legislature of a state in which those advantages have been so wisely secured by laws directing its employment in so many instances, and under such a variety of sanctions as in this. Of writings, which may become matter of evidence, some purport to express the will of those by whom they are made; others are only declarations of facts. Of the first kind are those which are called the acts of the parties whose will they purport to declare. Of the second, are the attestations of public officers, declaratory that certain of the acts were really made by those parties; and also, the written depositions of witnesses. With the last, the depositions, we have nothing, as has been said, to do in this division. The mode of taking them, and their effect, and the persons by whom they may be made, are pointed out in the Code of Procedure, and in the former part of this report. The other kinds of scriptory evidence, properly so called, are divided by the code into two kinds, authenticated and unauthenticated.

I. Authenticated acts are defined to be "such instruments in writing as are attested by a public officer, legally authorized for that purpose in the form prescribed by law." It will readily be seen that the evidence here is of two kinds. The expression of the will of the party, as contained in the act, and the declaration of the attesting officer, that such writing does contain the will of the party, and to avoid any misunderstanding of the effect of such evidence, the code provides, that it shall be proof only of that which is specially attested by the officer to have been done in his presence, and nothing more, and exemplifies its intent by some of the most common cases in which this species of evidence is produced. A bill attested by the signatures of the president of the senate, of the speaker of the house of representatives, and of the governor, is an authentic act; but the signatures prove only that the bill, to which they are affixed, has been passed by the two houses respectively, and has been approved by the governor. The signature of the governor to a proclamation, under his seal of office, offering a reward for apprehending a person accused of murder, is authentic evidence that such proclamation was issued on the day it bears date, that complaints were made to him of the commission of the offence, the flight of the defendant, or any other fact which he certifies to have been done in his presence; but it is not evidence that the crime was actually committed, or that the party fled.

The code divides authentic acts into four kinds : legislative acts; records of courts; records of the different executive governments, made in the legal administration of its different departments, which are declared to be authentic acts; and written instruments, made in the presence of, and attested by, such public officer as is for that purpose commissioned according to law, and purporting to testify what is said, done, or contracted by those whose acts they are.

1. A section directs the manner in which legislative acts are to be proved. In this the present law is not changed, as now the production of the original of an attested copy, or of the statutes printed by the state printer, are considered good evidence. The provision that an error in either of the kinds of copy may be alleged and proved by collating them with the original, is also, I apprehend, the law at this time; but it was thought advisable to insert it in terms. The mode of proof of public and of private acts, is declared to be the same. The court is

directed, ex officio, to take notice of public acts, and to carry them into effect, whether pleaded or not; but the party relying on a private act for the support of a right, or the privilege of an exemption, must allege and prove it.

Private legislative acts are those which concern designated individuals only. All others are public acts. All acts of incorporation, made for regulating the police or local government of any part of the state; for the establishment of the banks; for authorizing the imposition of a toll, of tonnage, wharfage, or other duty; for the establishment of hospitals, or other purposes of charity, or the promotion of religion, education, or science, are specially declared to be public, and all other incorporations to be private acts. But it is provided, that this enumeration is intended solely for the purposes of this title in the code, and does not affect the nature or definition of corporations established by law.

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2. Judicial records are, in a section under that title, defined, and the mode of authenticating them in the several cases of their being those of a court in this state, in another state, or in a foreign country. new provision is introduced to guard against surprise and fraud. directs that whenever the certified copy of a foreign judgment is intended to be produced as evidence, it must be filed a specified time before the trial, and notice given to the opposite party; and if he shall object to the introduction of such copy, the party introducing it must have it collated with the original and proved, either by a witness or on commission; and that if the copy filed shall be thus proved to have been a true one, the additional expense shall be borne by the objecting party. The effect of judgments, in other states of the union, or in foreign countries, as evidence, is declared to be the same as is directed in the code, in the chapter on Resjudicata, in relation to judgments in this state. But it is specially provided, that no judgment rendered in a suit, commenced by a proceeding in rem, whether by attachment or otherwise, shall have any effect of the resjudicata, except so far as respects the thing seized, unless the party have appeared either in person or by attorney and defended the suit.

