Secondary Evidence.

tary of the treasury, under the seal of the de- | Bridge and Bank Company v. Evans, 4 Wash. C. partment, that he is register, is not evidence. It C. R. 480. must appear not only that the officer who gives the certificate, has the custody of the papers, but that he is authorized by law to certify them, and the register is not so authorized; a sworn copy should have been produced. Bleecker v. Bond, 3 Wash. C. C. R. 529.

915. If an instrument, supposed to be forged, is destroyed or suppressed by the prisoner, the tenor may be proved by parol evidence; the next best evidence is the rule; therefore, if there be a copy which can be sworn to, that is the next best evidence. United States v. Britton, 2 Mason's C. C. R. 464.

916. The subscribing witness to a bond being dead, proof of the handwriting of the attesting witness, if unaided and opposed by other evidence, is sufficient to establish the execution of the bond. Murdock & Co. v. Hunter's Representative, 1 Brockenb. Ć. C. R. 135.

910. A translation, by the secretary of the board of land commissioners of Florida, whose duty it was to translate Spanish documents given in evidence before the board of commissioners, of a certified copy of a Spanish grant of land in Florida, which had been produced to the board, was properly admitted as evidence of the grant: satisfactory proof having been given to the court 917. The letters of the agent of congress, rethat the original grant could not be found in the sident abroad during the revolutionary war, adrecords of East Florida; and that this was the dressed to that body, relative to the business of best evidence, from the nature of the case, which his trust, the resolutions of congress on the subcould be given of the existence of the original ject, and certified copies of the same from the paper, lost or destroyed. United States v. De-office of the secretary of state, are evidence in a laspine's Heirs et al., 12 Peters, 654.

suit against the agent, instituted by individuals claiming damages for acts done as a public agent. Bingham v. Cabot, 3 Dall. 19; 1 Cond. Rep. 19.

911. Where all books, papers, and vouchers of a clerk in the treasury, who had been a disbursing officer, relating to his disbursements and agency, have been destroyed by fire, without any 918. But it is a principle, that memorandums, fault of his, the case is, of necessity, open to the made by a person in the ordinary course of his admission of secondary evidence; and under the business, of acts which his duty, in such busigeneral rule of evidence, he might be requiredness, requires him to do for others, are, in case to produce the best evidence which the nature of his death, admissible evidence of acts so done. of the case, under the circumstances, would ad- A fortiori, the acts of a public officer are so admit. This rule, however, does not require of a missible, though they may not be strictly official, party the production of the strongest possible if they are according to general usage, and the evidence, but must be governed, in a great mea-ordinary course of his office. Nicholls v. Webb, sure, by the circumstances of the case, and must 8 Wheat. 326; 5 Cond. Rep. 451. have a bearing upon the matter in controversy, and must not be such as to leave it open to the suspicion or presumption that anything left behind, and within the power of the party, would, if produced, make against him. United States v. Laub, 12 Peters, 1.

919. Therefore, the books of a notary public, proved to have been regularly kept, are admissible in evidence, after his decease, to prove a demand of payment, and notice of non-payment of a promissory note. Ibid.

920. In Louisiana, when a contract having 912. Where a warrant of survey was issued, subscribing witnesses to it is proved to have been and a report made thereon, if the vessel was made out of the state, the state courts presume unfit to perform the voyage, and the vessel and the witnesses reside at the place where the concargo were ordered to be sold, the captain can- tract was made, and are not subject to process not be admitted as a witness to prove the condi- issued out of those courts. They therefore allow tion of the vessel at the time of the survey, and secondary evidence to prove the contract. This that she was unfit for the voyage. The proceed-being the settled doctrine of the supreme court ing was judicial, and the warrant and the report must be produced; but the facts contained in the report may be proved by other evidence. Robinsons v. Clifford, 2 Wash. C. C. R. 1.

