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Sec. 899. [When original records are lost or destroyed.] When the record of any judgment, decree, or other proceeding of any court of the United States is lost or destroyed, any party or person interested therein may, on application to such court, and on showing to its satisfaction that the same was lost or destroyed without his fault, obtain from it an order authorizing such defect to le supplied by a duly certified copy of the original record, where the same can be obtained ; and such certified copy shall thereafter have, in all respects, the same effect as the original record would have had. [R. S.]
Act of March 3, 1871, ch. 111, 16 Stat. L. established rule as to secondary evidence. 474.
Cornett v. Williams, (1873) 20 Wall. (U. S.) Rule as to secondary evidence. — This Act 226. * provides for putting in a permanent form Lost records in bankruptcy may be supproof of the contents of judicial records lost plied under the provisions of sections 899, or destroyed, such proof to take the place of 900. In re Friedlob, (1879) 11 Chicago Leg. ile original records for all purposes." There N. 189, 9 Fed. Cas. No. 5,118, is nothing in this Act which changes the
Sec. 900. [Same subject.] When any such record is lost or destroyed, and the defect cannot be supplied as provided in the preceding section, any party or person interested therein may make a written application to the court to which the record belonged, verified by affidavit, showing such loss or destruction; that the same occurred without his fault or neglect; that certified copies of such record cannot be obtained by him; and showing also the substance of the record so lost or destroyed, and that the loss or destruction thereof, unless supplied, will or may result in damage to him. The court shall cause said application to be entered of record, and a copy of if [it] shall be served personally upon every person interested therein, together with written notice that on a day therein stated, which shall not be less than sixty days after such service, said application will be heard; and if, upon such hearing, the court is satisfied that the statements contained in the application are true, it shall make and cause to be entered of record an order reciting the substance and effect of said lost or destroyed record. Said order shall have the same effect, so far as concerns the party or person making such application and the persons served as above provided, but subject to intervening rights, which the original record would have had, if the same had not been lost or destroyed. [R. S.]
Act of March 3, 1871, ch. 111, 16 Stat. L. March 3, 1871. The proceeding to restore 475.
records does not come within the general A proceeding to restore records is sui term of practice or pleadings in the courts. generis, and is to be governed by the statute which obviously has reference to the mode of authorizing it, and not by the state statute. commencing and trying causes. It was not the intention of Congress by the Newman, (1872) 3 Biss. (U. S.) 307, 24 State ('onformity Act (June 1, 1872, 17 Stat. Fed. Cas. No. 14,262. L. 196) to repeal or abrogate the Act of
Sec. 901. [Same subject.] When any cause has been removed to the Supreme Court, and the original record thereof is afterward lost, a duly certified copy of the record remaining in said court may be filed in the court from which the cause was removed, on motion of any party or person claiming to be interested therein; and the copy so filed shall have the same effect as the original record would have had if the same had not been lost or destroyed. [R. S.]
Act of March 3, 1871, ch. 111, 16 Stat. L. 475.
Sec. 902. [Same subject.] In any proceedings in conformity with law to restore the records of any court of the United St-tes which have been or may
be hereafter lost or destroyed, the notice rem? m?r he served on any nonresident ifte district in which such court is...! snywhere within the juris
diction of the United States, or in any foreign country; the proof of service of such notice, if made in a foreign country, to be certified by a minister or consul of the United States in such country, under his official seal. [R. S.] This section was amended so as to read by fire on the ninth of October, eighteen hun
above given by section 1 of the Act of dred and seventy-one, under the three precedJan. 31, 1879, ch. 39, 20 Stat. L. 277, entitled ing sections, the notice required may be "An Act to amend the Revised Statutes of served upon any non-resident of said district the United States relating to the records and anywhere within the jurisdiction of the files of district and circuit courts of the United States, or in any foreign country, the United States lost or destroyed."
proof of the service of such notice, if made Originally this section was as follows: in a foreign country, to be certified by a
* SEC. 902. In the proceedings to restore minister or consul of the United States in the records of the circuit and district courts such country, under his official seal.” Act of of the northern district of Illinois, destroyed March 18, 1872, ch. 56, 17 Stat. L. 40.
