White v. Strother, 11 Ala. 720

White v. Strother

11 Ala. 720 | Ala. | 1847

GOLDTHWAITE, J.

1. The act of Congress does not prescribe the form of certificate by which the clerk of a court in a sister State shall certify the record to make it evidence in another State, or indeed that any certificate shall be made by that officer. The record is proved whenever there is the attestation of the clerk with the seal of the court annexed, if there be a seal, together with the certificate of the presiding jndge, that the attestation is in due form. 'It is therefore the certificate of the judge which establishes the validity of the form pursued by the clerk, and it can make no difference what this form is, when the subject matter attested shows itself a matter of record. Every objection to the attestation of the clerk must therefore resolve itself into a mere question of form, whenever his name and his office is disclosed on the record by any mode of attestation, and is concluded by the judge’s certificate. For example, if a deed or othdr matter, not on & prima fade of record, was the subject of exemplification, the certificate of the jud^e would not be sufficient to let in the copy, but the law making it a record would also have to be shown. [Mitchell v. Mitchell, 3 S. & P. 81.] But when the subject matter is a judgment, or probate of a a will, the presumption is, that these are every where matters of record. This seems well settled by numerous decisions here and elsewhere. [McRae v. Stokes, 3 Ala. R. 401; Lee v. Hamilton, Ib. 529; Ferguson v. Harwood, 7 Cranch, 408; Smith v. Blagg, 1 John. Ca. 238.] The case of Allen v. Allen, Minor, 240, referred to, is not a decision on the form of the clerk’s certificate, though so stated in the head note, and was probably decided on the ground there was no *724sufficient certificate of a judge, as the one set out in the report. is evidently defective. We think there was no error in allowing the exemplification to be read as evidence.

2. The question asked the witness as to the* reputation in the defendant’s family of the relation between Silvey and the other slaves, does not come within the rule of hearsay evidence, as applicable to proof of pedigree. Hearsay evidence is never admissible, even in such cases, except to prove the declarations of deceased persons. [Phil, on Ev. 238; Greenl. Ev. § 103.] The reputation of relationship, if it existed, in the family, must have arisen from the knowledge of the fact, in some of the members, and their subsequent declarations to others, or from the acts and conduct of the slaves themselves, or of the whole members of the family, towards them, and in either case the individuals making the declaration, or witnessing the acts and conduct, would furnish better evidence.

3. We must not confound this reputation, which is evidently nothing more than hearsay, with the acts and conduct either of the slaves themselves towards each other, or of the family towards them. Such conduct and acts would, we think, be proper evidence to go to a jury, on the same principle as obtains in cases kindred to those of pedigree, where family conduct is the subject of inquiry.. The tacit recognition of relationship, the disposition and devolution of property, and many similar facts and circumstances from which the opinion and belief of those who must be presumed to know the fact, may be inferred, is certainly entitled to much consideration. [Greenl. Ev. § 105.] If the witness had been asked, what the treatment of these slaves in regard to a supposed relation between them was, in' the family, it would in our judgment have been entirely proper, within the rule just quoted. It is to this class of evidence that the conduct of the children towards their supposed mother belongs. If the.former called the latter mother, we can perceive no just ground to exclude the evidence, any more than to exclude proof that the latter had nursed them when infants.

On the whole case, the only error seems to be the allow-*725anee of the qustion as to the general reputation in the family of the relation between the slaves.

For this error the judgment is reversed, and the cause remanded.