Whereas divers records of courts of justice within this commonwealth, and other papers of consequence, have been or may be destroyed by fraud, accident or otherwise, to the great injury of the citizens of this commonwealth: For relief, therefore, of such persons, whose estates, titles or interests have been, or may be, affected thereby, 1. § 1. Be it enacted, That the several superior courts of law, county and corporation courts, where any such losses may have accrued, or shall hereafter accrue, when any original deeds, with an endorsement of the acknowledgment or proof thereof, and order for recording the same, attested by the clerks of such courts, or of the former district courts, respectively, or the copies of any deeds with the endorsement so attested, or any wills, with the endorsement of the proof and the order for recording the same, so attested, or of any judgment, decree or order of court, in like manner attested, or of any inventory or other document before admitted to record in such courts, and of all bonds, bills, notes, and all other papers necessarily filed in the office of such court, (the original of the same being lost or otherwise destroyed,) shall be produced to them, shall order their clerks again to record all such original deeds, copies of deeds, or wills, with the said endorsements respectively, and all such copies of judgments, decrees and orders of court, or of inventories or other documents; and the said clerks, when they shall have recorded any thing in pursuance of this act, shall endorse on the same that the original had been lost or destroyed, and shall make an entry to the same effect on the record, with the thing recorded, which shall have the same operation and effect in law, to all intents and purposes, as the original record would have had. From Oct. 1781, c. 11, 10 Stat. Larg. 453; May 1782, c. 41, 11 Stat. Larg. 72; Nov. 25, 1787, c. 20, 13 Stat. Larg. 27; 1787, c. 17, 12 Stat. Larg. 497; 1792, c. 33; 1796, c. 211, R. C. See Aug. 1734, c. 23, 4 Stat. Larg. 448. 2.2. The clerks of the said several courts shall do and perform the services in this act mentioned, for the same fees that are allowed by law in other cases for a copy of any thing hereinbefore mentioned; and, in like manner, shall take no other or greater fee for recording any deed which hath been already recorded, or shall be made only by occasion of the misfortune aforesaid, for settling the right or title of any person or persons whatsoever, to lands and tenements, slaves, or goods and chattels, than in other cases is, or shall be allowed by law, for the copy of any such deed; any law, usage or custom, to the contrary notwithstanding. Ibid. Act of February 19, 1840, Sess. Acts, ch. 55. 3. § 2. If the deed-book, or any other book containing the record of any conveyance, will, testament or other writing, or papers which may lawfully be recorded in any court of this commonwealth; or containing the record of any suit, judgment, decree or order of any court, be stolen, destroyed or mutilated, it shall be lawful for the clerk of such court, upon the production to him of the original writing so recorded, or a copy thereof duly attested, or a copy of any such record, judgment, decree or order duly attested, to record the same Act of February 19, 1840, Ses. Acts, ch. 55. again, upon the application of any person who may require it to be done, and to charge to such person the same fee as may have been chargeable for recording the same in the first instance. Every such record shall state whether it was made from the original writing or a copy thereof, and also the form of its authentication or attestation; and thereupon the conveyance, will, judg ment, decree, order or other writing so recorded, shall be held and taken to be duly recorded, and the record thereof, or a copy of the same, shall in like manner have the same effect as the original record thereof in the book stolen, destroyed or mutilated, as a copy thereof would have been entitled to. 4. § 3. Where any judgment, decree or order has been made, rendered, or entered in any court of this commonwealth, and the record book containing such judgment, decree or order shall have been stolen, destroyed or mutilated, or shall hereafter be stolen, destroyed or mutilated, it shall and may be lawful for such court, if there be found the minute book, order book, verdict of the jury, decree, or any other paper or evidence which was the foundation of the entry, judgment, decree or order so stolen, destroyed or mutilated, to cause the clerk of the said court to enter such judgments, orders or decrees de novo; and such judgments, decrees or orders, so as aforesaid re-entered, shall have the same force and effect as the judgments, decrees or orders originally entered; and the said services shall be performed by the said clerk or clerks without any compensation. Act of March 1, 1819—January 1, 1820. R. C. ch. 130. 