94
REPORTER.
of tMmiJIlJ1llt.aimlibontth-e cock had<1Deen made duringall:tllis time. No flood; stO'Fm;YOllother: disturbanaerof .the earth Qr,of the elements occurred shortly!oojore:its'fall, it. A,. state of things;Qnce proved m!e?dst is.preStlllledito continue. When the face is!cMnged by grading; cutting, or of watchfrilnessandlcareis' imposed· duringithe first. few' mOnths· thereafter in .. ,But the longer order to a rock or i8i mountain smeren1ainsi!n;thesarne pc>aitiOJil' and condition, the less beeomes the need, {lIid. hencEl\:the duty,of'Wia.tchfulness, until finally the prol>ability thatthey will ,not roMe or'change in the absence becomes of some warning, and of some ,acti1\'le;i and oonclulDve. ,mhisrockihad remained·em,bedded in ,the mountain side unmoved "tltrough the stormsand';ctwniing seasons of eight years after the railroad was built :and the gl'8Jling doneaboll:t it, and I have been forced to the same conclusion as the trial judge that a man of ol'dinaryprudence would not have 8ntlcipated that it would fall without apparent cause orwarning,and.would not have taken any steps to fasten ,it in to inspee.t it more carefully than the re'" ceiverdid. :Andnjury. that'could nat.!have or ablyanticipated'llJI the :ptobable resu1tof"an actor, omission lays no fotmdation fOMlll action (Railway Co" v. :Elliott y 12,U. S. App. 381, 386, 50. C. 350,lfud; 55 Fed. 949, 952), 'and it .seems to me that thel'eivas no human PIIobability thot this rock would slide from its mountain bed afterithadremaineuJm the saUlt situation for eight years, and tha''l1 no mancouldihave anticipated it!!, ,fall as' the natural orprobableresll1t of afailure to inspeCtor secure;,it .' f j
;(1.: , ; ;:
;
N.ATIC)NALACC. ,"
, .i""
,!'
SPIRO: . : I,
of Appeals,'Sec6nd' 'Circuit. May, 25, 1899.)
1\TQ. .'
23·..
JUDGMENT AB :EVIDENCE-AfrrJIlIlN'l'JCATION lW RECORD.·);
A judgmept ofa federal ,may be. court by an exemplified copy of the record containlJ:!.g the jUdgml1nt, under the seal of the court and authehtlcated by the c'ertlficate of the deputy clerk. .Every federlilcourt Is presUmed· to know the seal of every other federal court, and it will also be presumed In .favor of the certificate ,.of the deputy that the clerk was absent when It was made.
'I,h Error t9the ])ietrict of. New York.,
,'"
Stales' for the South'ern i . . ' ,', .
.'Jlhls is .of errol' by1;b.e defendapt iJ:!.. the Gourtbelow to review a judgment ,for the' plaIntiff, the actJonhavlng been brought upon a judgment in favor of the plalntiff' and against tlle. qeferidant rendered by the, circuit court of the United States f.orthe Eastern district of Tennessee.
'Roger A::PryQr; error. Hamiltoxi"Wallis, for (i .fendantfu error. Before. W ALJ.AOE .and SHIPMAN"GiJ.'cuit Judge.s, alid THOMAS, District Judge. ,::,1 . , ."'. .' ".) ··. !' .' ; .,',;. ' .
,.
SUPREME LODGE K. P. OF THE WORLD V. BECK.
751
PER CURIAM. The only question which has been argued at the bar is as to the the objection made to the admission in evidence of the record of the judgment of the circuit court of the United States for the Eastern district of Tennessee. The record purports to be an exemplified copy of the original proceedings in the cause, including the judgment itself, is attested by the' seal of the court, and is authenticated by the certificate of the deputy clerk of the court. Whether the record is sufficiently authenticated, pursuant to the provisions of section 905 of the Revised Statutes of the United States, is a question which need not be considered. The statute provides the mode of proof of the records and judicial proceedings of the courts of any state or territory, and has no application to those of the courts of the United States. Records may be proved by exemplifications (copies under seal), by office copies, and by sworn copies. Greenleaf states that "copies of records in judicial proceedings, under seal, are deeme,d of higher credit than sworn copies, as having passed under a more exact critical examination." 1 Green!. Ev. § 503. The rule is that every country recognizes the seals of its own tribunals without any further proof accompanying them. Delafield v. Hand, 3 Johns. 313. Each circuit and district court of the United States is presumed to know the seals of. every other circuit and district court of the United States, as each state court within a state is presumed to know and recognize the. seal of every other court of record within the same state. In Tur:nbull v. Payson,. 95 U; S. 424, it washeld!thilt the record of a district or circuit court of the United States may be proved in any o,thercircuit or district .court of the United States by a certificate of the clerk, under the seal of the court, without the certificate of the judge that the attestation is in due form. Although the certificate here was made by the deputy clerk, that officer.is by statute authorized, in the absence of·the clerk, to do an.d perform all the duties pertaining to the .office;and, in general, a deputy of a ministerial officer can do every act .which his principaJ might do. The Oonfiscation Cases, 20 WalL llH We are at ·lib, erty to presume, in favor of the .pr,oper·discharge of official duty, that the clerk was absent at thetime. Rankin v. Hoyt, 4 How. 327;Ud3J v. Grusell, 14 Wall. 1; Doughtyv. Hope, 3 Denio, 253, L N.. Y.79; Mosher v. Heydriek, .45 Barb. 549. The objections were correctly overruled; and the judgment is affirmed,' with costs. ':'. . i :;
SUPREME LODGE KNIGlITS OF. PYTHIAS OF THE WORLD (Circuit Court of A!ppeals, Ninth Circuit. EVIDENCE-SHIFTING 13:URJ)ENOF PROOF.
T.
BEOK;
May 16, 1899.)'
Where a defendlUlt in an action on a pollcy of life insurance pleads as a defense that the insured cominittedsuicide; by reason of which the policy' became void, the burden of establishing such defense rests upon the defendlUlt throughout the trial, .. The fact that the plaintiff Introduces in, evit.urnishe(l. the defend,ant, conta)ning dence the proofs of ment that the Insured coromi'tted l1uiclde and the verdict of a coroner's jury' to"that effect, while 'suchietidence :1$ entitled to its weight, and, standing
the