lic government offices (h), parochial registers (i), and registers of ships (k). Books of private corporations, road trustees, trading companies, and the like, unless coming within the Banking Companies Act, or the Companies Consolidation Act (1), cannot be proved by sworn copies prepared ex parte (m); the proper course being to have copies or excerpts taken from them at the sight of a commissioner of court, if great inconvenience would be occasioned by requiring the originals to be produced, or if these contain entries which the party or haver is entitled to withhold. Unless in such exceptional cases, copies, whether taken before a commissioner of court or proved at the trial, are excluded under the rule which requires the best evidence (n). It is unfortunately not the practice in criminal courts to grant commissions for taking excerpts; and therefore in criminal trials the originals of all documents must be produced, unless they are among those already described, whose terms may be proved by extracts or sworn copies (0).4

(b) Dunbar v. Harvie, supra—Kay v. Rodger, supra—Tomkins v. Att.-General, 1813, 1 Dow, 404-Contra, Paris v. Smith, 1823, 3 Mur., 337.

(i) Burnett, 484– 2 Al., 600. As to extracts by the keepers of these registers, see supra, § 1271. Entries in registers, under the act of 1854, should be proved by extracts; see supra, 21272.

(k) 17 and 18 Vict., c. 104, X 107-See supra, § 1117. (1) Supra, & 1280.

(m) Bell's Pr., 2213—Supra, & 134. (n) Supra, 140.

(0) Burnett, 484—2 Al., 600.

3 Beattie v. Mackay and Paterson, 1863, 1 Macph., 279, infra, & 1364.

4 The 14th section of the English Law of Evidence Amendment Act (14 and 15 Viet., c. 99) provides, that whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, an examined or certified copy or extract shall be admissible in evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted. It has been held that if a certified copy of any public document is rejected as such for not containing the requisites of one, it may be received as an examined copy, if proved to have been duly examined ; Reed v. Lamb, 1860, 6 H. and L. Exch. Rep., 75. The following have been held to be public books in the sense of the statute, of which examined or certified copies are admissible :—The Register of Voters at a Parliamentary Election ; Reed v. Lamb, supra;-a duplicate original” from the archives of the East India Company of a Register of Marriages celebrated in India, kept by authority of the Company ; Ratcliff v. Ratcliff and Anderson, 1859, 5 Jur. N. S., 714;—the original ByLaws of a Railway Company, framed under the Railway Clauses Consolidation Act; Motteram v. the Eastern Counties Railway Company, 1859, 7 Scott's N. C. B. Rep., 58; --Parish Registers; Porter, in re, 1856, 2 Jur., N. S., 349, where extracts from a parish register, purporting to be signed by the curate, were admitted in evidence without verification of the signature of the curate, or of his being the proper custodier of the register:-Registers under the 6 and 7 Will IV, c. 85; R. v. Mainwaring, 1856, 7 Cox's Crim. Cases, 192 ;-Book of Queen's Bench; Grindel v. Brendon, 1859, 5 Jur. N. S.,

CHAPTER IV.-INTERNATIONAL LAW REGARDING EXTRACTS AND

EXAMINED COPIES.

§ 1283. Extracts, or (as they are frequently termed) exemplifications, of decrees in foreign courts, like deeds concerning moveables executed in foreign countries (a), are admissible in evidence here, if they are prepared and authenticated according to the law of the country whence they proceed; but they will be rejected if they are not formal according to that law (b). This rule is illustrated by a case where a pursuer in the Court of Session, founding on a judgment on the question in issue, which he had obtained against the defender in a colonial court, produced an exemplification of it, bearing to be attested by the proper officer, and to be sealed by the Chief Justice of the colony; and where the Court, proceeding on the opinion of English counsel that the document was not formal, refused to sustain it in hoc statu, but allowed proof of its authenticity (c). So, where in order to prove the objection of infamy against a witness for the Crown in the Court of Justiciary, there was produced a copy of a conviction in Ireland, bearing to be signed by the proper officer, but not impressed with the seal of the Irish Court, the document was rejected, as sealing was considered to be necessary for its admissibility according to the law of Ireland (d).

§ 1284. An exemplification of a foreign judgment, however, although regular, and authenticated according to the forms of the court from which it proceeds, is, in general, not probative in another country; for a party founding on such a writing in a court which is not familiar with the rules regarding it, ought to prove its authenticity. Accordingly it has been held in several English cases that a document bearing to be a decree of a foreign or colonial court, and impressed with the seal of court, is not admissible with

(a) Supra, 2 1026, et seq.

(b) 2 Hume, 255-Burnett, 483-Tait Ev., 191— 2 Alison, 599-Sinclair v. Fraser, 1771, 2 Pat. Ap. Ca., 253; reversing, M., 4542; noted infra (f). In most foreign countries exemplifications of decrees are attested by the signature of the proper officer, and impressed with the seal of court.

(c) Robertson v. Gordon, 15th Nov. 1814, F. C.

