Smith v. Blagge

1 Johns. Cas. 285

Opinion

Per Curiam.

Without meaning that any inference shall be drawn from the opinion now delivered, as to the propriety of the present piea, which is conceded by the issue, *we think the copy of the record is not well authen- ['239] ticated. We cannot officially know the forms of another state, and therefore they ought to be proved. The act of congress directs the mode'of proof, and requires that the presiding judge of the court from which the copy is obtained shall certify that the attestation is in due form. This not being done, the record is not sufficiently proved.

(b)

' On the application of the plaintiffs, Ahe court assigned another day to produce a copy duly authenticated.

“ The certificate under this branch of the requisition should be, according to the words of the law, by the judge ; i. e. the judge of the court in which the judgment was given. The use of the definite article implies the idea of á judge, who-alone constitutes the court. If the court has more than one member, none can certify but the chief or presiding one. And the certificate should contain intrinsic evidence that the person certifying was a judge of/ .the. court in which tire judgment was rendered; and not only so, but that he "'was the sole, chief, or presiding judge, as the case may be. Per Martin, J.' delivering the opinion' of the court in Kirtland v. Smith, 2 Mart. Lou. It. 497, 498. See also Stephenson v. Bannister, 3 Bibb’s R. 369, 370, stated infra-And, it seems, defects in this respect cannot be supplied aliunde. Id. Kirtland v. Smith, suprá. If, however, the record offered' in evidence shows that the person certifying is chief justice, the certificate, it has been said, will be sufficient, though the fact of. his being the Chief presiding judge IS not stated in his certificate. Mudd v. Beauchamp, Litt. Sel. Cas. 142. Qucere however ; for it ought to hppear that the presiding judge possesses that character at the time of giving the certificate; Stephenson v. Bannister, 3 Bibbs R. 370, •stated infra; and how can this fact appear ,save from the certificate ?

" “ The chancellor is the judge of the court of chancery, for the .purpose of authenticating proceedings of his court under the act of congress. Scott v. Blanchard 8 Mart. Lou. R. N. S. 306.

“ -Where the judgment sought td be proved was rendered in the supreme •court of the county of Jefferson, Mississippi,, as appeared from the clerk’s ceiV tificate, and the judge who certified, was the judge of the first judicial circuit, the .authentication was decided to be .incomplete. Non constat, say the cóürt, that the judge .jvhO certifies or attests, presides in the court in ,which the judgment was rendered. Kirtland v. Smith, supra.”

See also Stephenson v. Bannister, 3 Bibb’s R. 369. “It is indispensable •that the judge should state in his certificate, that the attestation of the clerk is in.due form. These words in the certificate mean, that the attestation is ■in’-the form adapted, by positive law or practice, for authenticating sitriilar records in the state whence the record comes. The intention o'f congress was, not .that the attestation should be according to the form used in the state-where it was offered, or to any other form generally observed ; but according to the form prescribed for the'eourt where the proceeding was had; and the certificate of the presiding judge is the only evidence which can be received of such form having been complied with. Craig v. Brown, 1 Peters' C. C. R. 352. Tipton v. Mayfield’s curator, 10 Lou. R. (by Curry,) 189, 193. United States v. Wood, 2 Wheel. Crim. Cas. 328. Conklin’s Treat. 256. Drummond v. Magruder, 9 Cranch, 122, 125. Barbour v. Watts, 3 Marsh. Ken. R. 292. See Henthorn v. Doe, 1 Blackf. 160; id. 164, note (2); Hence, a mere certificate verifying the hand-writing of the clerk is' not enough. Craig v. Brown, supra. No evidence can be. received, contradictory to the certificate, for the purpose of showing that the attestation is not in due form, Ferguson v. Harwood, Cranch, 408, 412. Conklin’s Treat. 256.” Cowen & Hill’s Notes to thill. Ev. 1131, 1132, 1133.