Kirkland v. Smith , 2 Mart. (N.S.) 497 ( 1824 )

MARTIN, J

delivered the opinion of the court. This case is before us, on a bill of exceptions, to the admission in evidence of a judgment, rendered in the state of Mississippi.

It is contended the district court erred in admitting it, as it was not legally certified.

1. Because the record is not authenticated by the seal of the court, and it does not appear either in the certificate of the clerk, nor that of the judge, that the court had not a seal-

2. It does not appear that the clerk and the judge, who certify, are officers of the same court. The one states himself clerk of the superior court of the county of Jefferson, and the other judge of the first judicial district. So non constat the judge who certifies or attests, presides in the court in which the judgment appears to have been given.

East'n District. May, 1824.

The act of congress, 1790, ch. II. requires the certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be.

The certificate does not appear to have been given by a Chief Justice or presiding Magistrate-It should therefore appear to have been given, 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 a judge, who alone constitutes the court. If the court has more than one member, none can certify, but the Chief or presiding one. In the certificate before us, it does not appear that the person, who certifies, was a judge of the court, in which the judgment was rendered, and if this did appear, it would not suffice, for non con-stat, that he was the sole, chief, or presiding judge.

Admitting then this deficiency could be eked out by other evidence, none appears to have been introduced, and the district court, on the contrary, appears to have overruled the legal objection of the appellant's counsel.-We think it erred.

Workman for the plaintiff, Watts & Lobdell for the defendant.

The certificate ought to contain intrinsic evidence, of the official capacity of the person who certifies, i. e. it must shew that he is the person by whom the certificate is required by law to be made. Here then is no evidence, that the supreme court, of the county of Jefferson, sits in the first district, nor that the judge of that district, is either the sole, chief, or presiding judge of Jefferson county.

It is therefore ordered, adjudged and decreed, that the judgment be annulled, avoided, and reversed, and the ease remanded with directions to the judge, not to admit the record of the judgment, in evidence. The costs of the appeal to be borne by the appellee.