property is situated, pursuant to the laws thereof, when certified under the hand and seal of the officer, having the custody of the record, is, if the original cannot be produced, presumptive evidence of the conveyance, and of the due execution thereof. [New; analogous to L. 1864, ch. 311 (6 Edm., 254).] PART II. of docket, adjoining § 948. A transcript from the docket-book of a justice of the Transcript peace, within an adjoining state, of a judgment rendered by him; justice of a transcript of his minutes of the proceedings in the cause, previous stato. to the judgment; or of an execution issued thereon; or of the return of an execution; when subscribed by the justice, and authenticated as prescribed in the next section, is presumptive evidence of his jurisdiction in the cause, and of the matters shown by the transcript. [From L. 1836, ch. 439, § 1 (3 R. S., 5th ed., 678; 4 Edm., 639). The original is singularly obscure. It has been remodelled, so as to express more clearly the supposed meaning of its provisions; particularly that relating to a transcript" of his jurisdiction in said cause".] authenti § 949. Such a transcript must be authenticated by a certificate Id.; how of the justice, annexed thereto, to the effect, that it is in all respects cated. correct, and that he had jurisdiction of the cause; and also by a certificate of the clerk or prothonotary of the county, in which the justice resided at the time of rendering the judgment, under his hand and the seal of the court of common pleas, or other county court of the county, to the effect that the person, subscribing the certificate attached to the transcript, was, at the date of the judg ment, a justice of the peace of that county; and that the signature thereto is in his own handwriting. [Id., § 2.] proof. § 950. The judgment and other proceedings, and the justice's Other authority to render the judgment, may also be proved, by the production of the docket, or of a copy of the judgment or other proceedings; and the oral testimony of the justice, to the truth and correctness thereof, and to his authority to render the judgment. [Id., § 3.] § 951. The last three sections do not prevent the introduction of evidence, to controvert any of the proof, in relation to the validity of a judgment therein specified. [Id., § 4.] $ 952. A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence, when authenticated as follows: 1. By the attestation of the clerk of the court, with the seal of the court affixed, or of the officer in whose custody the record is legally kept, under the seal of his office. 2. By a certificate of the chief-judge or presiding magistrate of the court, to the effect, that the person, so attesting the record, is the clerk of the court; or that he is the officer, in whose custody the record is required by law to be kept; and that his signature to the attestation is genuine. 3. By the certificate, under the great or principal seal of the government, under whose authority the court is held, of the secretary of state, or other officer having the custody of that seal, to the effect, that the court is duly constituted, specifying generally the nature of its jurisdiction; and that the signature of the chief-judge or presiding magistrate, to the certificate specified in the last subdivision, is genuine. [From 2 R. S., 396, Part 3, ch. 7, tit. 3, § 26 (3 R. S., 5th ed., 678; 2 Edm., 413), amended by omitting, from sub. 3, the provision that the secretary of State, etc., must verify the signature of the clerk, as well as that of the presiding magistrate. Two verifications of the same signature seem to be unnecessary, and it may be difficult to procure the second.] § 953. A copy of a record, or other judicial proceeding, of a court of a foreign country, attested by the seal of the court, in which it remains, must also be admitted in evidence, upon due proof of the following facts: 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of the original. 2. That the original was, when the copy was made, in the custody of the clerk of the court, or other officer legally having charge of it. PART II. 3. That the attestation is genuine. [Id., § 27.] ticle does § 954. [Amended, 1877.] Nothing in this article is to be con- This ar strued, as declaring the effect of a record or other judicial proceeding not de of a foreign country, authenticated so as to be evidence.(^) [Id., § 28, last clause. The remainder is included in title fifth of this chapter. See § 962, post. This enactment wisely leaves the effect of a foreign judgment or other judicial proceeding to be declared, in general, by the courts. It seems to be now the settled doctrine in England, as well as in this State, that such a judgment cannot be impeached, except by showing that the court had not jurisdiction or, that the defendant was not served with process, or that the judgment was fraudulently obtained. Henderson v. Henderson, 6 Q. B., 288; Ferguson v. Mahen, 11 Ad. & Ellis, 179; Ricardo v. Gracias, 12 Clark & Finn., 398; Bank of Australasia v. Nias, 4 Eng. L. & Eq., 252; Taylor v. Bryden, 8 Johns., 133; Lazier v. Westcott, 26 N. Y., 146.] [Section 955 of the act of 1876, which was stricken out by the amendatory