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Weems v. George et al.

paid by the heirs of said George. To the introduction of this document the defendant objected, on the ground that it was not competent nor within the official duties and acts of the clerk to certify to the existence of facts from the inspection of, and from documents and papers on file in the suit; and that the facts and the papers showing them should have been copied, and the certificate given as to the verity of the copy. The court overruled the objection and admitted the evidence.

Be it remembered, also, that on the trial of said cause the plaintiffs offered one J. M. Durand as a witness to prove that he had brought suit against the defendant in this suit, the said Alexander W. Weems, to recover the amount of the notes set forth in this suit, and that said Weems had taken a suspensive appeal from an order of seizure and sale, to the Supreme Court of the State of Louisiana. The defendant objected to these facts being stated by the witness, on the ground that it was not competent to prove the contents, or any part of the contents, of written documents, or of judicial records by parol, without first proving the destruction of the said documents or records. But the court overruled the objection and permitted the witness to testify to the facts above mentioned.

THEODORE H. McCALEB,
United States Judge.

The defendants brought the case up to this court by writ of

error.

It was argued by Mr. Miles Taylor, for the plaintiff in error, and Mr. Lawrence, for the defendants in error.

Mr. Taylor, for the plaintiff in error.

Upon the trial of the cause, the defendants in error, in the court below, offered in evidence a certificate of the clerk of the eighth Judicial District Court for the parish of St. Tammany, for the purpose of proving that certain claims against the suc cession of Alexander George were satisfied and paid by the the heirs of the said George. To the introduction of this certificate the plaintiff in error objected, on the ground that it was not competent for, nor within the official duties or power of the clerk, to certify to the existence of facts from the inspection of documents and papers on file in a suit, and that such facts, if they existed, could only be shown by duly certified copies of the documents and papers on file, showing such facts; and the objection was overruled by the court, and the certificate admitted. And the defendants in error further offered one J. M. Durand as a witness to prove that he had brought suit against the plaintiff in error, to recover the amount of the notes sued on

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Weems v. George et al.

in this case, and that he, the plaintiff in error, had taken a suspensive appeal therein to the Supreme Court of Louisiana. To the introduction of this testimony the plaintiff in error objected, on the ground that one could not be permitted to prove the contents, or any part of the contents, of judicial records by parol, without first proving the destruction of the said records; and the objection was overruled, and the testimony admitted. To the decisions of the court overruling these objections, and admitting the certificate of the clerk, and the testimony of the witness Durand, the plaintiff excepted; and his bill of exceptions was duly allowed and signed by the court, as will be seen at p. 8 of the transcript.

And this ruling of the court was erroneous. and an error apparent on the face of the record.

As to the certificate of the clerk:

1st. If it relates to facts shown by papers or aocuments on file in his office, he cannot certify the substance of such papers; he must give a transcript of them. Smoot v. Russell, 1 Mart. La. Rep. N. s. 522; 1 Phill. Evi. 317.

2d. If it related to facts within his knowledge, it was inadmissible; because the statement was not made under oath, &c. Ellicott v. Pearl, 10 Pet. 412.

As to the testimony of the witness Durand.

1st. It was not the best evidence the nature of the case aumitted of.

2d. Judicial records can only be proved by copies duly certified to be true copies from the originals. 1 Phillips, Evidence, 383; Hagan v. Lucas, 10 Pet. 400.

Mr. Lawrence, for defendants in error.

The plaintiff in error pleaded to the jurisdiction, (p. 3,) on the ground that the petitioners are not-aliens, as alleged; and, especially, that the said Alexander George was, in his lifetime, and at the date of the notes, &c. a citizen of Louisiana; and that Durand and wife (the vendors to George) were also citizens of Louisiana.

The first bill of exceptions states, that the plaintiffs below offered in evidence a certificate of the clerk of the parish court, for the purpose of proving that certain claims against the suc cession of Alexander George were paid by the heirs of said George, which was objected to on the ground that the clerk was not authorized to certify as to facts from inspection of records.

The second bill of exceptions states, that the plaintiffs below offered Durand as a witness, to prove that he had brought suit against Weems on the notes set forth in the petition. The defendant objected, on the ground that it was not competent to prove the contents of judicial records by parol, without first proving their loss or destruction.

Weems v. George et al.

1st. The plea to the jurisdiction.

The plaintiffs below were aliens. The action was not brought upon the promissory notes, but upon the agreement in the act of partition. They were not assignees of a chose in action, in the sense of the 11th section of the Judiciary Act. The plaintiff's below were the heirs of George, and not his assignees. Chappedelaine v. Dechenaux, 4 Cranch, 306; Sere et al. v. Pitot, 6 Cranch, 332.

2d. As to the 1st bill of exceptions. The evidence offered is not shown to be material. The object of it was to prove that the plaintiffs below had paid claims against the estate of Alexander George, in order to show that they had taken possession of the succession of Alexander George, and were discharging their duties in that capacity.

3d. As to the 2d bill of exceptions. The evidence of Durand was offered, not for the purpose of proving the contents of a judicial record, but simply to establish the fact that a suit was brought; that fact being only used as proof of a demand from Weems before the commencement of an action against the defendants in error. A demand by suit was not necessary.

