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INSTRUMENTS OF EVIDENCE
3095–3119. Records and public documents.
3098. Public statutes.
3099. Private statutes.
3101. Parties to the suit.
3107. Other public documents.
3109. Proof by producing the record itself. 3110–3114. Proof by copy of the record.
3119. Foreign judgments, including those of another state.
3122: When in the hands of the party offering them. 3123–3126. When in the hands of the adverse party.
3124. When notice to produce must be given.
3128. When lost.
3130. Proof by subscribing witness.
3135. Proof of the instrument when it is not produced. 3136-3138. The effect of private writings when proved.
3137. Ambiguities, when they may be explained. 3139-3143. Shop books and other mercantile books.
3140. The requisites of an original entry.
3094. The instruments used in evidence are written or unwritten. In the first class are records and public documents, private writings, and books of ac
count. The last class or oral evidence includes the testimony given, vivá voce, either in open court or before a magistrate by deposition.
3095. In considering records and public documents, it will be proper to inquire into their nature, the manner of proving them, and their effect, and the nature and proof of foreign laws and records.
3096. Among the most certain instruments for ascertaining facts may be mentioned records and public documents made evidence by the legislative enact
A record is a written memorial made by a public officer authorized by law to perform that function, and intended to serve as evidence of something written, said, or done. Records may be divided into those which relate to the
, proceedings of the legislature, the courts, and other public documents.
3097. The constitutions of the Union and of the several states, and the legislative acts of the congress of the United States and of the several states of the Union, are records of the highest kind, and the printed journals of congress have been so considered. These acts are general and public or private, as we observed when treating of the nature of laws.
3098. The courts will judicially take notice of the political constitution and form of government of their own country; and public statutes, which are supposed to exist in the memories of all, need no proof; but for certainty of recollection, which, notwithstanding the presumption of law, no man can retain, constant reference is had to the records themselves, or to the copy of them contained in a book printed by public authority. Printed copies of public documents transmitted to congress by the President of the United States and printed by the printer to congress are evidence of such documents.”
3099. Private statutes, resolutions, and other private acts are to be proved according to the provisions of the common law, either by means of a copy proved on oath to have been examined by the roll itself, or by an exemplification under the great seal. But in several of the states the printed copies of the laws and resolves of the legislature, published by its authority, are held competent evidence, and it is sufficient prima facie that the book purports to have been so printed. Sometimes a clause is introduced into a statute that it shall be taken notice of as if it were a public act; its mode of proof in that case is the same as of a public statute.*
3100. Judicial records include verdicts and judgments, and they will be examined with reference to the parties to the suit, to the matter directly in issue, and to a decision upon the merits.
3101. Those persons who institute actions for the recovery of their rights and those against whom they are instituted are the parties to the actions. The term parties, as has already been explained, includes all persons who are directly
As to what is included in a record, see the following cases : The trial list is not a part of the record, Moore v. 1 Penn. 29; nor is a bond for costs, Montgomery v. Carpenter, 5 Ark. 264; nor a writing sued on, Williams v. Duffey, 7 Humphr. Tenn. 255; Clark v. Gibson, 2 Ark. 109, unless made so by oyer or otherwise. See Pelham v. State Bank, 4 Ark. 202; nor is an affidavit made to supply a part of the record which has been lost, Troy v. Reilly, 4 Ill. 119, 259; nor are papers presented to a court, and acted upon merely as matters of evidence, Kirby v. Wood, 16 Me. 81; nor the registry of a mechanic's lien, Davis v. Church, 1 Watts & S. Penn. 240; nor is the state of demand, in the court for the trial of small causes, in New Jersey, Vandyke v. Bastedo, 3 Green, N. J. 224. See also Davidson v. Murphy, 13 Conn. 213; Hodges v. Ashurst, 2 Ala. N. 8. 101; Davidson v. Slocum, 18 Pick. Mass. 464; Officers v. Fisk, 8 Miss. 403; Ex parte Bishop, 4 Mo. 219; Lenox v. Pike, 2 Ark. 14; Updergraff v. Parry, 4 Penn. St. 291; McLendon v. Jones, 8 Ala. n. s. 298; United States v. Gamble, 10 MÒ. 457; Child v. Risk, 1 Morr. Iowa, 439.
* Radcliff v. U. States Ins. Co., 7 Johns. N. Y. 38; 1 Phillipps, Ev. 318. * Biddis v. James, 6 Binn. Penn. 321 ; Young v. Bank of Alexandria, 4 Cranch, 388. * Beaumont v. Mountain, 10 Bingh. 404; Woodward v. Cotton, 1 Crompt. M. & R. Exch. 44, 47.
interested in the subject matter in issue who have a right to make defence, control the proceedings, or appeal from the judgment. Strangers are persons who do not possess those rights.”
When a judgment has been rendered between the parties, they are bound by it; and to give full effect to the principle by which the parties are held bound by it all persons who are represented by the parties, and claim under them, or are privy to them, are equally concluded by the same proceedings.