5. § 3. It shall be lawful for the governor, with the advice of council, to(1) issue one or more commissions, as the case may require, under the seal of the commonwealth, to nine able and discreet persons directed, giving them, or any of them, full power and authority to meet at some convenient place, by them to be appointed, and to adjourn from time to time, as they shall think fit, and to summon, hear and examine all witnesses, at the instance of any person, touching the premises, and to take their depositions in writing. And the said commissioners shall have power to appoint some person, skilled in clerkship, to attend them for keeping a journal of their proceedings, and drawing the depositions aforesaid; which person shall be paid for his services by each county, respectively; and all depositions which have been taken by virtue of the act, entitled An act for the relief of persons, &c. [Dec. 17, 1787, R. C. c. 33,] or by virtue of The act to amend the said act, [Dec. 20, 1796, R. C. c. 211,] or which may hereafter be taken by virtue of this act, shall be so lodged with the clerks of the courts, in which such accident or loss may have happened, there to remain, as evidence in all cases, for establishing the rights of the person or persons injured, when better evidence cannot be obtained. Ibid. Act of December 8, 1792-October 1, 1793. R. C. ch. 100. 4. 2. All deeds, if acknowledged by the party making the same, or proved by the number of witnesses requisite, before any court of law, or the mayor or other chief magistrate of any city, town or corporation of the country in which the party shall dwell, certified by such court, or mayor or chief magistrate, in the manner such acts are usually authenticated by them; and all policies of insurance, charter parties, powers of attorney, foreign judgments, spe (1) The remedy provided in this section is cumulative; it does not deprive the party of any pre-existing remedy, by changing the rules of evidence at the common law. Therefore, where a will had been duly ad mitted to probate, and afterwards destroyed by the enemy, with the book in which it was recorded, its contents were admitted to be proved by parol evidence. Smith & al. v. Carter et al. 3 Rand. 167. Act of December 8, 1792-October 1, 1793. R. C. ch. 100. cialties on record, registers of births and marriages, as have been, or shall be made, executed, entered into, given and enregistered in due form, according to the laws in such state, kingdom, nation, province, island or colony, and attested by a notary public, with a testimonial from the proper officer of the city, county, corporation or borough, where such notary public shall reside, or the great seal of such state, kingdom, province, island, colony or place beyond sea, shall be evidence in all the courts of record within this commonwealth, as if the same had been proved in the said courts. (1) 1785, c. 62, 12 Stat. Larg. 155; 1787, c. 21, 12 Stat. Larg. 504. Act of March 6, 1841-Acts 1840-41, ch. 65, p. 76. 5. § 1. All American ministers plenipotentiary, charges d'affairs, consuls general, consuls, vice-consuls and commercial agents, duly appointed and recognized in any foreign country, shall be, and are hereby authorized and empowered to take the acknowledgment or proof, by a number of witnesses now required by law, of any deed, mortgage or conveyance of lands, tenements, slaves or real property, lying and being in the state of Virginia, and to take the acknowledgment and proof of the execution of any instrument of writing, for the sale, transfer or assignment of any property, real or personal, and of rights and debts; and also of any power of attorney or other writing to be used or proved in this state, before any court of justice or public officer, and to administer an oath or affirmation for like purposes, to any person desirous to make the same. 6. § 2. Every such acknowledgment or proof of any deed, conveyance, mortgage, sale, transfer or assignment, oath or affirmation, taken or made before such officer or agent, and every attestation or authentication made and duly certified by him in the manner prescribed by this act, shall be good and available in law, and shall be received as proof, as if taken or made before the proper officer of this state; and any deed or other instrument of writing which shall have been duly acknowledged, according to the provisions of this act, or proven by the number of subscribing witnesses now required by law, before any of the before mentioned officers or agents, and such acknowledgment shall be certified by him, under his seal of office, as herein provided, in the manner, or to the same effect, as now prescribed by law for such certificates, may be admitted to record in the proper court, or by the clerk thereof, in his office, in the same manner, and shall have the same effect to all intents and purposes, as if such deed or other instrument had been duly acknowledged, and such acknowledgment certified according to the provisions of the laws now in force. 