4th. The objection, that the judgment for principal, interest, costs of protest on the notes, and for the further sum of $389.08, was erroneous, is not well taken; and the art. 1929 of the Civil Code, which is cited, is not applicable. The previous articles, from 1924, are applicable to this case. See, also, The United States v. King, 7 How. 854; Field v. The United States, 9 Pet. 202.

Mr. Justice GRIER delivered the opinion of the court.

The defendants in error brought this suit in the Circuit Court of the United States for the Eastern District of Louisiana, against Weems, the plaintiff in error, by petition, according to the practice in the courts of that State. They aver, in their petition, that they are aliens, and subjects of the Queen of Great Britain, with the exception of two, who were citizens of the State of Illinois; and that they are the heirs of Alexander George, deceased. That said George, in his lifetime, was owner of a certain island, the undivided moiety of which he had sold to Weems. That, in the act of partition between them, Weems agreed to pay two certain notes, given by George for the purchase-money, and which were secured by mortgage on the land,

one for $1,305.82, payable on the 1st of January, 1848, and the other for $1,250.22, on 1st of January, 1849. That Weems paid the sum of $600 on the notes, but neglected or refused to pay the balance. That Alexander George having died, and the defendants in error having been admitted to the succession as

Weems v. George et al.

his heirs, an execution was issued on the mortgage for the balance of the notes, on which certain slaves held by them, as such heirs, were seized and sold; and the sum of $2,435.88 raised in satisfaction of the balance of said notes, with interest and costs of suit.

The defendant below filed two pleas to the jurisdiction: 1st, That the plaintiffs were not aliens, as set forth in their bill; and, secondly, that the claim of the plaintiffs is under Alexander George, who was a citizen of Louisiana.

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These pleas were overruled, the first, it is to be presumed, because it was not true in fact; and the second, because it was not good in law. For the plaintiffs' petition does not set forth a claim as assignees of the negotiable paper or notes mentioned therein, but for damage and loss incurred by them, from the neglect and refusal of Weems to pay certain liens which he had contracted to pay in the act of partition between himself and George.

As the argument submitted by the counsel for plaintiff in error does not insist that there was error in overruling these pleas to the jurisdiction, they need not be further noticed.

The case was afterwards heard on the merits before the court, without the intervention of a jury; and a paper, called a bill of exceptions to the admission of certain testimony, is found on the record, on which the plaintiff in error seems mainly to rely for the reversal of judgment. It might be thought, perhaps, hypercritical to object to the form of this paper, as it comes from a State where common-law forms are little known in practice; but it may be remarked, that this document certifies, only that certain testimony was offered and received by the court after objection by the defendant's counsel, and does not state that any exception was taken to such ruling of the court, or that the judge who signed it was asked to seal, or did seal a bill of exceptions. But, waiving this objection, the first exception is to receiving in evidence a certain paper, marked D. That paper is not copied in, or annexed to, the bill. It is said to be a certificate from the clerk of the eighth Judicial District for the parish of St. Tammany, offered to prove that certain claims against the succession of Alexander George were paid by his heirs. The objection to it was undoubtedly a good and valid objection, if the contents of the paper were what the objection assumes them to be. But as the paper itself is not set forth in the bill, this court cannot know whether the objection was overruled because the paper was not what it was assumed to be, or because the objection was not well taken, if it was.

The second exception was to the admission of parol testimony, that a suit had been brought against the defendant,

Weems v. George et al.

Weems. The objection, that the contents of a record cannot be proved by parol, is certainly a good and legal one, if such were the offer or such the evidence given by the witness.

But the bill does not state any of the preceding evidence in the case, nor the purpose or bearing of the testimony offered. It may have been merely offered to show demand of the payment of a note; a fact in pais, which may be proved in parol, like any other mode of demand, notwithstanding it was made by presenting a writ.

But there remains an objection to these bills of exception which is conclusive against them, even if they had been drawn in all proper and legal form. It has been frequently decided by this court that, notwithstanding there is no distinction between suits at law and equity in the courts of Louisiana, in those of the United States this distinction must be preserved. the case is submitted to the judge, to find the facts without the intervention of a jury, he acts as a referee, by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment on the law. In such cases, when a party feels aggrieved by the decision of the court, a case should be made up, stating the facts as found by the court, in the nature of a special verdict, and the judgment of the court thereon. If testimony has been received after objection, or overruled, as incompetent or irrelevant, it should be stated, so that this court may judge whether it was competent, relevant, or material, in a just decision of the case. See Craig v. Missouri, 4 Pet. 427.

In Field v. The United States, 9 Pet. 202, Marshall, C. J., in delivering the opinion of the court, says: "As the case was not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions. But if the District Court improperly admitted the evidence, the only effect would be, that this court would reject that evidence, and proceed to decide the cause as if it were not on the record. It would not, however, of itself, constitute any ground for the reversal of the judgment." And, again, in The United States v. King, 7 How. 853, 854, it is decided, that "no exception can be taken where there is no jury, and where the question of law is decided in delivering the final decision of the court." And, "when the court decides the fact without the intervention of a jury, the admission of illegal testimony, even if material, is not of itself a ground for reversing the judgment, nor is it properly the subject of a bill of exceptions."

It is alleged, also, that there is error on the face of this record, because the court allowed the whole amount levied from the property of the plaintiffs below, being the amount of the notes

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