he owned on the day of his death. Letters of administration are never granted when the deceased left a will, except when the will is annexed to them.

Writs may be proved by the production of the originals with the officers' returns thereon as well as by copies.23

3108. Records are proved by the mere production of the record, without more, or by copy.

The records of the court in which a suit is pending prove themselves by their mere production.2

24

3109. As a record is located in a particular place and it cannot be removed, the record itself can be produced only when the cause is in the same court whose record it is, or when it is subject to the proceedings of another court.

The judgments of inferior courts may be proved by producing from the proper custody the book containing the original record.25 The short minutes. of the magistrate on his docket are admissible when, as is usually the case in these courts, no extended record is made up.26

3110. Copies of records are of three kinds: exemplifications, copies made by an authorized officer, and sworn copies.

3111. An exemplification is a perfect copy of a record so far as relates to the matter in question and certified as to its correctness, first, under the great seal, or, secondly, under the seal of the particular court where the record remains. The term exemplification in its strict legal sense ought to be understood as synonymous with inspeximus, and as importing something beyond the ordinary certified copy under seal. When produced it is usually admitted, even upon an issue of nul tiel record, as sufficient evidence.29

28

3112. Copies of a record made by an authorized officer, certified under the seal of the court, are in general received as evidence. It is not in such case required to prove the seal, for the courts recognize without proof the seal of state, and the seals of the superior courts of justice, and of all courts established by public statutes.30 In this country the courts do not seem to make any distinction between an exemplification and a certified copy under seal. But the certificate must be of the whole record, and not of a mere extract; and when the certificate is that it is a copy of the record, it will be presumed to be of the whole record.32

An office copy of a record is a copy authenticated by an officer intrusted for that purpose; it is admitted in evidence upon the credit of the officer without proof that it has been actually examined.33 In the same court and in the same cause, an office copy is equivalent to the record, but in another court in another

23 Day v. Moore, 13 Gray, Mass. 522.

24 Prescott v. Fisher, 22 Ill. 390; Harrison v. Kramer. 3 Iowa, 543.

lett, 47 Me. 396.

25 Odiorne v. Bacon, 6 Cush. Mass. 185; Miller v. Hale, 26 Penn. St. 432; State v. Bart26 McGrath v. Seagrave, 2 All. Mass. 443; Townsend v. Way, 5 All. Mass. 426. "Buller, Nisi P. 227; 1 Gilbert, Ev. by Lofft, 19; 3 Inst. 173; 1 Phillipps, Ev. 384, 385; 1 Greenleaf, Ev. & 501.

28 Page's Case, 5 Coke, 54.

29 Vail v. Smith, 4 Cow. N. Y. 71; Pepoon v. Jenkins, 2 Johns. Cas. N. Y. 118.

30 Den v. Vreelandt, 2 Halst. N. J. 555; Chase v. Hathaway, 14 Mass. 222.

31 Edmiston v. Schwartz, 13 Serg. & R. Penn. 135; Ingham v. Crary, 1 Penn. 389; but see Rex v. Bellamy, Ry. & M. 174; Thompson v. Chauveau, 6 Mart. N. s. La. 458.

32 Voris v. Smith, 13 Serg. & R. Penn. 334. In several of the states, the form of these certificates is regulated by statute. See Vance v. Reardon, 2 Nott & M'C. So. C. 299; Thompson v. Chauveau, 6 Mart. N. s. La. 458; Commonwealth v. Phillipps, 11 Pick. Mass. 28; Barry v. Rhea, 1 Overt. Tenn. 345; Burton v. Pettibone, 5 Yerg. Tenn. 443. A certificate that it appears to the officer that a judgment has been entered, etc., is insufficient. Wilcox v. Ray, 1 Hayw. No. C. 410. This form of certificate is technically called a constat. Coke, Litt. 225; Page's Case, 5 Coke, 54. See McGuire v. Sayward, 22 Me. 230. 33 2 Phillipps, Ev. 131: Buller, Nisi. P. 229.

cause, the copy must be proved; unless in those cases where it is made the duty of the officer to furnish copies; in this last case they are admitted in all courts under the same jurisdiction. It may be stated generally that in the United States an officer having legal custody of the public records is, ex officio, competent to certify copies of their contents.

34

3113. An examined copy is one made by a witness who has compared the copy with the original. This comparison may be made by the witness himself, or by the witness and another person reading and comparing the two; but it is not necessary that the persons examining should exchange the papers, and read them both ways. Proof by parol that such a copy was so made, and its production in court accompanied with further evidence that the record from which the copy was taken was found in the proper place of deposit, or in the hands of the officer in whose custody the records are kept, is sufficient evidence of the record.

3114. When the record is lost and it is ancient, its existence and contents may sometimes be presumed; whether ancient or not, when it is proved to be lost, it may be supplied by secondary evidence.

