear in which "which said bond was received and filed in court the record was; nor, except by supplying in court May 26," &c., was no part of the omissions by intendment, in what state or record of May 8th, and did not contradict it. county the record was. Ib. Clark v. Tabor, 22 Vt. 595.

334. The word "official" attached to a paper, and signed by a proper certifying officer, is no verification of it, as either an original, or a true copy. Johnson v. Bolton, 43 Vt. 303.

342. Foreign judgments. Exemplifications of the record of judicial proceedings in a foreign country, must be considered as prima facie correct; if incorrect, the onus probandi lies on the opposite party. Woodbridge v. Austin, 2 Tyl. 364.

335. Probate records. Copies of probate records of the division of an estate among heirs are admissible, though certified to be extracts, 343. A certified copy of the record of a jusif they contain all that need be recorded to tice's judgment rendered in another State, is the make the division legal. Robinson v. Gillman, appropriate evidence to prove such judgment. 3 Vt. 163. Starkweather v. Loomis, 2 Vt. 573 (overruling 336. Wills devising lands, and probate pro- Ingersoll v. Van Gilder, 1 D. Chip. 59. Blodget ceedings affecting the title to real estate, which|v, Jordan, 6 Vt. 580); though in such other State are required by statute to be recorded, must be (as New York) a justice court is not regarded as first recorded in the town clerk's office, where a court of record, but is required to keep records. the estate is situate, or they cannot be used as Carpenter v. Pier, 30 Vt. 81. Martin v. Wells, evidence on the question of title. Harrington 43 Vt. 428. Semble, that in such case it should v. Gage, 6 Vt. 532. Royce v. Hurd, 24 Vt. 620. be shown, that the person certifying was a (Slade's Stat. c. 44, s. 86. G. S. c. 49, s. 37.) But justice. Ib. if so recorded at any time before offered in evidence, this is sufficient. Abbott v. Pratt, 16 Vt. 626.

337. Copies of the records of the probate court of the assignment of dower, &c., in lands, although not recorded in the town clerk's office, were admitted in evidence for the purpose of giving locality to the lands specified in a deed, which referred to such records for a description merely. Held correct. Pingry v. Watkins, 17 Vt. 379.

344. Conclusiveness of record. A record of court imports absolute verity, not only when it comes collaterally in question, but also when the judgment of which it is evidence is sought to be enforced, or is made matter of defense; and even when the proceeding is upon a review of the judgment itself for error in law -as, upon writ of error, or certioriari-the truth of the record cannot be disputed. Hall, J., in Mosseaux v. Brigham, 19 Vt. 460.

345. Justices' courts in this State are courts 338. Justice's record. If a justice's record of record, and the record of a justice has the as certified is imperfect, the only remedy is to same conclusiveness between the parties as the allege diminution, supported by affidavits, and record of any other court. Stone v. Proctor, move for a mandamus upon the justice to cer- 2 D. Chip. 113. Martin v. Blodgett, 1 Aik, tify more fully. Martin v. Blodget, 1 Aik. 379. 30 Vt. 202. 375. Stone v. Proctor, 2 D. Chip. 108. 346. The record of a court cannot be im339. The court will not go into proof by peached or contradicted by proof of its falsity; affidavits or statements of counsel and others, and this applies to the records of justices of the in regard to the correctness of a record of other peace; and the record is to be tried by the court courts. The proceeding must be taken by upon inspection, and not by the jury. Middlemandamus, or other proper writ. Nixon v. town v. Ames, 7 Vt. 166. Spaulding v. ChamBarber, 27 Vt. 783. Tufts v. Aiken, 13 Vt, 490. berlin, 12 Vt. 538. Barnard v. Flanders, Ib.