7. § 3. In all cases, when by law the affidavit of any person residing in another state of the United States, or any district or territory thereof, or in any foreign country, is required, or may be necessary in any judicial proceed ing in this state, the same shall be deemed duly and properly authenticated, if subscribed and taken before some officer of such state, district or territory, or foreign country, authorized by the laws thereof to administer an oath or affirmation, and shall have annexed thereto a certificate of the clerk or other proper officer of a court of record of such state, district or territory, or foreign country, under the seal of such court, if there be a seal, or of any of the officers or agents before mentioned, verifying the genuineness of the signature of said officer, the existence of such office, and the authority of such officer to administer an oath or affirmation. (1) See tit. CONVEYANCES, Nos. 5, 7, ante, pp. 167, 168, and Lockridge v. Carlisle, 2 Leigh, 186. The mode in which the public acts, records, and judicial proceedings, in each state, shall be authenticated so as to take effect in every other state, is thus prescribed by act congress May 26, 1790, c. 38, 2 vol. 102, Colv. ed. The acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto (a): the records and judicial (a) It does not require the attestation of any public officer in this case; although in all the cases afterwards provided for, such an attestation is required. There is good reason for the distinction. The seal is in itself the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy, as to the officer entitled to affix the seal, which is a regulation very different in the different states. The U. S. v. Johns, cir. ct. U. S. Penn. April T. 1806, 4 Dall. 412, 416. See 1 Peters's R. 354; 4 Cranch, 388; Pomeroy v. The Com. gen. ct. June T. 1823; 1 Dall. 462; 6 Binney, 326; Kean v. Rice, 12 Serg. & Raw. 203. A law of another state is sufficiently authenticated under the act of congress, if it has the seal of the state affixed thereto: the particular officer authorized to affix the seal, depends on the regulations of the several states respectively. Hunter v. Fulcher, 5 Rand. 126. When a party relies on the law of another state to support his claim; and his claim depends on one or more sections of an act, 'tis sufficient if he produce an authenticated copy of the sections on which he relies-'tis not essential that he produce an authenticated copy of the whole act. Hunter v. Fulcher, 5 Rand. 126, on the authority of Dive v. Maningham, 1 Plowd. 60-5, in which 'tis said that a statute often contains many branches, and "that these branches, though contained in one chapter, are several acts of parliament, and concern several matters; and then where one branch only serves a man's purpose, it is sufficient for him to recite that only; for the recital of that only, is the recital of an entire and several act of parliament." The court recognizing no distinction between pleading and evidence. "Until the first year of Henry 8, all the acts of a session had one general title, after which distinct titles were introduced for each chapter." 1 Black. 183. The sections are not numbered on the rolls of parliament. Pr. Abbott, J. in Steel v. Smith, 1 B. & A. 99. See this case, in which it was held, that where an act of parliament, in the enacting clause, creates an offence and gives a penalty, and in the same section there follows a proviso containing an exemption, which is not incorporated with the enacting clause by any words of reference, it is not necessary for the plaintiff, in suing for the penalty, to negative such proviso in his declaration. (b) Whenever the court, whose record is certified, has no seal, this fact should appear either in the certificate of the clerk, or in proceedings of the courts of any state 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, (b) together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. (c) The said records and judicial proceedings, that of the judge. Washington, J. in Craig v. Brown, 1 Peters's R. 352. (c) This certificate is essential to a due authentication. Each state has a form of its own for authenticating records, prescribed either by positive law, or by practice; and to make those records evidence in other states, congress has thought proper to declare, that the attestation must be, not according to the form used in the state where it is offered, or to any other form generally observed, but to that of the state or of the court from whence the record comes; and the only evidence of this fact, is the certificate of the presiding