913. The fact that there is an erasure or interlineation apparent on the face of the deed, does not of itself avoid it; to produce this effect, it must be shown to have been made under circumstances that the law does not warrant: parol evidence is let in for this purpose, and the mischief, if any, will equally press on both sides. Speake et al. v. The United States, 9 Cranch, 28; 3 Cond. Rep. 244.

914. The reasons which forbid the admission of parol evidence to alter or explain written agreements, and other instruments, do not apply to those contracts implied by operation of law, such as that which the law implies with respect to the endorser of a note of hand. Susquehanna

of Louisiana, the district court of the eastern district of Louisiana properly admitted evidence of the handwriting of the witnesses to a deed of trust, which had been executed out of Louisiana, to go to the jury. Wilcox et al. v. Hunt, 13 Peters, 378.

921. The rule is, that secondary or inferior shall not be substituted for evidence of a higher nature which the case admits of. The reason of that rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser. "The ground of the rule is a suspicion of fraud." But before the rule is applied, the nature of the case must be considered, to make a right application of it; and if it shall be seen that the fact to be proved is an act of the defendant, which from its nature can be concealed from all others except him

Hearsay Evidence.

Hearsay Evidence.

was then expected to arise about the heirship; a letter written about the time, stating the pedigree of the claimants, was not considered as excluded by the rule of law which declares, that declarations relating to pedigree, made post litem motam, cannot be given in evidence. Ibid.

943. A witness swore that she resided in Petersburg, Virginia, and that bishop Madison resided in Williamsburg, Virginia; that while she resided in Petersburg, she had seen bishop Madison, and was acquainted with his daughter only by report; that she never had seen her or Mr. Scott, but recollects to have heard of their marriage, in Petersburg, as she thought, before the death of her father; that she could not state from whom she heard the report, but that she had three cousins who went to college at the time that she lived in Petersburg, and had no doubt that she had heard them speak of the marriage; that she heard of the marriage of Miss Madison before her own marriage, as she thought, which was in 1810; that she was, as she believed, in 1811, in Williamsburg, and was told that Mr. Madison was dead. Held, that so much of this evidence as goes to prove the death of Mr. Madison, was admissible on the trial, and ought not to have been excluded by the court. Lessee of Scott et al. v. Ratliffe et al., 5 Peters,

81.

944. A witness cannot be admitted to prove what was said by a witness who is dead, relative to a conversation on a former trial between the plaintiff and some of the defendants. As the evidence was not given between the same parties, it could only be received as hearsay. Boardman and others v. The Lessees of Reed and Ford and others, 6 Peters, 328.

err in rejecting this evidence. Ellicott v. Pearl, 10 Peters, 412.

948. The evidence was not merely hearsay; but hearsay not to matters of general reputation, a common interest among many. Ibid. 949. The general rule is, that evidence to be admissible, should be given under the sanction of an oath, legally administered, and in a judicial proceeding, depending between the parties affected by it, or those who stand in privity of estate or interest with them. Ibid.

950. Hearsay is admitted in case of pedigree, of prescriptive rights and customs, and some other cases of a public, or quasi public nature. In cases of pedigree, it is admitted upon the ground of necessity, or the great difficulty, and sometimes the impossibility of proving remote facts of this sort by living witnesses. But in these cases, it is only admitted when the tradi tion comes from persons intimately connected, or in close relation with the family, or from sources of a kindred nature, which, in a general sense, may be said to import verity: there being no lis nota, or other interest to affect the credit of their statement. Ibid.

951. The deposition of a witness now dead, as to pedigree, may be read for that purpose only; though it was taken in another cause, between other parties, and on a different subject. Lessee of Banert v. Day, 3 Wash. C. C. R. 243.

952. Depositions taken between other parties on the same point, may be read to prove pedigree; as hearsay, or declarations; the witness being dead. Boudereau v. Montgomery, 4 Wash. C. C. R. 186.

Conn et al. v. Penn et al.