3102. By privity is meant the mutual or successive relationship to the rights of property, and privies are classified according to the manner of this relationship. They are privies in estate, as, donor and donee, lessor and lessee, and joint tenants; privies in blood, as, heir and ancestor, and coparceners; privies in representation, as, testator and executor, administrator and intestate; privies in law, as, where the law without privity of blood or estate casts land upon another as by escheat. But all these kinds of privity are reduced to three, namely, privity in estate, privity in blood, and privity in law. The reason why persons standing in this relation to the litigating party are bound by the proceedings to which he is a party is that they are identified with him in interest, and whenever this identity exists, all are alike concluded. Privies are therefore estopped from litigating that which is conclusive upon him with whom they are in privity. The rule with regard to privies is that its operation must be mutual upon both parties; both litigants must be concluded, or the proceedings cannot be set up as conclusive for either.?
3103. There are several exceptions to the rule, which requires the identity of the parties in order to make the record evidence. The principal are the following:
There is an exception to the rule in cases usually termed proceedings in rem, which includes not only judgments of condemnation of property as forfeited, or as prize in the admiralty, but also decisions of other courts directly upon the personal status, state, or relations of the party, such as marriage, divorce, bastardy, settlement, and the like. Judgments of this kind are binding and conclusive, not only upon the parties actually litigating in the cause, but upon all others; because in most cases of this kind every one who can be affected by such judgment has a right to appear and assert his own rights by becoming a party to the proceedings.
Verdicts and judgments upon subjects of a public nature, such as customs and the like, are evidence between persons who are not parties to the proceedings; because in most or all of such cases evidence of reputation is admissible.
When a judgment is to prove a collateral fact, it may be admitted, although the parties are not the same. Of this there are numerous examples: thus, in order to prove the legal infamy of a witness, the record of his conviction may be shown; the record is evidence to let in proof of what was sworn to at the trial, or to show that a suit was determined, and the like. A further instance to illustrate the difference between the admissibility of a judgment as a fact, and as evidence of ulterior facts, may be mentioned the case where a judgment has been rendered against a sheriff for the misconduct of his deputy, it is evidence against the latter of the fact that the sheriff has been compelled to pay'
6 Duchess of Kingston's Case, 20 How. St. Tr. 538, n.
8 1 Starkie, Ev. 27, 28; 1 Greenleaf, Ev. 2525; 1 Phillipps, Ev. 328. A decree of di. vorce is conclusive of the fact that the ies are divorced, but as affecting the rights of third parties does not conclusively establish the facts for which the divorce was granted. Burlen v. Shannon, 3 Gray, Mass. 387. 1 Phillipps, Ev. 327, 328.
the amount awarded, and for the cause alleged; but it is not evidence of the fact upon which it was founded, namely, the misconduct of the deputy, unless he was notified of the suit, and was required to defend it.10
A judgment may be used in favor of a stranger against one of the parties, to prove the existence of certain facts, or solemn declarations of judicial declarations of the party contained in the record. But, in such case, it is not conclusive as establishing the fact, but it is to be considered as the deliberate admission of the party. Example: in the case of libel by a wife for a divorce on the ground of cruelty, the record of the conviction of the husband for an assault and battery upon her, founded upon his plea of guilty, is admissible to prove the judicial admission of the fact.11
3104. Å distinction must be remembered between a verdict and a judgment. A verdict is sometimes admissible in evidence to prove the finding of some matter of reputation, or custom, or particular right. But although in this case the verdict and not the judgment is the material thing to be shown, yet unless a judgment has been rendered upon it, it is not admissible, because it may have been set aside by granting a new trial, or the judgment upon it may have been arrested. As a judgment is not entered on a verdict upon an issue out of chancery, such a verdict may be given in evidence without a judg'ment.12
3105. To make a judgment conclusive upon the parties, it is required that it should have been rendered upon the matter directly in issue, and not on a thing incidentally brought in controversy during the trial. A record can be conclusive only on matters actually tried; on things material and traversable ; for, if they were not so, they would not be brought into judgment. The general rule is clearly laid down, and may now be considered a rule of law, founded not less upon adjudged cases than it is upon reason: first, that the judgment of a court of concurrent jurisdiction directly upon the point is, as à plea, a bar; or, as evidence, conclusive between the same parties, upon the same matter, directly in question in another court. Second, that the judgment of a court of exclusive jurisdiction directly upon the point is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally
, in question in another court for a different purpose.