Sec. 903. [Same subject.] A certified copy of the official return, or any other official paper of the United States attorney, marshal, or clerk, or other certifying or recording officer of any court of the United States, made in pursuance of law, and on file in any department of the government, relating to any cause or matter to which the United States was a party in any such court, the record of which has been or may be lost or destroyed, may be filed in the court to which it appertains, and shall have the same force and effect as if it were an original report, return, paper, or other document made to or filed in such court; and in any case in which the names of the parties and the date and amount of judgment or decree shall appear from such return, paper, or document, it shall be lawful for the court in which they are filed to issue the proper process to enforce such decree or judgment, in the same manner as if the original record remained in said court. And in all cases where any of the files, papers, or records of any court of the United States have been or shall be lost or destroyed, the files, records, and papers which, pursuant to law, may have been or may be restored or supplied in place of such records, files, and papers, shall have the same force and effect, to all intents and purposes, as the originals thereof would have been entitled to. [R. S.]
This section was amended “so as to read court to which it appertains, and shall have as ” above given by section 2 of the Act of the same force and effect as if it were an Jan. 31, 1879, ch. 39, 20 Stat. L. 277.
original return made to said court; and in Originally this section was as follows: any case in which the names of the parties,
“ SEC. 903. A certified copy of the official and the date and amount of the judgment or return of the district attorney, clerk of the decree shall appear from such returns, it circuit or district court, or the marshal of shall be lawful for the court in which they the northern district of Illinois, made in are filed to issue the necessary process to enpursuance of law, and on file in the Depart force such degree of [decree or] judgment in ment of Justice, relating to any cause in the same manner as if the original record was either of said courts to which the United before said court.” Act of March 18, 1872, States was a party, the record of which was ch. 56, 17 Stat. L. 41. destroyed in said fire, may be filed in the
Sec. 904. [Same subject.] That whenever any of the records or files in which the United States are interested of any court of the United States have been or may be lost or destroyed, it shall be the duty of the attorney of the United States for the district or court to which such files and records belong, so far as the judges of such courts respectively shall deem it essential to the interests of the United States that such records and files to [sic] be restored or supplied, to take such steps, under the direction of said judges, as may be necessary to effect such restoration or substitution, including such dockets, indices, and other books and papers as said judge[s] shall think proper. Said judges may direct the performance, by the clerks of said courts respectively and by the United States attorneys, of any duties incident thereto; and said clerks and attorneys shall be allowed such compensation for services in the matter and for
lawful disbursements as may be approved by the Attorney-General of the United States, upon a certificate by the judges of said courts stating that such claim for services and disbursements is just and reasonable; and the sum so allowed shall be paid out of the judiciary fund. [R. S.]
This section was amended “so as to read for that purpose may direct the performance, as" above given by section 3 of the Act of by the clerks of said courts, and by the Jan. 31, 1879, ch. 39, 20 Stat. L. 277.
United States attorney for said district, of Originally this section was as follows: any duty incident thereto; and said clerks
* Sec. 904, It shall be the duty of the dis and said district attorney shall be allowed trict attorney for the northern district of such compensation and disbursements for Illinois to take such steps as may be neces
services rendered under this section (in cases sary to restore the records and files of the where no compensation is now provided by circuit and district courts of said district law for such services) as may be allowed by which were destroyed by fire on the ninth of the Attorney-General, and certified to be just October, eighteen hundred and seventy-one, and reasonable by the judge of the court in and in which the United States is interested, which said services are rendered, and the so far as the judges of said courts, respec amount so allowed shall be paid out of the tively, shall deem it essential to the interests juaiciary fund: Provided, however, That the of the United States that said records and sum allowed the clerks of said courts shall files be restored; and the judges of said not exceed the sum of twelve thousand dolcourts, respectively, are authorized to direct Jars, and the entire compensation of the such steps to be taken as, in their opinion, United States attorney for such services shall shall be deemed advisable to restore the judg not exceed the sum of six thousand dollars." ment dockets and indices of said courts, and Act of March 18, 1872, ch. 56, 17 Stat. L. 41.
