Craig v. Brown , 6 F. Cas. 721 ( 1816 )

WASHINGTON, Circuit Justice.

The objections to the record being offered in evidence, are, that the seal of the court is not affixed to it, nor is it certified by the judge, that the record is authenticated in due form.

The act of congress of the 26th of May, 1790 [1 Stat. 122],—2 Laws [Bior. & D.] 102,—declares 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, &c. that the said attestation is in due form. As to the mode of authenticating the legislative acts of the several states, the same law declares, that it shall be by affixing thereto the seal of the respective states.

[NOTE. For dismissal of the action, see Case No. 3,330.]

The record offered in evidence in this case, has the signature of the clerk, with the seal of the late territory of New Orleans, affixed, the clerk certifying, that no seal has yet been provided for the state, and the certificate of the presiding judge of the court states, that the person whose name is signed to the attestation, is clerk of the said court, and that the signature is in his own proper hand writing. As to the law of the territory, it is printed in a small pamphlet, in the French and English' languages, but has no seal whatever affixed. It is objected to this evidence, first, that it has not the seal of the court; and secondly, that it is not certified as the law directs.

First. Whenever the court whose record is certified has no seal, this fact should appear, either in the certificate of the clerk, or in that of the judge. In this case the seal affixed is stated to be that of the late territory of Orleans, not of the court; and it is further stated that no seal has been provided for the state. But from the impression of the seal, it would seem that it had belonged to the court before the territory was erected into a state; in which case it might well continue to be the seal of the court, under the new form of government, although no new provision for that purpose had been made. There are strong reasons for believing that the circumstance which has given rise to this objection, has proceeded from an inaccuracy of expression in the clerk, and I shall therefore proceed to examine the other objection without giving any decided opinion as to the sufficiency of this.

Second. In answer to this objection it is contended, that the attestation of the clerk appears upon the face of it to be in due form, and that the certificate of the judge, though it does not expressly state it to be so, contains what amounts to such an allegation, and is therefore a substantial compliance with law. I cannot accede to this argument. Each state has a form of its own for authenticating records, prescribed either by positive law, or by practice; and to make those records evidence in the other states, congress has thought proper to declare, that the attestation must be, not according to the form used in the state where it is offered, or to any other form generally observed, but to that of the state or of the court from whence the record comes; and the only evidence of this fact, is the certificate of the presiding judge of that court. I infer that the form intended by the law is that which I have stated, from the circumstance, that congress has prescribed none, and it is not to be supposed that the judge who gives the certificate, should be acquainted with any other form than that of his own state or court.

But it is contended, that although this certificate should be too informal to entitle the record to be given in evidence, upon the trial of the aause, it is nevertheless sufficient upon a question of bail. The answer to this is, that the record in question is not evidence for any purpose, because it is not so authenticated as to entitle it to credit. It is in fact no more than a paper having the signature of a person , who stiles himself clerk of the court, but who is not shown by the certificate to be so, inasmuch as it states a fact which the law does not authorise or require the judge to certify; and therefore it is the same thing as if the certificate had been omitted altogether.

As to the law of the territory of Orleans, upon which these proceedings have been founded, it is equally inadmissible; not being authenticated under the seal of the state of Louisiana, as the act of congress requires. •

Evidence, on which the court will discharge on common bail, ought not to be of a doubtful nature; since the plaintiff may lose his debt altogether, if it should turn out that he was entitled to demand special bail. A mistake made on the other side may be productive of inconvenience to the defendant, but the consequence will be less serious.

Buie discharged.