953. Reputed boundaries are often proved by the testimony of aged witnesses, and the hear say evidence of such witnesses has been ad945. That boundaries may be proved by hear-mitted, to establish lines in opposition to the calls say, is a rule well settled, and Яe necessity or of an ancient patent. propriety of which is not now questioned. Some Peters' C. C. R. 496. difference of opinion may exist as to the application of this rule, but there is none as to its legal force. Ibid.

954. From necessity, in cases of pedigree, hearsay evidence is admissible. But this rule is limited to the members of the family, who 946. Landmarks are frequently found of may be supposed to have known the relationperishable materials, which pass away with the ship which existed in the different branches. generation in which they are made. By the im- The declaration of these individuals, they being provement of the country, and from other causes, dead, may be given in evidence to prove pedithey are often destroyed. It is therefore im-gree. And so is reputation, which is the hearportant in many cases, that hearsay or reputa- say of those who may be supposed to have tion should be received to establish ancient known the fact, handed down from one to anoboundaries. But such testimony must be perti-ther, evidence. As evidence of this description nent and material to the issue between the parties. If it have no relation to the subject, or if it refer to a fact which is immaterial to the point of inquiry, it ought not to be admitted. Ibid.

947. At the trial of a writ of right in the circuit court of Kentucky, a witness was offered to prove that one Moore, who was dead, and whose name was put down as one of the chain-carriers in making the original survey, and who was subsequently present when lines were run upon the same land, had declared, that a certain corner was the corner made by the surveyor, Kincaid; when the original survey was made, and the line run by the direction of the surveyor, for the original survey. The circuit court rejected the evidence. Held, that the circuit court did not

58*

must vary with the circumstances of each case, it is difficult, if not impracticable, to deduce from the books any precise and definite rule on the subject. Stein v. Bowman, 13 Peters, 209.

955. It is not every statement or tradition in a family that can be admitted as evidence. The tradition must be from persons having such a connection with the party to whom it relates, that it is natural and likely, from their domestic habits and connections, they are speaking the truth, and that they could not be mistaken. Ibid.

956. The declarations offered as evidence were made subsequent to the commencement of the controversy, and, in fact, after the suit was commenced. It would be extremely dan4 M

Depositions.

gerous to receive hearsay declarations in evi-gence to procure the attendance of the witness. dence respecting any matter, after the contro- Pettibone v. Derringer, 4 Wash. C. C. R. 215. versy has commenced. This would enable a 967. It is no objection to reading the deposi party, by ingenious contrivances, to manufacture tion of a witness, living in another state above evidence to sustain his cause. It is, therefore, one hundred miles from the court, taken under essential, when declarations are offered as evi-a rule of court, that the witness had been in the dence, that they should have been made before place where the court is held, during the sitting the controversy originated, and at a time and of the court, but without the knowledge of the under circumstances when the person making party offering the evidence. Query, If he had them could have no motive to misrepresent the known it, would it have varied the case? Ibid. facts. Ibid.

Depositions.

DEPOSITIONS TAKEN UNDER THE JUDICIARY ACT
OF 1789.

in evidence, and on the hearing in the circuit | equity, where the direct interrogatories have court these depositions were read: afterwards, been fully answered, and death or some inevi on an appeal to the supreme court, the decree table accident occurs, which, without fault on of the circuit court was reversed, and by the either side, prevents a cross-examination. Query, decree of the reversal the parties were permit- How would this be law? Crocker v. Lewis, 3 ted to proceed de novo. When the case was Sumner's C. C. R. 1. again heard in the circuit court, the defendant objected to the reading of the depositions; asserting that the decree of reversal annulled the written certificate of the parties for the admis. sion of testimony. By the Court:-The consent to the depositions was not limited to the first hearing, but was co-extensive with the cause. The words in the decree of reversal, that the parties may proceed de novo, are not equivalent to a dismission of the bill without prejudice; nor could the court have understood them as af-Rep. 466. fecting the testimony in the cause; or setting aside the solemn agreement of the parties. The testimony is still admissible to the extent of the agreement. Vattier v. Hinde, 7 Peters, 252.