3115. When the record of a judgment has been established in either of the modes above mentioned, it is conclusive between the parties and their privies, upon the same matter directly in question in any other suit. It is a general principle that such decision is binding and conclusive upon all other courts of concurrent power. This principle pervades not only our own, but all other systems of jurisprudence, and has become a rule of universal law founded on the soundest policy. It is the maxim that when once a thing has been adjudged, it shall be considered thereafter for ever settled. Res judicata, say the civilians, facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto cur

vum.

35

3116. In order to give to a judgment the force of the res judicata, there must be a concurrence of the four conditions following, namely:

Identity in the thing sued for.

Identity in the cause of action; for example, I have claimed a right of way over Blackacre, and a final judgment has been rendered against me because I could not establish such a right of way: afterward I purchase Blackacre, and as owner I bring a suit for its recovery; the first decision shall not bar my claim, when I sue as owner of the land, and not for an easement over it, as I did in the first suit, which I claimed as a right appurtenant to my land White

acre.

Identity or privity of parties and of persons to the action; this is a consequence of the rule of natural justice, ne inauditus condemnetur, that no man shall be condemned unheard.

Identity of the quality in the persons for and against whom the claim is made; for example, an action by Peter to recover a horse, and a final judgment against him, is no bar to an action by Peter, administrator of Paul, to recover the same horse.

The constitution of the United States, and the amendments to it, declare that no fact, once tried by a jury, shall be otherwise re-examinable in any court of the United States than according to the rules of the common law.36

Much discussion has taken place respecting the effect of a former recovery when different actions in tort have been brought successively in relation to the

34 Lynde v. Judd, 3 Day, Conn. 499; Hill v. Packard, 5 Wend. N. Y. 387; Winn v. Patterson, 9 Pet. 663; Fyson v. Kemp, 6 Carr. & P. 71.

35 2 Kaimes, Eq. 367; 10 Toullier, Dr. Civ. Fr. n. 65, et seq. 36 Parsons v. Bedford, 3 Pet. 433.

same chattel; for example, where an action of trespass is brought, and the defendant sets up a title to the chattel, and the issue is found for him, and the plaintiff afterward brings an action of trover for the same chattel, he is clearly barred, because the title to it was settled in the first action. In the like manner, a judgment in trover for the defendant, upon the merits, is a bar to an action for money had and received, for money arising from the sale of the same goods. But whether a judgment obtained by the plaintiff in trespass without satisfaction is a bar to an action of trover for the same chattel is a point upon which different opinions have been entertained.39

38

3117. The proof of a record by copy establishes the fact that such a record exists, and such other facts as the record is competent evidence to prove. Thus the copy of the record of a deed proves that the deed is recorded, and consequently that subsequent purchasers have notice of it. But the original_deed is nevertheless the best evidence to prove the conveyance, and must be produced if in existence. The record is itself only secondary evidence for this purpose." But if the original deed is lost, the record is evidence to prove its execution. Those records which record facts and not merely copies of papers are competent evidence to prove the facts which they record.

3118. Courts do not take judicial notice of foreign laws, they must be proved as facts;" and when such laws come in question, the party who seeks advantage of them is required to produce an authenticated copy, for it is presumed all civilized governments will allow their officers to give authentic copies of their laws when requested. Before the party can offer any inferior evidence, he must prove such request and refusal; on its being shown that such a refusal has been made, other evidence of the existence of the law may be given.12

If an exemplification under the seal of the foreign state cannot be had, such laws must be verified by some high authority which the law respects not less than an oath, or by an oath or affirmation. Such a law may be proved to be a true copy by a witness who has compared and examined it with the original, or by a certificate of an officer properly authorized by law to give a copy, which certificate must itself be duly authenticated."

When our government has promulgated a foreign law or ordinance of a public nature as authentic, this is held to be sufficient evidence of its existence.* 44

Foreign unwritten laws, usages, and customs must of necessity be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the laws, customs, and usages, under oath or affirmation; this will be sufficient unless the law was a written one, and when it is alleged that it is so, such allegation must be proved by the person making it.46

45

The several states of the Union, in all matters not surrendered to the general government by the national constitution, are considered as foreign to each other, they being each sovereign and independent. Strictly, then, their laws and public documents, when wanted in another state, must be proved as foreign

$7 Putt v. Roster, 2 Mod. 218; Putt v. Rawstern, 3 Mod. 1.

38 Kitchen v.

Campbell, 3 Wils. 304; 2 W. Blackst. 827.

39 1 Greenleaf, Ev. 533, and the cases cited in the note.

40 Morton v. Webster, 2 All. Mass. 352; Ord v. McKee, 5 Cal. 515.

41 Palfrey v. Portland R. R., 4 All. Mass. 55.

42 Church v. Hubbart, 2 Cranch, 237.

43 Church . Hubbart, 2 Cranch, 237; Consequa v. Willings, 1 Pet. C. C. 225; Lincoln v. Battelle, 6 Wend. N. Y. 182; Raynham v. Canton, 8 Pick. Mass. 296.

