Steere v. Tenney , 50 N.H. 461 ( 1871 )

Sargent, J.

The statute of the United States provides 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 the said records are or shall be taken.” Brightly’s Dig., p. 265, sec. 9. Sec. 10, in same chapter, provides a way in which other public records may be authenticated, as follows: “ All records and exemplifications of office books, which are or may be kept in any public office of any State, not pertaining to a court, shall be proved or admitted in any other court or office, in any other State, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept, or of the governor, the secretary of State, the chancellor, or the keeper of the great seal of the State, that the said attestation is in due form, and by the proper officer ; and the said certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk or prothonotary of the said court, who shall certify under his hand and the seal of his office that the said presiding justice is duly commissioned and qualified; or, if the said certificate be given by the governor, the secretary of State, the chancellor, or keeper of the great seal, it shall be under the great seal of the State in which the said certificate is made. And the said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the States from whence the same are or shall be taken.”

It will be seen, by comparing the certificates in this case with the above provisions, that the records are here authenticated in both the ways provided for above; and the authentication is sufficient if Tennessee was a State in the Union, one of the United States at the time ; or if it was a territory, or in place of a territory, the same would hold true, — for, by sec. 11 of the same chapter, the preceding provisions are made applicable to territories as well as to States.

But it is said that Tennessee was not a State in the Union at the 'time this judgment was rendered, and therefore that the judgment must be considered and treated as a foreign judgment, the judgment of a foreign State, and must be authenticated by the great seal of such foreign State like other foreign records.

But let us examine this proposition. Conceding that Tennessee was .a foreign State, a foreign government, at the date of the judgment, yet at the time these copies were obtained (April 12,1867), and long before that time, that State was back in the Union again, — for she was represented in the U. S. senate by two senators in 1866, who, I think, were admitted in 1865, and also by members in the lower house of congress, — and the question arises, How shall copies of records, made while the State was a foreign State, be authenticated .after the same State becomes a member of the Union — one of the United States ? The foreign government has been overcome by force, or voluntarily given up and surrendered by the people, and superseded by a new government: how shall the records be authenticated in such, case ?

Take, for example, Texas: or suppose St. Domingo were annexed in some way to this country, and should afterwards become one of the States of this Union: how would its records be authenticated ? that is, how would some old record, that was made while it was a foreign State,, but which is to be used in one of our State courts after the same has been united to this" nation and become one of the United States, need to be authenticated ? As a foreign nation it has ceased to exist; its power is gone. Its courts no longer exist; its laws are no longer in force. It has and can have no seal to authenticate any record, nor any officer to keep or to use such seal. The old records remain as evidence of what was done under a former government, but the only way they could be authenticated would be by the proper officer, and by the seal of the new government which was in power at the time the authentication is made. The only authentication of the records of Texas that were made when it was a province of Mexico, and which were kept as provincial records, would now be by the officers and the seal of the present State of Texas.

But this point becomes immaterial here, bécause we find not only that Tennessee was a State in the Union at the time these copies were authenticated (April, 1867), about which there is no question, but also at the time the records were made (Eeb’y, 1865).

Burnside’s expedition through East Tennessee was accomplished in the fall of 1863 and early in 1864. Moore’s Rebellion Record, vol. 7, pages 273, 407, and 501, Doc. Before this, Andrew Johnson had been appointed military governor of the State of Tennessee by the president of the United States, and was issuing orders from the “ executive office,” Nashville, Tenn., as early as November 18, 1863. Moore’s Reb. Rec., vol. 8,-p. 7, Diary.

On the 26th of January, 1864, said Johnson, as governor of said State, issued a proclamation in which he declares his belief “ that a majority of the people of the State are ready and desire to return to their allegiance to the government of the United States, and to recognize and restore the State government to the exercise of its rightful functions as a State of the American union under the constitution of the United States,” and his intention to open and hold an election in said State to fill the offices of justices of the peace, sheriffs, constables, trustees, circuit and county court clerks, registers, and tax collectors. He therefore orders an election of said officers in the various counties in said State, on the first Saturday in March (then) next (1864), and declares that it is for the purpose of bringing the State of Tennessee within the provisions of the constitution of the United States.

He then states that this election is ordered in the State of Tennessee as a State of the Union, under the federal constitution. Moore’s Reb. Rec., vol. 8, p. 340, Doc.

But there is some internal evidence connected with the records themselves, which indicates under what jurisdiction and authority the court was sitting. The original written submission between the parties was stamped with a “ U. S. revenue stamp,” duly cancelled; the report-of the arbitrators was stamped in the same way. This would indicate that this business was done in a court recognizing the authority of the United States, and not in some foreign government. It will also be observed that the laws constituting this court, and prescribing the forms of business and the manner of trying causes, were published by authority of the legislature of the State of Tennessee in 1858, when Tennessee was a State of our American union.

The exceptions must, we think, be overruled. There was all the evidence of the existence of a legal court and judges legally appointed which is required in any case. The defendant certainly cannot complain that he was allowed to go behind the judgment, and put in evidence that the debt was never due and that it had been paid. It becomes immaterial whether the plaintiff had reason to object or not to this part of the evidence, since the court has found against the defendant on all these issues.

The ruling admitting the judgment as prima facie evidence is in accordance with the holding in Vogt v. Ticknor, 48 N. H. 242. But it was held that the same might be impeached ; and if evidence was to be received, as it was received aliunde, to impeach the judgment, then evidence to sustain it must also be competent. The evidence offered tended to explain the record rather than to impeach or contradict it, and was competent. In George v. Farr, 46 N. H. 171, it is held that debt cannot be maintained on a bond given to secure the performance of an award of certain arbitrators therein named, where the parties afterwards substituted another and a different submission for the one specified in the bond. But it is there held that a parol agreement so substituted may be sufficient whereon to found an action of assumpsit. But where a submission was partly in writing and partly by parol, and an award was made by the referees in pursuance of the stipulations of both, we see no reason why assumpsit might not have been maintained upon the submission and award. But here judgment had been rendered upon the award, and this case was debt on that judgment. It would be no impeachment of a judgment to show that it was founded upon an award which was properly made upon a submission which was partly in writing and partly by parol.

Whether, at the time this judgment was rendered, the State of Tennessee was to all intents and purposes a State in the American union, becomes immaterial, since from the facts of history it is evident that it was held at that time in some way under the power and jurisdiction of the United States, and the copies are properly authenticated.

Judgment on the verdict.