Sec. 905. [Authentication of legislative acts and proof of judicial proceedings of States, etc.] The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, 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 presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, 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 which they are taken. [R. S.]
Act of May 26, 1790, ch. 11, 1 Stat. L. 122; nexed. U. S. v. Johns, (1806) 1 Wash. (U. Act of March 27, 1804, ch. 56, 2 Stat. L. S.) 363. 299.
A printed pamphlet, without seal, purStatutes of state or territory. — The stat porting to be the law of a territory, is inadute book offered in evidence was an edition missible. Craig 1. Brown, (1816) Pet. (C. of the laws of Pennsylvania, purporting to be C.) 352. published by authority of the legislature of Judicial proceedings - Proceeding supplethat state, and deposited in the department mental to execution. -- The statute is not reof state of the United States under the Act stricted to the case of judgments. Where the of Congress requiring the secretary of state laws of a state provide for the examination to obtain copies of the laws, and was ad of a debtor, in a proceeding supplemental to mitted in evidence in a court of the District execution, such examination constitutes a of Columbia though not authenticated in the judicial proceeding, and admissions of the manner provided for by this statute. Com debtor, properly authenticated, are evidence mercial, etc., Bank r. Patterson, (1882) 2 against him in a suit in another state. In re Cranch (C. C.) 346.
Rooney, (1871) 6 Nat. Bankr. Reg. 163, 20 This statute requires no other or further Fed. Cas. No. 12,032. formality to authenticate an act of a state The final settlement of an exeoutor, before legislature than the seal of the state; the the appropriate state tribunal, containing an seal itself is supposed to import absolute ite ved statement of the accounts of the rerity, and it must always be presumed that
executor with the estate of his testator, givit was affixed by a person having the custody ing debts and credits in full, and finding a of the seal and competent authority to do the
balance in the hands of the executor, which act. U. S. 0. Amedy, (1826) 11 Wheat. he was ordered to distribute according to the
will of the testator and the laws of the case, (U. S.) 392. An act of a state was admitted in evidence
constitutes a judicial proceeding within the when certified by the clerk of the executive
meaning of this statute. Fitzsimmons 1.
Johnson, (1891) 90 Tenn. 416. council, and the seal of the state was an
A discharge under a state insolvent law is Certificate of judge or magistrate.- I copy a judicial proceeding. Channing v. Reiley, of a judgment of a state court certified by (1835) 4 Cranch (C. C.) 528.
the clerk alone, without the certificate of a Recording foreign wills. — A state statute judge, chief justice, or presiding magistrate provides that authenticated copies” oi that the attestation was in due form of law, foreign wills shall be recorded, in order that cannot be admitted in evidence. Northwestthey may have the same effect in passing ern Mut. L. Ins. Co. v. Stevens, (C. C. A. title to lands in that state as is given to the 1895) 71 Fed. Rep. 258. See also Smith v. recording of domestic wills. Such wills must Brockett, (1897) 69 Conn. 492; Gardner v. be authenticated in the manner prescribed by Lindo, (1802) 1 Cranch (C. C.) 78. this section as to the authentication of The certificate must show that the person records, and a certificate that the attestation signing it as a judge was, at the time of so of the clerk is in due form, made by the signing, the judge, chief justice, or presiding governor of the state, acting through his magistrate of the court in which the judgprivate secretary, and not by the judge, chief ment is of record. U. S. e. Biebusch, 1 Fed. justice, or presiding judge of the court where Rep. 213. the will was admitted to probate, is insuffi It is not necessary that the official charcient. Harrison 1. Weatherby, (1899) 180 acter of the certifying judge or magistrate Ill. 418.
shall be certified by the governor under the Transcript of minutes. An exception that great seal of the state, nor that the clerk of the court excluded docket entries duly certi the court shall certify under his hand and fied cannot be maintained, as the writing seal of office that the certifying judge or produced did not purport to be a record, but magistrate is duly commissioned and quala mere transcript of minutes extracted from ified. Kinseley v. Rumbough, (1887) 96 N. the docket of the court. Ferguson v. Har Car. 193. See also Taylor v. Carpenter, wood, (1813) 7 Cranch (U. S.) 408.