(d) W. Dean, 1729,

2 Hume, 355. The prisoner did not offer proof that the copy was formal according to the practice of the Irish Court; but tendered witnesses to prove that the person convicted had stood on the pillory in terms of the sentence. The Court justly considered that such evidence could not prove the terms of the sentence.

1420;-and the Registry under the Bill of Sales Act (17 and 18 Vict., c. 36); Sutton e. Bath, 1858, 1 F. and F., 152.

out proof that it is genuine (e). So a certificate of probate, bearing to be signed by “D. S. Bacon, Judge of Probate," and impressed

(e) Henry v. Adey, 1802, 3 East, 221—Buchanan v. Rucker, 1810, 1 Camp., 63 ; 9 East, 192, S. C.-Clark v. Mullick, 3 Moore P. C. R., 252; 280—Story's Confl., § 643 -Taylor Ev., 1032.

;

1 A guardian appointed by the Court of Chancery presented a petition to the Court of Session for the custody of his pupil, the Marquis of Bute (who had been surreptitiously removed to Scotland), in order to carry out a scheme of education approved by the Court of Chancery, and which involved the pupil's residence in England. The Court held that the production in process of official copies of the appointment and scheme of education, and of an order for the custody of the pupil's person—the copies being full of erasures and interlineations—could not be regarded as sufficient evidence of the orders of a foreign court; Stuart v. Moore, 22 D., 1504. The case was appaled; and the orders pronounced by the Court of Session for the custody and education of the pupil were recalled. Lord Chelmsford, referring to the point above stated, observed, “ I agree with my noble and learned friend opposite (Lord Cranworth), that, if the circumstances had been reversed, if the Scotch Court had assumed the guardianship of the infant, and the infant had been improperly removed from its jurisdiction, and the guardian had come to this country to reclaim possession of his infant ward, the English Courts would have facilitated the guardian in his object; and I think that they would not have examined with a very nice and critical eye the proof of the orders which had emanated from the Scotch authority; or, if there had been any imperfection in the proof, they would have facilitated the Court in obtaining the necessary means of establishing their authority"; 23 D., 912; 4 Macq., 72. Mr Macpherson, in commenting upon these observations, remarks that not only was the view adopted by the Scotch Court in consonance with the practice in previous cases, but that the practice of the English Courts has not been less “ nice and critical." "Such being the undoubted state of the law of Scotland, Is the law of England more liberal ? In 1814, Lord Ellenborough spoke thus, · By the comitas gentium the courts of different countries will recognise and enforce the judgments of each other; but these judgments are to be authenticated under the seals of the courts by which they are pronounced, or distinct evidence should be given that the Court had no seal, and verified its judgments by the signature of the Chief Justice '—(Alves v. Bunbury, 4 Camp., 28). Before Lord Brougham's Act (8 and 9 Vict., c. 113), the order in Chancery which this foreign court is asked to recognise would not have been recognised at the other end of Westminster Hall—or why was that act passed ? and Scotland is, by a special clause, excepted from its operation. There is reason to suspect that the Common Law Courts of England will not even yet recognise an order pronounced by a judge at chambers, if it have only an impressed stamp upon it—(Taylor on Evidence, % 11). A motion was made on a copy of such an order, bearing the stamp usual on such documents; the Court refused to notice judicially the impressed stamp; although it was contended that it was practically the seal of court, the Court held it to be merely the mark of the judge's clerk(Barrett Navigation Co. v. Shower, 8 Dowl., 173). Yet the Court of Session is rebuked for not acknowledging the Chancery order above described, which, although it may be, for aught we know, precisely in the form usually adopted in the Court of Chancery, to the eye of a Scottish lawyer, with its erasures and deletions, would certainly appear a vitiated document.”—The Appellate Jurisdiction of the House of Lords in Scotch Causes, by Norman Macpherson, Advocate, 1861.

In an action in the Court of Session, for judgment conform to “extract or exemplification" of a judgment obtained in the Court of Queen's Bench against the de

with the " seal of Probate Court, Monroe,” was held in the Court of Session not to be sufficient to entitle the alleged executor to be sisted as pursuer in room of the deceased; the Lord Justice-Clerk observing, “ It is an established rule that a document of this nature from a foreign court must be certified as genuine. For this purpose, if a notary-public cannot be procured, the signature of a British consul, or of the mayor of the town, would be sufficient. But we have here no evidence that Mr Bacon is what he states himself to be” ($). In like manner, the Lord Chief Commissioner

