Miller v. Reinhart

By the Court.

Benning, J.

delivering the opinion.

[1.] The question is, was the decision admitting the certificate right?

Proceedings of naturalization have to be recorded — “ which -proceedings shall be recorded by the Clerk of the Court,” is the language of the Act of Congress on the subject. (2 Story’s Laws U. S. 851.)

The certificate does not give the words of any part of the record. The certificate seems to be a statement of what, hr the Clerk’s opinion, is the legal import or effect of the different particulars cf which the record may consist.

For the admission of such a certificate as evidence, the naturalization laws make no provision — none exists by the Com.mon Law. But it was said, that the admission of such a certificate is authorized by an Act of this State — the Act of 1830, to amend an Act to regulate the admission of evidence, &c. That Act declares, that the certificate of any public officer, under his hand and seal of office, if one is attached thereto, in relation to any matter or thing pertaining to their respective offices, or which, by presumption of law, properly pertains thereto, shall be admitted as evidence before any Court of Law or Equity in this State, &c. (Pr. Dig. 220.)

The Act of which this is amendatory, is the Act of 1817, “to regulate the admission of evidence,” &c. Avhich declares, that the certificate or attestation of any public officer, either of the State or of any county thereof, shall give sufficient validity or authenticity to any copy or transcript of any record, document or paper of file in the respective offices under their control, to admit the same as evidence, &c. (Ib. 215.)

This Act is not repealed by the Act of 1830. That Act, by the title of it, is restricted to the amending only of this Act. The Act of 1830, therefore, was intended, it is to be presumed, to reach cases which were not reached by the Act of 1817. And it is easy to conceive that such cases may exist. For example, a record may be consumed by fire. In such a case, the Clerk cannot give a certified copy of the record, but he may give a certificate that no such record remains under his control. And this certificate would, I think, be admissible under the Act of 1830. So, a list of names officially filed in a public office, may not have on it a particular name. In such a case, the officer presiding over that office, cannot give a certified copy of that name, but he may give a certificate that no such name'appears on the list. And this I think he is authorized to do by the Act of 1830.

Perhaps, too, the Act of 1830 was intended to dispense with the necessity that a transcript of the whole of any record or other writing must be produced, before any part can become admissible, and to confer the privilege of using a certified copy of only a part of a record or other writing.

But whatever the intention of the Act of 1830 may have been, we think that the intention was not, in the case of Clerks, to authorize them to give a statement, in brief, of what, in their opinion, may be the legal import or effect of the particulars of the record. We think that when there is a record and a judgment, the certificate,' even under the Act of 1830, ought to give a copy of at least the judgment, or of some one or more of the other parts of which the record may consist.

And therefore, we are obliged to "consider this certificate insufficient, and the decision admitting it as evidence erroneous; for this certificate gives a copy, neither of the judgment nor of any other part of the record.

And this decision is not in conflict with Campbell vs. Gordon, (6 Cranch, 176,) for in that case the Court had before it not only the certificate of the Clerk — it had also the minutes of the Court.

This certificate being, as we think, not legal evidence, its admission as legal evidence makes it necessary that a new trial should be had. Accordingly, one is granted.

As to the rejection of the marriage settlement, we merely say, that in our opinion, the existence of that settlement ought not to be allowed to deprive the husband of the right of administration. His appointment to such administration cannot, as far as we can see, at all effect any right créated by that settlement. If this be so, the settlement, as evidence, was merely irrelevant.