(1846) 2 Woodb. & M. (U. S.) 1. A judgment of a justice of the peace in The record of the Supreme Court of a Pennsylvania was admitted in evidence in state, attested by the clerk, with the seal anan action of debt upon the judgment, where nexed, in which the judge states himself to such judgment had been entered of record in one of the judges of the Supreme Court the Court of Common Pleas of the county, of Tennessee,” is not duly authenticated. and the record of the court was certified by This does not import that he was the sole i the prothonotary and the presiding judge, judge, chief justice, or presiding judge of according to this statute. Hade v. Brother that court. Stewart 1. Gray, (1830) Hempst, ton, (1829) 3 Cranch (C. C.) 594.
(U. S.). 94. Indictment. — The provisions of this sec A certificate signed by the judge as both tion do not apply to an indictment by a judge and clerk, and sealed with the seal of grand jury, as such a body is not a court. the court, is sufficient. When the judge is In re Dana, (1895) 68 Fed. Rep. 886. See also ex officio clerk, he must certify in each Matter of Leary, (1879) 10 Ben. (U. S.) 197., capacity, but it is a matter of form rather
Attestation by clerk. -— The clerk's certifi than of substance whether the certification cate need not show that such clerk had charge be made by two separate certificates, or comof the records of the court, in order to au prised in one. Keith v. Stiles, (1896) 92 thorize him to certify thereto; this section Wis. 15. does not require that this be certified to or When the judge in his certificate states shown, and this fact will be presumed. that the person named is the clerk of the Ritchie v. Carpenter, (1891) 2 Wash. 512. court " whereof I am the judge," it is a fair The court is precluded from receiving any inference from the use of the term
“the other evidence than the record itself to show judge,” that he is the sole judge of the court, that the attestation was not in due form of and the proper person to sign the attestation. law, and when the certificate of the clerk Willock v. Wilson, (1901) 178 Mass. 68. states that “the aforegoing is truly taken The national courts will take judicial nofrom the record of proceedings "in that court tice that the judge who signed the certificate it will be presumed to be a full copy of the is the sole judge of the district in which the record of all the proceedings in the case. proceedings are of record. Bennett v. BenFerguson 1. Harwood, (1813) 7 Cranch (U. nett, (1867) Deady (U. S.) 299. S.) 408.
It is a fatal defect when the presiding By deputy. — An attestation by a deputy magistrate omits the statement in his certificlerk is not within the terms of the statute. cate that the attestation of the clerk is in Willock v. Wilson, (1901) 178 Mass. 68.
due form. A court cannot officially know The seal should be annexed to the record, the forms of another state. Trigg v. Conway, of which the certificate of the judge is no (1847) Hempst. (U. S.) 538. See also Craig part, and when the seal appears, not on the v. Brown, (1816) Pet. (C. C.) 352; Catlin v. record with the attestation of the clerk, but Underhill, (1847) 4 McLean (U. S.) 199. with the certificate of the judge, it will not Mode of authentication not exclusive. be admitted. Turner 1. Waddington, (1811) This statute providing for the mode of au3 Wash. (U. S.) 126. See Talcott 1. Dela thenticating records of state courts is not ware Ins. Co., (1810) 2 Wash. (U. S.) 449. exclusive, and states can adopt any other
It is only necessary that the seal be at method. Gribble v. Pioneer Press Co., (1883) tached to the certificate of the clerk; it does 15 Fed. Rep. 689. Soe Willock v. Wilson, not matter that the seal was not attached to (1901) 178 Mass. 68; Wells 1. Davis, (1887) the record. Ritchie v. Carpenter, (1891) 2 105 N. Y. 670; Hewitt 1. Indian Ter. Bank, Wash. 512.
(Neh. 1902) 92 N. W. Rep. 741; Title Guar
antee, etc., Co. v. Trenton Potteries Co., cate of the judge. Buford v. Hickman, (1897) 56 N. J. Eq. 441; Otto v. Trump, (1834) Hempst. (U. S.) 232. (1887) 115 Pa. St. 425.