act of 1877, was a revision of L. 1868, ch. 596 (7 Edm., 321), which provided that a judgment rendered in Canada should be only presumptive evidence of the debt, etc., on which it was founded.] claro effect of record, etc. ments from § 956. [Amended, 1877.] A copy of a patent, record, or other Docu document, remaining of record in a public office of a foreign country, foreign certified according to the form in use in that country, is evidence how when authenticated as follows: 1. By the certificate, under the hand and official seal of a commissioner appointed by the governor to take the proof or acknowledg ment of deeds in that country, to the effect that the patent, record, or document is of record in the public office, and that the copy thereof is correct and certified in due form. 2. By a certificate under the hand and official seal of the secretary of State, annexed to that of the commissioner, to the same effect as prescribed by law for the authentication of the certificate of such a commissioner, upon a conveyance to be recorded within the State. The certificate of the commissioner, thus authenticated, is presumptive evidence that the copy of the patent, record, or document is certified according to the form in use in the foreign country. [L. 1875, ch. 136, portions of §§ 1, 2, 8, and 9.] (a) L. 1877, ch. 311, provides that any certificate, etc., which is by the laws of any other State, or of the dominion of Canada, prima facie evidence of the formation, etc., of a corporation or joint-stock company there located, shall be received in evidence within the State. countries; authenti cated. JUSTICE'S Form of certificato to copies, etc. Certificate must be sealed. Qualifica tion of last section. Public or corporate TITLE V. Miscellaneous provisions. 957. Where a transcript, exemplification, or certified copy of a record or other paper, is declared by law to be evidence, and special provision is not made for the form of the certificate, in the particular case, the person, authorized to certify, must state, in his certificate, that it has been compared by him with the original, and that it is a correct transcript therefrom, and of the whole of the original. [2 R. S., 403, Part 3, ch. 7, tit. 3, first part of § 59 (3 R. S., 5th ed., 687; 2 Edm., 420), amended so as to correspond to the preceding sections of this chapter.] $958. If the officer, or the court, body, or board, in whose custody an original paper, specified in the last section, is required to be, by the laws of the State, or of another state, or of the United States, or of a territory thereof, or of a foreign country, has, pursuant to those laws, an official seal, the certificate must be attested by that seal. If the certificate is made by the clerk of a county within the State, it must be attested by the seal of the county. [Id., remainder of § 59, amended in like manner, and as required by the abolition of the courts of common pleas; and, also, so as to apply to all certificates, whether made within or without the State.] 959. [Amended, 1877.] The last section does not require the seal of a court to be affixed to a certified copy of an order, or of a paper filed therein, or entry made, where the copy is used in the same court, or before an officer thereof; or, in the supreme court, where it is used in a circuit court, or a court of oyer and terminer. [Id., § 60, with the addition of the words, "or a court of oyer and terminer".] § 960. [Amended, 1877.] Where a seal of a public officer, or of seal a corporation is authorized or required by law, it may be impressed stamped. directly on the paper. may be [Id., part of § 61, and L. 1848, ch. 197, § 1 (3 R. S., 5th ed., 687; 4 Edm., 643). In the act of 1876, this section also took in § 62 of the R. S.; but the provision corresponding to the latter was expunged by the amendatory act of 1877.] PART II. gates, etc., to search tes, and to certify, etc. § 961. A surrogate, county clerk, register, clerk of a court, or Surroother person, having the custody of the records or other papers in a clerks, public office, within the State, must, upon request, and upon payment of, or offer to pay, the fees allowed by law, or, if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. If he refuses, or unreasonably neglects or delays, to make such a search, or to furnish such a transcript or certificate, or makes a false certificate, he is guilty of a misdemeanor. [L. 1847, ch. 470, § 40 (3 R. S., 5th ed., 481; 4 Edm., 588); amended so as to correspond to § 921, ante, and so as to punish the making of a false certificate. Instances have occurred, where some of the officers, named in this section, have refused to certify that papers cannot be found, on the ground that there is no duty, imposed upon them by law, to search therefor, or to make such a certificate.] clause. 962. Nothing in title fourth of this chapter prevents the proof Saving of a fact, act, record, proceeding, document, or other paper or writing, according to the rules of the common law, or by any other competent proof. [2 R. S., 397, Part 3, ch. 7, tit. 3, part of § 28 (3 R. S., 5th ed., 678; 2 Edm., 413); and L. 1846, ch. 240, § 2 (3 R. S., 5th ed., 679; 4 Edm., 642).] 245 |