978. No one can take the benefit of a verdict, or of depositions, who would not have been prejudiced by them, had they been otherwise. Boudereau v. Montgomery, 4 Wash. C. C. R. 186. 979. But depositions taken between other parties on the same point, may be read to prove the pedigree, as hearsay, or declarations, the witnesses being dead. Ibid.

980. There are two modes of taking depositions under the act of congress. By the first, notice in certain cases is not necessary, but the forms prescribed must be strictly pursued. By a subsequent part of the section, depositions may be taken by a dedimus potestatem, according to common usage. In Virginia, the laws of the state are to be referred to on the subject of notice. Those laws do not authorize notice to an attorney at law: the words attorney, in the act of assembly, means attorney in fact. An attorney at law is not compellable to receive notice; but he may consent to receive, or he may waive it, and shall not afterwards be permited to object to the want of it. Buddicum v. Kirk, 3 Cranch, 294; 1 Cond. Rep. 535.

981. The letters of the plaintiff to the secretary of state, containing applications for a patent, and specifications, certified under the seal of that department, as papers remaining in that office, were properly admissible in evidence. Pettibone v. Derringer, 4 Wash. C. C. R. 215.

982. Depositions taken in evidence, without a commission or rule of court, in the state of New York, more than one hundred miles from Philadelphia, but conforming in all respects to the thirtieth section of the judiciary act of 1789, may be read in evidence. Ibid.

983. A deposition taken under the thirtieth section of the judiciary act of 1789, cannot be read in evidence, unless the judge certifies that it was reduced to writing, either by himself or by the witness in his presence. Ibid.

984. A deposition in perpetuam, which has not been recorded according to the law of the state where it is taken, is not competent evidence in the courts of the United States. Gould v. Gould, 3 Story's C. C. R. 516.

986. That the deponent is a seaman, on board a gun-boat in harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting, is not a suffi cient reason for taking his deposition de bene esse, under the judiciary act of September 24th, 1789, ch. 20. The Samuel, 1 Wheat. 9; 3 Cond.

987. If it appear on the face of a deposition, taken under the act of congress, that the officer taking the same was authorized by the act, it is sufficient, in the first instance, without any proof that he was such officer. Ruggles v. Bucknor, 1 Paine, 358.

988. Objections to the competency of the witness, whose deposition is taken under the thirtieth section of the judiciary act of September 24th, 1789, ch. 20, should be made at the time of taking the deposition, if the party attend and the objections are known to him, in order that they may be removed; otherwise he will be presumed to waive them. United States v. One Case of Hair Pencils, 1 Paine's C. C. R. 400.

989. It seems, that it is no objection to the competency of a deposition, that it is not signed by the witness. Ketland v. Bisset, 1 Wash. C. C. R. 144.

990. A deposition taken under the thirtieth section of the judiciary act of September 24th, 1789, ch. 20, cannot be read in evidence, unless the judge, before whom it is taken, certify that it was reduced to writing by himself, or by the witness in his presence. Pettibone v. Derringer, 4 Wash. C. C. R. 215.

991. Where the certificate of a magistrate taking a deposition, stated it to have been written in his presence, without saying by whom, and it appeared that the substance of it had been reduced to writing by the deponent, ten days before, at a different place, when the magistrate was not present, such deposition is not admissible in evidence. United States v. Smith, 4 Day, 121.

992. To authorize a deposition, taken under the act of September 24th, 1789, ch. 20, to be read in evidence, all the ceremonies prescribed by the act must be observed. The act requires that the deposition shall be retained by the magistrate taking it, until he deliver the same with his own hand, into the court for which it is taken, or shall, together with the reason of its being taken, notice, &c. be by him sealed up and directed to such court. North Carolina Cases, 81.

993. The authority given by the act of congress of the 24th September, 1789, ch. 20, to take depositions of witnesses, in the absence of the opposite party, is in derogation of the rules of the common law, and has always been con985. Semble: a deposition may be admitted instrued strictly: and, therefore, it is necessary to