CHAPTER V. RECORDS AND JUDICIAL WRITINGS. § 499. Records and judicial writings. 500. Statutes are records; but the term is commonly used with reference to judicial proceedings. 501. Exemplification of record required where its existence is in issue. 502. Record itself may be used in same court; otherwise, a copy. 503. Courts take notice of seal of other courts, &c., in same jurisdiction. 504. How records of several states authenticated. 505. This not exclusive of all others, and not applicable to all courts. 506. The judge must certify the clerk, and that the attestation is in due form. 507. An office copy is one made by the proper officer. 508. An examined copy is one proved by a witness comparing it with t'e original. 509. Lost records proved like other lost writings. 510. Verdicts, evidence in some cases, if final. 511. Decree in chancery proved by copy of decree enrolled, &c. 512. Answers in chancery, how proved. 513. Records of inferior courts of record proved the same as those of superior courts. 514. Foreign judgments proved by examined copy, or copy under seal of state. 514a. The mode of proof and construction of foreign documents. 515. In case of private inquisition, the commission as well as the return must be put in evidence. 516. Depositions in chancery not read without proof of bill and answer. 517. Depositions taken by special commission read in connection with commis. sion and interrogatories. 518. Wills not admitted in evidence except in connection with probate. 519. Letters of administration received in evidence. 520. Examination of prisoners proved by magistrate, or by signature of prisoner. 521. Writs proved by production, or by copy after return. 522. Admissibility and effect of records. 523. Conclusive as to parties and privies, but not as to strangers. 524. But this must extend to both parties equally. 525. Proceedings in rem are an exception to this rule. 526. So also where the proceedings affect matters of a public nature. 531. Judgment equally conclusive whether specially pleaded or not. § 531a. Further discussion of the question of estoppels. 532. The identity of the transactions must be shown by other proof. 533. Recovery, without satisfaction, no bar to another action against another party. 534. Judgment conclusive as to all facts involved in the issue. 535. Sufficient if real parties are the same, although not nominally. 536. Privity extends to all persons represented by the parties. 537. Judgments in criminal actions not evidence in civil, and vice versa. 538. Record always evidence of the fact of judgment rendered. 539. But not of the facts upon which founded, unless between same parties. 539a. In contracts joint and several, judgment in one form no bar to suit in the other. 540. Foreign judgments; different aspects; jurisdiction must appear. 541. Such judginents in rem always conclusive. 542. Proceedings by foreign attachment somewhat of the same nature 543. This same effect attaches to the property wherever found. 544. This has been claimed as to foreign decrees affecting capacity and status of persons. 545. Judgments in regard to marriage and divorce binding everywhere. 546. The effect of foreign judgments in personam. 546a. They are now held conclusive in the English courts. 547. The American courts do not seem to give them this effect 548. The effect of judgments in the different states. 548a. An interlocutory judgment in one state not enforceable in another state. 549. It makes no difference as to foreign judgments, whether they are between citizens or foreigners. 550. Decrees of probate courts conclusive, if within their jurisdiction. 551. Decrees in chancery conclusive; effect of statements in the pleadings. 552. Depositions in chancery, how far evidence. 553. Generally admissible when subject-matter of suits the same, and the party had opportunity to cross-examine. 554. Not always indispensable to the admission of depositions in equity that the witness be cross-examined. 555. Depositions evidence of custom against strangers; secondary evidence where witness cannot be produced. 556. Judicial inquisitions primâ facie evidence.] § 499. 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. 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. As to the proofs of records, this is done either by mere production of the records, without more, or by a copy.2 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. 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 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.5 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.6 § 502. 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 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.] 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. 4 [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.] 5 Vail v. Smith. 4 Cowen, 71. See also Pepoon v. Jenkins, 2 Johns. Cas. 118; Colem. & Cain, Cas. 136, s. c. 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."] 1 Gilb. Evid. 26; [Tillotson v. War ner 3 Gray, 574, 577.] 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.1 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.2 § 503. 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. 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. 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.5 § 504. 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 Woodcraft v. Kinaston, 2 Atk. 317, 318; 1 Tidd's Pr. 398; Butcher & Aldworth'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. State R. 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, 3 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. Hamp. 309. 4 Supra, § 6. 52 Phil. Evid. 130; Bull. N. P. 227. 6 Mills v. Duryee, 7 Cranch, 481; Hampton v. McConnel, 3 Wheat. 234; supra, § 489. 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."1 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 shall be taken."2 By a subsequent act, these provisions are extended to the courts of all territories, subject to the jurisdiction of the United States. § 505. It seems to be generally agreed, that this method of authentication, as in the case of public documents before mentioned, is not exclusive of any other, which the states may think proper to adopt. It has also been held, that these acts of congress do not extend to judgments in criminal cases, so as to render a witness incompetent in one state, who has been convicted of an infamous crime in another.5 The judicial proceedings referred to in these acts are also generally understood to be the proceedings of courts of general jurisdiction, and not those which are merely of municipal authority; for it is required that the copy of the record shall be certified by the clerk of the court, and that there shall also be a certificate of the judge, chief justice, or presiding magistrate, that the attestation of the clerk is in due form. This, it is said, is founded on the supposition that the court, whose proceedings are to be thus authenticated, is so con stituted as to admit of such officers; the law having wisely left 1 Const. U. S. Art. iv. § 1. 2 Stat. U. S. May 26, 1790, 2 LL. U. S. ch. 38 [11], p. 102 (Bioren's edit.); 1 U. S. Stat. at Large (L. & B.'s edit.), 122.] 8 Stat. U. S. March 27, 1804, 3 LL. U. S. ch. 409 [56], p. 621 (Bioren's edit.); [2 U. S. Stat. at Large (L. & B.'s edit.), 298.1 4 Kean v. Rice, 12 S. & R. 203, 208; The State v. Stade, 1 D. Chipm. 303; Raynham v. Canton, 8 Pick. 293; Biddis v. James, 6 Binn. 321; ex parte Povall, 8 Leigh's R. 816; Pepoon v. Jenkins, 2 Johns. Cas. 119; Ellmore v. Mills, 1 Hayw. 359; supra, § 489; Rev. Stat. Mass. ch. 94, §§ 57, 59, 60, 61. ♪ Commonwealth v. Green, 17 Mass. 515; supra, § 376, and cases there cited. |