Lead Opinion

Evidence — Certificate of public officer. I think the paper signed by J. M. Thacher, acting commissioner of patents, was clearly inadmissible. It is not and does not purport to be a copy of any record or paper existing in the pension office, but is simply the statement of a fact within the knowledge of the gentlemen who signed it. The plaintiff was entitled to have that fact proved in the usual way, and could not legally be deprived of the privilege of cross-examination by the form in which the statement was put. I think the verdict must be set aside.

Concurrence Opinion

By Rev. Stats. U.S., p. 166, sec. 882, it is provided, that "Copies of any books, records, papers, or documents, in any of the executive departments, authenticated under the seals of such departments respectively, shall be admitted in evidence equally with the originals thereof."

It is clear that this section does not make the certificate in question evidence, since it relates only to copies, and I know of no other statute which could apply to the case. In the absence of statutory regulations, this certificate must be governed by the ordinary rules of evidence. It is not under oath, neither has it any of the other requisites to make it admissible as a deposition.

SMITH, J. The certificate should have been rejected. It was the conclusion drawn by the certifying officer from the examination of the records in his office, and possibly he may have been mistaken. Hanson v. So. Scituate, 115 Mass. 336. The statute authorizes him to certify to the correctness of copies of records in his office. What effect shall be given to such copies is a question for the court when put in evidence. When a party desires to prove the negative fact that there is no record, he must do so in the usual way, — by the deposition of the proper officer, or by producing him in court so that he may be sworn and cross-examined as to the thoroughness of the search made. If the summoning of such officer to testify in relation to the public records at the call of a suitor shall be found impracticable by reason of interfering with his public duties, the remedy must be found in further legislation. The court cannot disregard the plain rules of evidence to meet the difficulty.

Verdict set aside and a new trial granted. *Page 621