Tibbetts v. Shaw , 19 Me. 204 ( 1841 )

The opinion of the Court was delivered by

Emehv J.

This is a case of exceptions against the opinion of the Justice of the District Court for the western district. The Judge, on motion in writing, ordered the writ to be quashed, because, as the counsel for the defendants alleged, said writ does not bear the seal of that Court. Our St. c. 373, was passed Feb. 25, 1839, to abolish the Court of Common Pleas and establish District Courts, to be in force from and after the first day of April then next, with the provision that the Judges of the District Courts may be appointed and commissioned at any time after this act shall be approved by the Governor. The third section provides, that all writs and processes issuing from the District Court shall be in the name of the State, shall bear teste of one of the Justices of said Court; and such writs and processes shall be under the seal of said Court, and signed by the clerk thereof, in the county where the same may be returnable; and shall have force and be obeyed and executed in every county in the State.

By an additional act, c. 398, passed March 20, 1839, to take effect and be in force from and after its approval by the Governor; the 2d section enacted that the District Judge or Judges are authorized to adopt seals of the Court, for the respective districts.

The writ in this case was dated August 3d, 1839, returnable to the October Term of that court, 1839, there entered, and continued from term to term till February Term, 1841.

It is urged by the plaintiff’s counsel that this order should not have been given by the Judge, because at October Term, 1840, at said District Court, the counsel for the defendants, on the 2d day of the term, certified that the defendants appeared in Court and offered in.writing to be defaulted and that judgment shall be rendered against them for the sum of $150, and the' costs to be taxed by the Court up to that term. This offer though duly entered on the docket was not accepted by the plaintiffs.

This circumstance seems to have roused the resentment of the defendants, and induced them to interpose their motion to quash the writ for defect of the seal of the Court. It came indeed very late; and the testimony of the clerk on the subject is detailed at considerable length in the exceptions.

By the 5th section of c. 373, this Court “ must consider and determine them in the same manner as they are authorized to do in respect of actions originally commenced and entered here.” The writ in fact seems to be impressed with two seals. But does it to us, judicially, appear to be the seal of the District Court for the western district ?

In one case, it was recently holden, in England, that the Queen’s bench had judicial knowledge of the seal of another court. By what means it was obtained, is not communicated in the report. Without a promulgation from some authority, it would at first seem difficult to discern the ground of that judicial perception. In Theobald’s and, Eden’s reports, 223, Doe, d. v. Edwards, in an action of ejectment, a question respecting the admissibility of evidence arose in 1839, under the 76th section of the St. 57 Geo. IV, which enacted' that the records of the Insolvent Debtors’ Court, should be admitted as evidence, without any proof whatever given.of the same, further than that the same is sealed with the seal of the said Court as aforesaid. No such proof was offered at the trial. A new trial was moved for, on the ground of the improper admission of documentary evidence, to which objection was made, but overruled. On the hearing of the motion, Lord Denman C. J. said, “ the intention of the Legislature must have been that the seal should prove itself; and on production of the seal, we take judicial cognizance that it is the seal of the insolvent debtors court.” Coleridgk ,T. observed “ that the 7 Geo. IV, c. 57, does not require the seal itself, but that the document should be proved to be sealed with the seal of the court of which we have judicial knowledge,” and the rule was refused.

In Henry v. Adey, 3 East, 221, in an action on a judgment obtained in the island of Grenada, a nonsuit was ordered and held proper for defect of proof of the seal. The court said they could not take judicial notice that the seal affixed, was the seal of the island and that proving the Judge’s hand writing could not advance the proof of the seal. So in Moises v. Thornton, 8 Term R. 303, the production of a diploma under the seal of the University of St. Andrew’s, in Scotland, was holden not sufficient evidence of the degree of a doctor of physic without proof that it was the seal of the U niversity.

The public seal of a state proves itself. Tt is recognized by the law of nations. So the proceedings in a foreign prize court, when under its seal, certified by the deputy register, whoso official character is certified by the Judge, and his by a notary public. Yeaton v. Frye, 5 Cranch, 343. The high credit given to exemplifications under seal, in Norris’s Peake on Evidence, p. 60, is stated thus, “ for the courts of justice which put their seals to them are supposed to be more capable of examining them and more critical and exact in their examination than any other person is, or can be. For the courts under whose seals they are authenticated, making a part of the law and constitution of the country, their seals are supposed to be already known to every person like every other part of the laws. Gilb. Law of Ev. 14, 19.” This is rather a theoretical rule, but it works well in practice. Few judges meddle much with the examination of exemplifications of records. That service is confided to clerks. In this case the Judge did inspect and examine the seal and heard all the proof about it. We can have no doubt of the integrity and honesty of views on the part of the clerk in all he did. All the attempts to come as near to the seal as the circumstances seemed to require were all open on the hearing, and for the consideration of the Judge. And had he adopted the seal, we should have been much embarrassed under the evidence as reported, to say that he could not do so. But he seems to be fully sustained by the evidence and the law. Neither the St. c. 373, nor c. 398, make any provision for “the necessity” of which the clerk speaks. Even that necessity terminated on the 4th day of April, 1839, when he received the seal. And this writ was made nearly four months after. The statute authorizes not the clerk, but the Judge, to adopt a seal for the court. The clerk did not consult the court on the exigency, nor obtain his direction. And this manifestly was not the seal so adopted, and communicated by the Judge to the clerk — it was without the inscription furnished by the Judge of the District Court. That inscription, we perceive, entitled the seal “District Court, Western District.” This assumed by the clerk was as no seal. The precept under the law, for this defect, was not in “ force to be obeyed.” This Court has decided, in the case Bailey v. Smith, 3 Fairf. 196, that “the seal is matter of substance, and the process, being an original writ, not amendable.”

It would poorly comport with the comity which one court owes to the Judge of another, who has the authority to adopt a seal for its court, when on full examination of the facts, it becomes convinced that the impression attempted to be palmed upon it, as its seal, is not the seal by him adopted, for this court to decide that it has better judicial perception of a fact almost exclusively within his knowledge, and that it is his seal, when he has deliberately decided it not to be the seal of the District Court for the western district.

It would really be an assumption of power not conferred on this Court.

But it would be outrageous to give costs against the plaintiffs.

The exceptions are overruled.