Bissell v. Edwards, 5 Day 363

Bissell v. Edwards

5 Day 363 | Conn. | 1812

Lead Opinion

Swift, J.

The question in this case, is, whether the copy of a record, from a justice of the peace, in the state of Vermont, certified by him, as justice of the peace, is admissible evidence, in a court in this state ? The records of courts, from a neighbouring state, must be proved according to the *366rules of the common law, or the act of congress ■ But this is conformable to neither; and is merely in the form required to make it evidence in that state. The act of congress requires, that the records, and judicial proceedings of courts of any state, shall be proved, 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 other presiding magistrate, as the case may be, that the attestation is in due form. Where courts of justices of the peace, are courts of record, they come within the act of congress : but this record is not certified according to the requirements of that act-It does not appear, but that there was a clerk of this court, and a seal. Of course, the court cannot know, that the record is duly certified; and the Superior Court property rejected it, as evidence.

If the act of congress liad been complied with, this record would have been admissible. In those states where justices of the peace hold courts of record ; where' they are the sole judges, and have no other persons to be their clerks ; they are the presiding magistrates, and clerks of their own courts, and may certify their records, in a manner conformable io the act of congress.

After attestation of the record, a justice of the peace may certify, that he is the presiding magistrate, and clerk of the court ; that there is no seal, and that the attestation is in usual form ; and then subscribe it, as justice of the peace. This would be a literal compliance with the act, and the copy of the record, so certified, would be admissible evidence.

I am of opinion, therefore, that a new trial ought not to be granted.

Mitchell, Ch. J., Reeve, Trumbull, Smith and Brain-ard, Js., severally concurred.

Concurrence Opinion

Baldwin, J.

I concur in the opinion, that a new trial ought not to be advised, because the record of the justice was not duly certified ; but I do not agree, that it ought to have been certified, according to the provisions of the act of congress.

*367The constitution of the United Stales, does, indeed, require, that full faith and credit shall he given, in each state, to the public acts, records, and judicial proceedings of every other state ; and provides, that congress may, by law, prescribe the mariner in which they shall be proved, and the effect thereof. Until congress shall prescribe the mode of proof, they are to be proved to the satisfaction of the court; and perhaps, according to the mode required by the common law, for proving foreign judgments ; and when so proved, full faith is to be given to them.

It then becomes a question, whether congress have prescribed a mode by which the records of justices shall be proved ? The act of congress provides, that the records, and judicial proceedings of the Courts of any state, shall be proved, by the attestation of the clerk, and the seal of the court, if there is one, and a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form. It is obvious to me, that these provisions do not embrace, and were never meant to extend to, the records of a justice of the peace. The whole provision, evidently, refers to a court, having a clerk, probably, a seal, and a presiding magistrate. A justice of the peace may, indeed, for some purposes, be considered as performing the office of clerk, as well as judge ; because he makes records, and gives copies. This is rather an incident to the office of justice, than a separate character.

But I cannot conceive, that congress meant to prescribe, that a justice should, as clerk, certify his record, and then, as presiding magistrate, gravely certify, that the certificate he made, as clerk, is in due form. I am rather of opinion, that congress did not mean to include the records, or judicial proceedings of justices of the peace, who, in most of the states, are not considered as courts of record.

The defendant was not, therefore, bound to prove the record, according to the act of congress ; but he was bound to prove it, in a way, which the common law would sanction and approve. This he has failed to do.

Edmond and Ingersold, Js., concurred in this opinion.

New trial not to be granted.