In O'Hara v. Mobile, etc., R. Co., (C. C. A. In Ritchie Ľ. Carpenter, (1891) 2 Wash. 1896) 76 Fed. Rep. 718, the court said: 512, the court said: “ While the legislature “ While that section does not, in terms, incould not enact that any further or addi clude the records and judicial proceedings of tional inatters should be certified to not re the courts of the United States, it has been quired by the laws of the United States, it the uniform practice from 1790 down to the could dispense with some of the requirements present time to follow its requirements in there provided for."
authenticating the records and judicial proSufficiency of authentication question of ceedings of those courts, and such authentilaw.— In an action of debt on a judgment, cation has always been held sufficient.” on a plea of nul tiel record, it is the province “So far as this statutory provision relates of the court, and not that of the jury, to de to the effect to be given to the judicial proceedcide whin the proof of the record is sufficient. ings of the states, it is founded on art. 4, Wittemore r'. Malcomson, (1886) 28 Fed. sec. 1, of the Constitution, which, however, Rep. 605.
does not extend to the other cases covered by Authentication according to statute not the statute. The power to prescribe what required by United States courts. — Compli effect shall be given to the judicial proceedance with this statute as to the authentica ings of the courts of the United States is tion of judicial records is not required as to conferred by other provisions of the Constithe records of a state.court where introduced tution.” Embry 1. Palmer, (1882) 107 U. in evidence in a federal court in the same S. 3. state. Mewster v. Spalding, (1853) 6 Mc United States courts must give faith and Lean (U. S.) 24. See also Channing v. credit. -- " The Act of Congress goes, perhaps, Reiley, (1835) 4 Cranch (C. C.) 528.
further than the constitutional requirement, The national courts take judicial knowl which relates to the faith and credit to be edge of the laws of every state in the Union, given in each state to the public acts, records, and do not require the certificate of the judge and judicial proceedings of every other state, of a state court that the attestation of the inasmuch as it declares the effect of the clerk thereof is in due form of law, as they records and judicial proceedings of the states determine that matter by their knowledge of when authenticated, as provided in every the laws of the state where it was made. court within the United States,' thus making Bennett v. Bennett, (1867) Deady (U. S.) 299. its provisions applicable to the national
Records and proceedings of United States courts, as well as to the courts of the states." courts. — The statute does not apply to the Galpin 1. Page, (1874) 3 Sawy. (U. S.) 93. courts of the United States, but is limited in “The statutory provision extends to every terms to the records and judicial proceedings court 'within the United States,' and there of the state courts. Turnbull v. Payson, fore to courts of the United States, and (1877) 95 V. S. 418.
See also Owings v. such courts are therefore bound to give to Hull (1835) 9 Pet. (U. S.) 607; U. S. v.· judgments of state courts the same faith and Wood, (1818) Brun. Col. Cas. (U. S.) 456, 28 credit which the courts of another state are Fed. Cas. No. 16.757; In re Neale, (1869) 3 bound to accord to them.” Union, etc., Bank Nat. Bankr. Reg. 177, 17 Fed. Cas. No. 10,066; v. Memphis, (C. C. A. 1901) 111 Fed. Rep. 561. Mason v. Lawrason, (1804) 1 Cranch (C. C.) Courts of the District of Columbia. - The 190.
judgments of the courts of the United States This statute, providing the mode of proof are upon the same footing, so far as concerns of the records and judicial proceedings of the the obligation created by them, with domestic courts of any state or territory, has no appli judgments of the states, wherever rendered cation to those of the courts of the United and wherever sought to be enforced; and States. National Acc. Soc. v. Spiro, (C. C. that the Supreme Court of the District of A. 1899) 94 Fed. Rep. 750.
Columbia is a court of the United States reWhile the statute in terms applies only to sults from the right of exclusive legislation the state courts, the record of the United
over the District which the Constitution has States courts is admissible in evidence in the
given to Congress. Embry v. Palmer, (1882) state courts if authenticated by the seal of
107 U. S. 3. the court, attestation of the clerk, and certifi
Sec. 906. [Proofs of records, etc., kept in offices not pertaining to courts.] All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in de form. and by the proper officers. If the said certificate is given by the presiding