657. Pike v. Hill, 15 Vt. 183. Walker v. Briggs, 355. But where the record was of a writ 11 Vt. 84. Beech v. Rich, 13 Vt. 595. Eastman against four and a service upon two only, and v. Waterman, 26 Vt. 494. Farr v. Ladd, 37 proceeded: "And at the same term come the Vt. 156. said defendants by their attorney," naming him, 347. In an action of trespass and false im- and then stated the proceedings to a final judgprisonment --Held, that it cannot be shown ment against the defendants, not naming them against the record, that the writ was not signed in the record after the recital or copy of the by the justice rendering the judgment, but by writ and return ;-Held, that the record should another justice, and that the defendant, after be interpreted as stating an appearance only the service erased the name of the first justice for those defendants upon whom service was and inserted that of the justice who rendered made. Hubbard v. Dubois, 37 Vt. 94. Held, the judgment. Spaulding v. Chamberlin. also, that the rule to the auditor, his citation 348. Nor, in debt on a recognizance, that and the return thereon and his report in that the defendant never consented to have his name case, in which the parties upon whom the writ entered or to be recognized. Beech v. Rich, 13 was served were alone named as defendants, Vt. 595. might be considered in connection with the 349. Nor, in case of a confession of judg-record produced, as aiding to explain the ment where the objection was taken by a sub-record itself, when doubtful or equivocal. sequent attaching creditor, that the defendant Ib.

did not appear personally before the justice and 356. Where a judgment appears by the give the confession. Farr v. Ladd, 37 Vt. 156. 350. So, in an audita querela to set aside a judgment for want of notice to the complainant, and the record showed notice, it was held conclusive. Eastman v. Waterman, 26 Vt. 494. 37 Vt. 160.

record to be satisfied, as by the levy of the execution, this is conclusive, until corrected by proceedings brought directly for that purpose. Baxter v. Tucker, 1 D. Chip. 353. 21 Vt. 578. Pratt v. Jones, 22 Vt. 341. 26 Vt. 448.

357. Where not conclusive. A record, 351. So, in an action against a justice for or return, is not conclusive in any authorized willfully and maliciously absenting himself from proceeding brought directly upon it, the purthe trial, his record was held conclusive in his pose of which is to set it aside and vacate, or own behalf. Barnard v. Flanders, 12 Vt. 657. correct it; and in such case the record or re26 Vt. 500. 37 Vt. 160. turn may be contradicted by parol;-as on 352. To a writ of review founded upon a petition to the supreme court to vacate an justice's record showing a continuance of the irregular levy of execution. Briggs v. Green, original suit for notice, a judgment by default 33 Vt. 565;--on petition to the county court to and a recognizance for a review, the defendant vacate a justice's judgment. Mosseaux v. Brigpleaded that the plaintiff was not out of this ham, 19 Vt. 457;-on audita querela to set State at the commencement of the original suit aside judgments. Paddleford v. Bancroft, 22 against him. Held ill, for that the justice's Vt. 529, citing 1 Aik. 359. 9 Vt. 118. 11 Vt. record showed a conclusive adjudication of that 161. 12 Vt. 567. But see Eastman v. Waterfact, and that the party had not had notice. man, 26 Vt. 494. 37 Vt. 160. Davis v. Beebe, 5 Vt. 560.

358. In audita querela to set aside a judg353. Where the record of a judgment shows ment, the record showed suit brought against that the defendant appeared either personally or the complainants "by attachment of their proby attorney, such fact cannot be traversed, nor perty, with notice." Held, that the record was will he be permitted to show that such attorney not conclusive of service on the complainants had no authority to so appear, and the judg-or of notice to them of the suit, and that they ment will effectually conclude him in an action might show want of notice in fact. Godfrey v. thereon. St. Albans v. Bush, 4 Vt. 58. New-Downer, 47 Vt. 653. comb v. Peck, 17 Vt. 302; and see 18 Vt. 214. Hubbard v. Dubois, 37 Vt. 96. Blood v. Crandall, 28 Vt. 396. State v. Bradish, 34 Vt. 425. Abbott v. Dutton, 44 Vt. 546.

3. Officers' returns.

359. The official return of a public officer,

354. Where a writ issued against two, and -as a sheriff,-is admissible evidence in his the return showed a service upon one and a favor, as also to affect the rights of third pernon est as to the other, but the record of the sons. But it is only prima facie evidence for judgment stated that the defendants appeared such purposes. It is open to contradiction colby attorney, that the defendants confessed, &c., laterally as against himself, even by a party to and the court rendered judgment against the the process; and by third persons because they defendants-using the plural, but omitting the were neither parties nor privies to the process. names;-Held, that the record was conclusive But as between the parties to the original suit, that both the defendants in the writ appeared, or as against himself, his return is conclusive. &c. Blood v. Crandall, Barrett v. Copeland, 18 Vt. 67, 26 Vt. 750,

4. Other official entries.

Hathaway v. Goodrich, 5 Vt. 65. Stanton v. Hodges, 6 Vt. 66. 360. An officer's return is not conclusive 369. Patent office. The plaintiff, although against him, as to mere inferences or presump- he had no connection with the patent office, tions upon which the return is silent. Thus, was permitted to testify to his examination at where his return upon an execution was, that the patent office for evidence of the granting of he had sold the property to A;-Held, that he a patent, or of an application therefor, and that might prove by parol, the capacity in which A nothing pertaining thereto could be found exacted, as that he was the agent of B. Carney cept a paper which he produced. Held, not v. Dennison, 15 Vt. 400. error. James v. Hodsden, 47 Vt. 127.