To avoid the enormous expenses attending the introduction of proceedings in admiralty, when necessary as evidence, it is provided, that whenever the object is to prove a condemnation in a foreign court of admiralty, no other part of the record but the libel and condemnation need be produced for that purpose; and that no evidence taken in such cause shall be evidence between the same parties of any other fact than that in contestation in such cause.

3. The next section provides for what is thought to be a desideratum in our present law. It gives an enumeration of the acts of the executive government which are to have the force of authentic evidence, and the mode of their authentication. This needs no elucidation. A reference to the section itself is all that is necessary, both for its purport and for the reasons of the different provisions it contains. It may be proper, however, to remark, that while special laws provided for giving the force of authentic acts to the records of courts and notarial proceedings, the equally important documents of an executive nature were left for their authenticity to the discretion of the courts; which admitted or rejected them, and gave what degree of force to them that their judgment directed,

without any fixed rules, which, for the first time, are established by the proposed code.

4. Notarial acts, and the various provisions necessary to establish their validity, provide against their abuse, designate their effects, and point out the cases in which they may be declared void, are necessarily a most important subject in the Code of Evidence. Forming, as they do by our law, the principal means by which sales, contracts, donations, testaments and declaratory dispositions, in all their various forms, are to be witnessed; every provision in relation to them ought to be generally and minutely known; and for that purpose should be clearly and particularly expressed. This it has been the endeavour of the reporter to do in the three subsequent sections of this chapter.

The first of them describes the nature and prescribes the requisites of a notarial act, in which there is little to claim particular attention, as the provisions are chiefly those contained in different laws and decisions on the same subject, collected in one view, and enforced by precise enactment, which a reference to the section will fully explain without

comment.

The same observation, in substance, may be made on the subject of the next section, which treats of the effect of notarial acts, in relation to those who are parties to them; and in the few cases in which they may bear upon the rights of others, the laws and decisions on the subject are embodied and reduced to short, and, it is hoped, clear precepts, which are illustrated by examples, and some new provisions are introduced which require no explanation.

"For what causes and in what manner notarial acts may be declared not authentic," is the title of the last section relating to this matter. The silence of our present law on this important topic, required the greatest care in the reduction (a) of this part of the code, and imposes the necessity of some elucidations.

The distinguishing characteristic of a notarial act, that it is authentic evidence, in other words, that it is conclusive evidence, against those who are parties to it, rendered it necessary that many formalities should be required in passing it to secure the parties, as well as the public, from imposition. These are minutely directed in a section which has already been referred to. No officer at all attentive to his duty, no party not entirely negligent of his interest, can mistake them. When they are not attended to, a presumption will naturally arise that they have been omitted for some sinister end, and the natural corrective would be punishment. This, as regards the officer, has been provided for by the Code of Crimes and Punishments, in the shape of a personal penalty. As respects the parties, the remedy is not so clear. To inflict a punishment on both would be clearly unjust, for one must be the party injured. To inflict it on either would, in many cases, have the same character. The party really consenting to the omission, may be the one injured by the neglect; while the other, naturally careless of what it was the peculiar interest of the one with whom he contracted to observe, would overlook the

(a) This word is not English, but I have ventured to employ it, from the absolute want of one to express the act of preparing for publication a work, neither entirely compiled from pre-existing materials, nor entirely of original composition, but like the code I now present. If there be an equivalent term in the English language, it does not occur to me.