(f) Disbrow v. Mackintosh, 1852, 15 D., 123. In the case of Sinclair v. Fraser, 1771, 2 Pat. Ap. Ca., 253 (reversing, M., 4542), where it was held that a decree for payment pronounced by the Supreme Court of Jamaica should be received as prima facie proof of the same debt, when sued for in the Court of Session, the decree was certified by the clerk of the foreign court; his subscription was certified by the Secretary of the Island, who was a notary-public, and whose subscription was confirmed by that of the Governor, and by the Great Seal of Jamaica. The decree was held in the House of Lords to be sufficiently proved (see M., 4543). In the Court of Justiciary a certificate of a conviction by an English Assize Court was admitted for the Crown, on proof by the inspector and sub-inspector of police at Newcastle, “ that it was the ordinary form of conviction, that it was authentic, that it applied to the prisoner, and that the witnesses had been brought forward in English courts to prove such convictions"; Macrae, 1839, Bell's Notes, 281.2

fender, it was maintained “ that the exemplification, without proof led in support of it, is not evidence of anything.” On this plea Lord Deas said, “I have no doubt whatever that the exemplification is good and sufficient evidence for this Court to receive, so long as it is not impugned as being false and forged. It bears to be attested by one of the Masters of the Court of Queen's Bench, as a true copy of the original judgment roll in the custody of the Masters. The seal of the Court of Queen's Bench is attached to it, and then you have a notarial instrument prefixed, in which the notary certifies that it is an office copy, and agrees in all respects with the original judgment roll, and that the signature at the foot thereof is the genuine subscription of Mr Hodgson, one of the Masters of Court. Now I take it, that such an exemplification, with its authenticity so attested, is evidence which would be received all over the world; at all events, I have no doubt that it is receivable in this Court as full legal evidence of that judgment, and that we must deal with it accordingly.” It was, accordingly, held that the foreign decree was sufficiently authenticated; and the Court further refused to allow the defender a proof that no notice of the proceedings in the English court had been given to him, and that the decree was really a decree in absence, which, according to the law of England, could be opened up, holding that his averments as to the circumstances under which the decree had been obtained, and the effect it would receive in England, were not suficiently precise. But Lord Curriehill was in favour of a proof being allowed * Before we can give decree conform, without further evidence in support of the claim, we must be satisfied that the judgment is such that it would be held as res judicata in England"; Whitehead v. Thomson, 23 D., 772–Frisell v. Thomson, 1862, 22 D., 1176. See, as to the effect of a foreign judgment in England, supra, 2 1081; and as to the admissibility of copies of foreign judgments, &c., 14 and 15 Vict., c. 99, X 7.

2 H. M. Adv. v. Dempster, 1862, 4 Irv., 143—H. M. Adv. v. Davidson and Francis, 1863, 35 Sc. Jur., 270.

once held that an English probate is not admissible in this country, without some person being adduced to prove its correctness, and the genuineness of the signatures and seal (9). For a considerable time, however, it has been the practice to admit probates and letters of administration from English and Irish courts (although foreign courts in questions of Scotch law) without their authenticity being proved (1). This is an exception to the ordinary rule, on the ground that the Scotch courts and legal profession are familiar with these writings, and that their accuracy and genuineness can easily be investigated if any doubt arises regarding them.3

In America another exception to the rule is recognised in the case of foreign Courts of Admiralty, the seals of which, appended to their decrees, are judicially noticed without proof of authenticity, on the ground that Courts of Admiralty are courts of the law of nations ().

The Court of Session once ordained an extract of a decree pronounced by them to be written on parchment and sealed with the seal of Court, as it required to be used in Ireland, where (the party alleged) the judges would not receive it if unsealed (;).

$ 1285. With regard to deeds recorded in foreign registers in which the original documents are preserved, the practice of the courts of this country is to receive an extract or copy certified by the keeper of the record, or other official person appointed to authenticate such writings. Thus, where a person had obtained letters of administration in England upon a will and codicils, which were deposited in Doctors' Commons, the Court of Session, in an action of reduction-improbation of one of the codicils, held that the defender was not obliged to produce the original document, and, consequently, that the production might be satisfied by the letters of administration (k). Thus, also, an extract of a contract from the books of a foreign notary has been admitted where, according to the lex loci contractus, the original deed was preserved in the re

(9) Fowler v. Paul, 1820, 2 Mur., 433.

(h) Wardlaw v. Maxwell, 1715, M., 4500_Clark v. Brebner, 1759, M., 4471-Stewart v. M‘Donald, 1826, 5 S., 29— Marchioness of Hastings v. Marq. Hastings' Exrs., 1852, 14 D., 489—Disbrow v. Mackintosh, supra, per Lord Just.-Clerk (Hope). See also Ross v. Ross, infra, (k).

(i) Story's Confi., 2643–1 Greenleaf's Ev., & 514—Yeaton 2. Fry, 1808, 5 Cranch. Ca. in Supr. Court, U.S., 335—Thomson v. Stewart, 1820, 3 Day's Connecticut Rep., 171. (j) Murray, 29th March 1683, 1 Fount., 230.

(k) Ross v. Ross, 1782, M., 4600.

3 Since the change effected by 21 and 22 Vict., c. 56, % 14 (by which probates and letters of administration granted by the English and Irish Courts operate as confirmation in Scotland), the reasons in favour of the exception are of course stronger.