judge of that court. I infer that the form intended by the law is that which I have stated, from the circumstance, that congress has prescribed none, and it is not to be supposed that the judge who gives the certificate, should be acquainted with any other form than that of his own state or court. Washington, J. in deliv. op. of court in Craig v. Brown, 1 Peters's R. 352, 354, and Smith v. Blagge, 1 Johns. Cas. 238. "I hereby certify that the aforegoing [purporting to be a record] is truly taken from the record of proceedings of P. G. county ct., and in testimony thereof I do here to subscribe my name and affix the seal of the said ct., &c." Signed by clerk, and regularly certified by the chief judge, that the attestation of the clerk was in due form. It was objected to its admissibility, that the clerk had not certified it to be a full record of all the proceedings in the case, nor even that it was a copy of any thing. Story, J. deliv. op. ct. A regular certificate of the chief justice, that the attestation of the clerk is in due form, accompanying the record, brings this case within the words of the law, and the court below were precluded from receiving any other evidence to shew that the attestation was not in due form of law. The record so authenticated was properly admitted in evidence. But if the writing produced do not purport to be a record, but a mere transcript of minutes extracted from the docket of the court, it is not admissible in evidence; though accompanied by the attestation of the clerk and certificate of the chief justice. Ferguson v. Harwood, 7 Cranch, 408, 412. A copy of a will and of the probat thereof in a court of North Carolina is offered in evidence it is authenticated by a certificate of the clerk of the court under his seal of office, and by a certificate of the presiding justices of the court that the clerk's certifi authenticated as aforesaid, 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 whence the said records are, or shall be, taken. (d) The act of March 27, 1804, c. 409, 3 vol. 621, supplementary to the preceding act, prescribes the mode of authenticating records of office books of any public office of any state, not appertaining to a court, thus: § 1. All records and exemplifications of office books, which are or may be kept in any public office of any state, not appertaining to a court, shall be proved or admitted in any other court or office in any other state, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county or district, as the case may be, in which such office is or may be kept; or of the governor, the secretary of state, the chancellor or the keeper of the great seal of the state, that the said attestation is in due form, and by the proper officer; and the said certificate, if given by cate is in due form: Held, the authentication is proper according to the act of congress, March 26, 1790; and that act, not the act of March 27, 1804, is applicable to the case; and therefore the copy is proper evidence in the courts of Virginia. Gornto v. Bomey, 7 Leigh, 234. A copy of a deed certified by a person styling himself clerk of the court from whose records the copy is taken, unaccompanied by the certificate of the chief justice the presiding justice of a court, shall be farther authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly com missioned and qualified; or if the said certificate be given by the governor, the secretary of state, the chancellor or keeper of the great seal, it shall be under the great seal of the state in which the said certificate is made. The said records and exemplifications, authenticated as aforesaid, shall have such faith and credit given to them in every court and office within the United States, as they have by law or usage in the courts or offices of the state from whence the same are or shall be taken. § 2. All the provisions of this act, and the act to which this is a supplement, shall apply, as well to the public acts, records, office books, judicial proceedings, courts, and offices, of the respective territories of the United States, and countries subject to the jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts, and offices, of the several states. or presiding judge, that the attestation is in due form, cannot be noticed by the court. Drummond's adm'rs v. Magruder & Co.'s trustees, 9 Cranch, 122, 125. Office copies of deeds registered in another state are not admissible evidence in this state, unless duly authenticated according to the laws of the United States. Peterman v. Laws, 6 Leigh, 523. (d) See ante, tit. EVIDENCE, p. 350, general note, and the authorities cited. 1.1, 2. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legisla tors and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting *See The People v. Ruggles, 8 Johns. R. 290; Updegraph v. The Com., 11 Serg. & Raw. 394. |