of having it given before the examination of the CHAP. 10. witness de bene esse, although no objection to his competency should then be made; for when a witness has testified in the cause without a release, it may at least be questionable whether a subsequent release ought to be deemed sufficient to render him competent to testify anew. Depositions, moreover, are often taken in the absence of the adverse party; and though he be present, he may not be apprised of the interest of the witness: in which cases, he will be entitled at the hearing to object to the reading of the deposition; and for this reason, also, it may be advisable to release the witness beforehand.

III. DOCUMENTARY EVIDENCE.

The principles which regulate and determine the competency, the authentication and the effect of written evidence in courts of admiralty, being essentially the same as those which prevail in other courts, any general disquisition upon the subject would be unsuitable in this place—a summary notice of a few particulars being all that the occasion requires.

The several states of the American Union being, as such, independent and foreign with respect to each other, it was deemed necessary by the framers of the Constitution of the United States to guard against the inconveniences likely to result from this relation, in judicial proceedings, by ordaining that "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state;" and empowering Congress,

Legislative records of states.

acts, judicial and

the several

VOL. 2. "by general laws," to "prescribe the manner in which such acts, records and judicial proceedings shall be proved, and the effect thereof(a)."

In pursuance of this authority, it was, at the second session of Congress, enacted, "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 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 record 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 (b)."

And, by a supplemental act, it is further enacted, "That 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 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

(a) Constitution, art. 4, § 1.

(b) Act of May 26, 1790, ch. 11; 1 Stat. at Large, 122. .

be kept; or of the governor, the secretary of state, CHAP. 10. the chancellor or 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 the court, shall be farther 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 seal of the state in which such 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 shall be taken." And it is, by the same act, further declared "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 States, as to the public acts, records, office books, judicial proceedings, courts and offices of the several states(a)."

acts.

Legislative acts are sufficiently authenticated by Legislative having the seal of the state affixed to the copies thereof, no other formality being required by the statute; and in the absence of any proof to the con

(a) Act of March 27, 1804, ch. 56; 2 Stat. at Large, 298.

VOL 2 trary, the seal will be presumed to have been affixed by an officer having the custody thereof, and having competent authority to do the act(a).

Records of courts.

Force and effect of

judgments

of other

states.

In authenticating the records and judicial proceedings of a state court, the directions of the act are to be strictly pursued; and a certificate from the presiding judge, that the person whose name is signed to the attestation is clerk of the court, and that the signature is his proper handwriting, without stating that the attestation is in due form, has accordingly been held insufficient(); but whatever may be the form of the attestation, the required certificate, that it is in due form, is conclusive evidence that it is so(c).

With respect to the force and effect of a judg in the courts ment rendered in one state, in the courts of other states, it has been a vexed question whether the judgment is to be regarded as a foreign judgment, and so inconclusive; or as a domestic judgment, and, as such, conclusive upon the rights of the parties: but after much controversy, this question has long been settled. The Constitution, in conformity with a principle of the common law, founded in comity, secures the admissibility of such records as evidence, but leaves it to Congress to prescribe, first, the tests of their genuineness; and, secondly, their legal effect,

(a) The United States v. Amedy, 11 Wheaton's R., 392 (6 Curtis's Decis. S. C., 638).

(b) Drummond's Administrators v. Magruder & Co.'s Trustees, 9 Cranch's R., 222 (3 Curtis's Decis. S. C., 290).

(c) Ferguson v. Harwood, 7 Cranch's R., 408 (2 Curtis's Decis. S. C., 596).

as evidence. Congress has exercised this power; and, in regard to the latter branch of it, have made a duly authenticated record, out of its proper state, equivalent to the record, in its proper state. It is therefore evidence of the highest nature, viz., record evidence, and not to be contradicted but by a plea of nul tiel record. Not that a record thus authenticated is held to be absolutely, and under all circumstances, conclusive, so as in all cases necessarily to preclude every other plea; for this would be to give it an efficacy superior to what the original would possess in the state where the judgment was pronounced; but the principle established is, that the record of a judgment of a state court, duly authenticated, shall have the same credit, validity and effect- and that the same pleas in a suit on it, and none others, would be good in the courts of every other state, as in the courts of the state where it is rendered. The proper inquiry, therefore, in every case, is, what would be the effect of the record in that state(a).

The constitutional and legislative provisions in question are not, however, to be understood as imposing any restriction upon the power of the states to legislate upon the remedy in suits on the judgments of other states, except so far as the merits of the original suit are concerned. The judgment is to be regarded as a debt of record, not examinable

(a) Mills v. Duryee, 7 Cranch's R., 481 (2 Curtis's Decis. S. C., 631); Hampton v. M'Connel, 3 Wheaton's R., 234 (4 Curtis's Decis. S. C., 207); Mayhew v. Thatcher, 6 Wheaton's R., 129 (5 Curtis's Decis. S. C., 3); Hopkins v. Lee, 6 Wheaton's R., 109 (Curtis's Decis. S. C., 26).

CHAP. 10.