omission of formalities, by the neglect of which he could only gain. To illustrate my meaning by an example. A sale is made before a notary, who does not call on the witnesses required by law to sign the act. The notary is justly punishable for a neglect of official duty; but a personal penalty on either the purchaser or seller, would be unjust: on the purchaser, because he is the loser by his defect of title; on the seller, because, having received his consideration, he would leave the examination of the conveyance to the purchaser, contenting himself with the perusal of the act, to see that he conveyed what he had a right to convey. As to the parties themselves, some other provision was necessary to excite their attention to the observance of forms, rendered necessary by the general policy of the law. The means for enforcing the provisions of the law, which first present themselves, are those which operate on the act itself. The contract depends on the consent alone of the parties; the means of enforcing it on the legislative will. To this there is no injustice in annexing conditions. "I will provide,” says the lawgiver, an officer who shall draw your contracts, who shall give them legal forms and put you on your guard against imposition, who shall record and preserve them, who shall furnish you with copies when you want them, which copies shall have all the force of originals; but it is on condition that the plain rules which I prescribe, to guard against fraud, error and confusion, shall be strictly observed. It is your interest as well as your duty, if your intentions are correct, to observe these rules on your parts, and to see that they are observed by those with whom you deal. If you do not, the condition is broken, and you lose the advantages you would have had by observing them. I will punish my officer when he wilfully or negligently omits to perform his duty; but unless there is evidence of fraud against you, the only penalty you incur is the loss of that character to your contract which the observance of the rules would have attached to it. Prove your contract in any other way, if it be a legal one, my laws do not affect them. I will even allow you to consider the assent given to it by your signatures as binding; but it cannot be enforced as an authentic act." Such language seems to be appropriate to the occasion in the mouth of a just legislator, and its substance is contained in this part of the code. A notarial act, wanting any of the enumerated formalities, may be used as an instrument under private signature, if it have those of the parties; but it is not authentic.

The omission of a necessary formality, which ought to appear on the face of the instrument, is one of those facts which the judge is empowered to ascertain by his own inspection, without other evidence. Other omissions, or defects, which would destroy the authenticity of the instrument, may be proved by other evidence, the nature of which is designated in the code.

The cases in which notarial acts may be declared not authentic, for causes not apparent on the face of the instrument, are specially enumerated. For any of which, or for any such defect appearing on the face of the instrument, as is by this section declared to destroy its force as an authentic act, it is provided, that a suit may be brought by any one interested, in which suit the objection to the act must be particularly set forth, or the party may rely on such objection as a bar to any suit commenced upon it; but in every such case, as well as where the suit

is brought to have the act destroyed, the petition or answer, and the causes for considering it defective, specially stated. Provision is also made for the production of the instrument and giving notice of the objections to it, when it is used for some collateral point in a cause, and is not the foundation either of the suit or of the defence.

Another article specifies the cases in which authentic acts, not notarial, may be declared invalid. This, with the provision that the sentence of a court, declaring any act to be invalid shall be noted in the margin, both of the copy produced and of the original, concludes what is contained in the proposed code on this subject; but I cannot dismiss the notice of it, in this report, without felicitating the legislature on our finding already established, a system so admirably adapted to its purpose as that of transfers by notarial acts. With the firmest conviction of its advantages over every other intended for the same ends, it would have been difficult, if not impossible, without the experience we have had, to have forced the same conviction on the people: and the maintenance of the defective system of registration, which prevails in all the other states with more or less of inconvenience attached to each, is a convincing proof of the difficulties we should have had to encounter if we had been under the necessity of removing the one of these plans to make way for the other.

II. We come now to consider scriptory evidence, of less authority than that which is declared to be authentic. This inferior evidence is of two kinds; that which is attested by the signature of the party whose act it purports to be, and is called an act under private signature; and all other written evidence not so attested.

1. The difference between authentic acts and those now under consideration, with the reason for their different weight in the scale of evidence, is explained in the code. No writing, it is said, is in itself evidence of the truth of that which it contains: it shows that certain covenants are written, and that certain names have been subscribed to them; but it contains no proof that those names were subscribed, or that those covenants were agreed to, by the parties. To give them any validity, there must be some extrinsic evidence. This evidence, in authentic acts, is supplied by the credit which the law attaches to the certificate of the public officer, and to the seal of his office, which the courts are bound, ex-officio, to be acquainted with. But to acts under private signature no such credit is given. The production of them does not even raise a simple presumption of their validity. Proof of their execution is required. This proof, in ordinary cases, is either the testimony of a subscribing witness, or of one who knows the handwriting of the party. The code has introduced another and more simple mode of proof, to be used at the discretion of the party. It directs that whenever a suit is brought on an instrument made under private signature, the original shall be annexed to the petition for the inspection of the party who shall be summoned to acknowledge or deny the signature. If it purport to be his own, he must answer directly to the question, under the penalty of having an evasive answer construed as a confession. If the signature do not purport to be his own, but that of some one whose engagement would bind him, and he is acquainted with the handwriting, he must answer whether he knows or believes the signature to be genuine. If he is not acquainted with the handwriting,