3106. To render a judgment conclusive between the parties, the matter in issue must have been decided upon the merits ; for if the plaintiff discontinue his action, or become nonsuit, or for any other cause there has been no judgment of the court upon the matter in issue, the proceedings are not conclusive. And if the declaration was so essentially defective that it would have been adjudged bad on demurrer, or if the trial went off for a technical defect, or because the debt was not due when the action was commenced, or because the court had not jurisdiction, or the plaintiff was temporarily disabled to sue, the judgment will be no bar to a future action.15
10 Tyler v. Ulmer, 12 Mass. 166; see Kip v. Bingham, 6 Johns. N. Y. 158; Griffin v. Brown, 2 Pick. Mass. 304; Key v. Dent, 14 Md. 86 ; Burkhalter v. Ector, 25 Ga. 55.
11 Bradley v. Bradley, 11 Me. 367; Woodruff ». Woodruff, ii. 475. 12 Buller, Nisi P. 234; Donaldson v. Jude, 2 Bibb, Ky. 60; see Delvan v. Worke, s Hawks, No. C. 36; State v. Grayton, 3 id. 187; Murphey v. Guion's Ex’rs, 1 Car. Law Rep. 94; Ragan v. Kennedy, 1 Overt. Tenn. 94; Shaeffer v. Kreitzer, 6 Binn. Penn. 430; Felter v. Moliner, 2 Johns. N. Y. 181.
13 A judgment is conclusive evidence of the facts which the jury must necessarily have found to warrant a verdict. Town v. Lamphere, 34 Vt. 365.
14 Per De Grey, C. J. in Duchess of Kingston's Case, 20 How. St. Tr. 538; Harvey v. Richards, 2 Gall. C. C. 299; Hidsham v. Dulleban, 4 Watts, Penn. 183, per Gibson, C. J.; Pearce v. Gray, 2 Younge & C. 322. 15 Sweigart v. Berk, 8 Serg. & R. Penn. 305 ; Wood v. Jackson, 8 Wend. N. Y. 9; Hughes v. Blake, 1 Mas. C. C. 515; Lane v. Harrison, Munf. Va. 573; Dixon v. Sinclair, 4 Vt. 354; N. Eng. Bank v. Lewis, 8 Pick. Mass. 113; Estill v. Taul, 2 Yerg. Tenn. 467; Jay v. Carthage, 48 Me. 353; Gerrish v. Pratt, 6 Minn, 53.
3107. Other public documents are very numerous, but the principle of their admission in evidence is generally the same; it is that being made by public authority by men appointed for the purpose, they are presumed to be true. And because they are located in particular places and cannot be removed without public inconvenience, certified copies or examined copies are allowed to be given in evidence; and, in general, the originals cannot be demanded. To this there is an exception; when the hand writing is required to be proved, as in the case of an indictment for perjury, in an answer in chancery, or of making depositions, or where a man has become bound of record to perform an act, the original must be produced.
Among the documents which are made evidence may be mentioned the journals of either branch of the legislature, official registers kept by authority of law, such as books of assessments of public taxes, ó books of the post-office and customs, prison registers, enrollment of deeds, the registers of births and marriages made pursuant to the laws of any of the United States, 18 the registry of vessels at the custom-house, 19 the books which contain the official proceedings of corporations and matters concerning their property if the public in general are interested in it,20 and the records of city councils and other municipal bodies. 21
Wills are proved in the United States before courts or jurisdictions specially established by the legislatures of the respective states, or by their constitutions. These are variously denominated probate courts, surrogates' courts, orphans' courts, registers' courts, etc. The usual mode of proving a will is by calling the attesting witnesses, or, where there are none and the law allows it, other witnesses, to prove the hand writing of the testator, and when it is known, to show how he executed the paper purporting to be a will
. This is generally done upon notice to the heir at law or other persons having an interest in the estate. At common law the effect of this mode of probate is conclusive until reversed as to personal property, but not as to real ; 22 though in most of the states of the Union the effect is the same on the real that it is on the personal property. A court of common law will not take notice of a will as a title to personal property until it has thus been proved, and letters testamentary, which is a grant of authority by the officer appointed by law to the executor named in the will to execute the same.
Letters of administration are an instrument in writing under the seal of the court which takes the probate of wills, and a decree that such letters shall be and have been granted to certain persons entered in the book of records of the court. The letter of administration is in the nature of an exemplification of this record, and is received without other proof. It authorizes the grantee, called the administrator, to collect, manage, settle, and administer the personal estate of the intestate, and, until repealed by lawful authority, the administrator is vested with all the power which the intestate had in the personal estate which
18 Doe v. Seaton, 2 Ad. & E. 171; Doe v. Cartwright, 2 Ad. & E. 182; Ry. & M. 62; Rockendorff v. Taylor, 4 Pet. 349.
17 State v. Thomas, 3 Bos. & P. 188; United States v. Johns, 4 Dall. 412.
18 Jackson v. King, 5 Cow. N. Y. 237; Richmond v. Patterson, 3 Ohio, 368; Sumner v. Sebeck, 3 Me. 223; Jacock v. Gilliam, 3 Murph. No. C. 47; Milford v. Worcester, 7 Mass. 48.
19 United States v. Johns, 4 Dall. 412.