361. A constable was sued for an assault 370. Municipal corporations. The action and false imprisonment, and justified by virtue of municipal corporations in public meeting of process. Held, that his return was evidence can be proved only by their records. Cabot v. in his favor, but only prima facie evidence, and Britt, 36 Vt. 349. was subject to contradiction. Barrett v. Copeland, 18 Vt. 67.

371. The records of the proceedings of municipal public corporations, such as towns 362. In trespass for false imprisonment and school districts, cannot be collaterally imagainst a tax collector, where he had made full peached;-as, by evidence that a recorded vote return of his doings upon the warrant, ending of a school district was passed by such as were with the commitment of the plaintiff to jail ;- not legal voters. Eddy v. Wilson, 43 Vt. 362. Held, that the defendant could not show his 372. Notaries. The entries and memoproceedings by parol;-that the return was randa, made in the due course of business, by prima facie evidence in his favor, but subject notaries, clerks and other persons, may be reto contradiction by the plaintiff; and that the ceived in evidence after the death of the person defendant could rebut the plaintiff's evidence who made them ;-as, in this case, the memorby evidence of like character. Boardman v. anda and the formal protest, afterwards drawn Goldsmith, 48 Vt. 403. up, of a deceased notary, of the demand of payment of a promissory note, and notice to the indorsers, were held evidence, not only of the Austin v. Wil

363. The return of an indifferent person, authorized to serve a writ, has the same force and effect as that of a regular public officer, and demand, but of the notice also. is no more subject to impeachment and contra-son, 24 Vt. 630. diction. Downer v. Back, 25 Vt. 259.

364. An officer's return of sale upon execution, although made out of time, is prima facie evidence of the sale. Gates v. Gaines, 10 Vt. 346. 365. The return of an officer levying an execution on land is conclusive on the parties, and all claiming under them. Hathaway v. Phelps, 2 Aik. 84. Eastman v. Curtis, 4 Vt. 616. 25 Vt. 260;-except in case of proceedings brought directly to set it aside. Briggs v. Green, 33 Vt. 565.

5. Private documents.

373. Account books. Where the books of the parties are evidence, entries made by the clerk of one of the parties in due course of business, are admissible where the clerk has deceased. Bacon v. Vaughn, 34 Vt. 73.

374. So, although the clerk be in life, and although not produced as a witness. Cummings v. Fullam, 13 Vt. 434.

366. The return of a proper officer of his 375. In assumpsit for goods sold and delivlevy of an execution upon land is conclusive, ered, the books of account of the party, accomas to all persons, of every act or thing stated panied with evidence of their correctness, are therein which is within his official jurisdiction admissible in evidence ;--as, also, where it had and duty, and it cannot be collaterally impeach- been agreed that the defendant's account should ed or contradicted. Swift v. Cobb, 10 Vt. 282. be payment on a note. Burnham v. Adams, 5 367. The statement in an officer's return of Vt. 313. process served by copy left at the defendant's 376. But such books are not admissible last and usual place of abode, that he, on the without evidence to support them. same day, gave the defendant personal notice Smith, 5 Vt. 556. of the suit and the time and place of trial, is no proper part of the return, and is not evidence for any purpose. Johnson v. Murphy, 42 Vt. 645.

Chase v.

377. The reputation of a party for fairness and correctness as a keeper of books of account, is not admissible by way of impeachment of his accounts. Hitt v. Slocum, 37 Vt. 524.

368. Marriage certificate. A marriage 378. The fact that charges stand upon the certificate issued by an officiating minister, was plaintiff's account book, that they were made held admissible to prove the marriage, accom- by him, and at the time they bear date, does panied by declarations of the party referring to not bind the triers, as matter of law, to allow it as evidence of the facts stated in it. State v. such charges, though there be no evidence Abbey, 29 Vt. 60. against them. The book is evidence, and the