44 Talbot v. Seaman, 1 Cranch, 37; Radcliffe v. U. S. Ins. Co., 7 Johns. N. Y. 38.

45 Church v. Hubbart, 2 Cranch, 237.

46 Dougherty v. Snyder, 15 Serg. & R. Penn. 87; 2 La. 154.

VOL. II.-2 C

217

laws, and accordingly in some of them such proof has been required." But in some other states the courts have relaxed the rule, and they and the courts of the national government have considered that the connection, intercourse, and constitutional ties which bind the several states together require some relaxation of the strictness of this rule, and they have accordingly held a printed volume, purporting on its face to contain the laws of a sister state, to be admissible as prima facie evidence to prove the statute laws of that state. 48

The relations which reciprocally exist between the national government on the one side and the several states of the Union composing the United States on the other, are not considered as foreign, but as domestic. For this reason the courts of the general government take judicial notice of all the public laws of the several states whenever they are called upon to consider and apply them; and the courts of the respective states in like manner take judicial notice of all public acts of congress, including those which relate to the District of Columbia, exclusively, without any formal proof. Those statutes which do not relate to the public, but are strictly private, must be proved in the usual

way.

50

3119. Foreign judgments are of two classes:

51

49

First. Judgments rendered by the courts of a foreign state or nation. A judgment rendered out of the United States or their territories by a court de jure, or even a court de facto, in a matter within its jurisdiction, when the parties litigant have been notified and have had an opportunity of being heard, either establishing a demand against the defendant or discharging him from it, is binding and of full force.

The modes of authenticating such foreign judgments are either by an exemplification of a copy under the great seal of a state, or by a copy proved to be a true copy by a witness who has compared it with the original, or by a certificate of an officer properly authorized by law to give a copy. In this last case the certificate itself must be duly authenticated.52

Second. Judgments rendered in one of the United States or of the territories of the Union.

Although the several states composing the United States for many purposes cannot be considered in the light of foreign states to each other, yet they are so in all things not surrendered to the national government by the constitution;53 but still their mutual relations are rather those of domestic independence than of foreign alienation. The constitution has wisely provided that "full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and that congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."54

By virtue of this constitutional authority congress has passed several laws regulating the manner in which the laws of the states, records, and public documents shall be proved.

47 Brackett v. Norton, 4 Conn. 517; Hampstead v. Reed, 6 Conn. 480; Packard v. Hill, 2 Wend. N. Y. 411.

48 Biddis v. James, 6 Binn. Penn. 321; Ashley v. Root, 4 All. Mass. 504; Crake v. Crake, 18 Ind. 156. In many of the states this provision is made by statute.

49 Young v. Bank of Alexandria, 4 Cranch, 384; Owings v. Hall, 9 Pet. 607; Papin v. Ryan, 32 Mo. 21.

60 Leland v. Wilkinson, 6 Pet. 317.

51 Bank of North America v. McCall, 4 Binn. Penn. 371.

52 Church v. Hubbart, 2 Cranch, 237; Sir Yeaton v. Fry, 5 Cranch, 335; Gardere v. Col.

Ins. Co., 7 Johns. N. Y. 514; Thompson v. Stewart, 3 Conn. 171.

53 Mills v. Durgee, 7 Cranch, 481; Hampton v. McConnell, 3 Wheat. 234.

54 U. S. Const. art. 4, s. 1.

56

The first act passed upon this subject" enacts "that the acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto; 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 57 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."

As this act provided for only one kind of records, and did not apply to the territories, it was found necessary to enact another," which extends to "exemplifications of office books" and to the territories. It enacts "that, from and after the passage of this act, all records and exemplifications of office books, which are or may be kept in any public office of any state not appertaining 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 state from whence the same are or shall be taken."

"That all the provisions of this act, and the act to which this is a supplement, shall apply as well to the public acts, records, office books, judicial proceedings, courts, and offices of the respective territories of the United State1, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states."

Although no prudent practitioner will depart from the mode pointed out by the acts of congress, yet it seems that this method of authentication is not exclusive of any other which the states may deem proper to adopt."

65 Act of Congr. May 26, 1790; 1 Stat. 122.

56 This act and the provision in the constitution are held not to apply to the judgments of justices of the peace. Thomas v. Robinson, 3 Wend. N. Y. 267; Silver Lake Bank v. Harding, 5 Ohio, 545; but see Brown v. Edson, 23 Vt. 435.

57 The certificate of a deputy clerk in the absence of the clerk is not sufficient. Morris v. Patchin, 24 N. Y. 394.

58 Act of Congr. March 27, 1804; 2 Stat. 298.

59 Kean v. Rice, 12 Serg. & R. Penn. 203. As to the kind of cases to which these acts of congress extend, it has been observed that they "do not extend to judgments in criminal cases, so as to render a witness incompetent in one state who has been convicted of an infamous crime in another. The judicial proceedings, referred to in these acts, are also generally understood to be the proceedings of courts of general jurisdiction, and not those which are merely of municipal authority; for it is required that the copy of the record