1789.
ATLER, Juʃtice :––In thefe two caufes of John Thompʃon, Pliff. in Error, v. John Muʃʃer, I concur with THE CHIEF JUSTICE in every point except two.
One of thefe is the objection refpecting the Virginia act, and the other is the mis-trial. As to the firft, it feems, that the Juftice below, on the trial of the caufe, refufed to admit in evidence, on the part of Thompʃon, a printed paper, faid to be an act of Affembly of the State of Virginia, upon which a bill of exceptions was filed ; and this is now affigned as one caufe of error.
Had the act come before them exemplified under the feal of the State of Virginia, the Court ought certainly to have admitted it, as it would then have been within the rule of law, which requires the utmoft evidence the nature of the fact is capable of ; but, as it was offered to them without fuch exemplification, or any proof of its being compared with the records of that State or even of its being printed by the Printer of the Laws of the State, I cannot join in the opinion, that the Juftices below have erred in rejecting it ; or, that their having refufed to admit it in evidence in that fituation, is a fufficient caufe for the reverfal of their judgment. It was offered to proved a fact refpecting a certain clafs of Virginia certificates ; and from the fact of it, I think it will appear, that it is not the whole law of the State refpecting thofe certificates. This might have been a reafon with the Court below for rejecting it, and I fhould have though it a fufficient one ; for a record is not to be taken by parcels, and the whole is evidence, or none.
We are to pay a due regard to the laws of our Sifter States, when we are under the neceffity of determining upon contracts which have taken place within thofe States, and have reference to thofe laws : but we are to be cautious, and not to fuffer ourfelves to be impofed on. Exemplifications are eafily obtained, and they are not expenfive. We find that the Judges in England have generally had the precaution to require exemplifications of acts of Parliament, which did not concern the kingdom in general, properly compared and certified, before they would admit them in evidence in their Courts of Juftice ; though made within kingdom, they do not deem themfelves obliged by their offices to take notice of them without fuch exemplification. And fo, I think it is a proper and neceffary precaution in the Courts here, to require certified copies of the laws of our Sifter States, before they are admitted with us ; efpecially when they appear before us, as this did, in pamphlets of a few fheets, not bound up with their body of laws ; and, as we are not obliged, and cannot be fuppofed, to know their laws, it feems the more neceffary.
As to the mis-trial in one of the caufes, it feems to me, that the parties themfelves at the time of the trial, waved every advantage that might have been taken of it. They permitted the amendment, and went on to trial without demanding an imparlance ; the merits of the caufe were fully heard ; and, after the Jury left
