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 THE INTRODUCTION OF DOCUMENTARY EVIDENCE

By JOHN E. TRACYt

F UNDAMENTAL to this discussion is the proposition that no

document can be admitted in evidence without some proof of
authentication. The required proof may be in the document itself,
in that it has become, by authority of statute or otherwise, what
we call "self-authenticating", but that in itself is authentication.
"A writing, of itself, is evidence of nothing, and therefore is not,
unless accompanied by proof of some sort, admissible as evidence." 1

SELF-AUTHENTICATING DOCUMENTS

Under exceptional circumstances, however, we can dispense with

proof of authentication. What are those circumstances?
1. When the document is admitted by the opponent to be authen-
tic. Such admission may be made under two different sets of cir-
cumstances:
(a) An admission made in open court when the document is
offered in evidence. Such an admission most often arises when the
introduction of the document in evidence is intended to be objected
to on some more basic ground than lack of authefitication. For
example: Proponent: "I offer in evidence the assessment book of
X county for the year 1935 obtained from the county treasurer's
office." Opponent: "Objection." The court: "Is your objection
that the book is not properly identified?" Opponent: "No. I
admit that it is the assessment book. My objection is that its con-
tents are irrelevant and immaterial in this cause." 2 On the other
hand, the admission may be a formal one, on the record, agreeing
that the document is genuine and waiving the formality of re-
quiring authentication.
(b) The other circumstance where authenticity is admitted is
where the document has been set forth by copy by the proponent
in his pleading and the opponent has failed to deny the genuine-
ness of the document, either in his pleading or by separate affidavit.
t Professor of Law, University of Miehigan Law School.
1 Bennine, J., in Stamper v. Griffin, 20 Ga. 312, 320, 65 Am. Dec. 628, 630
(1856).
2 See Miller v. Hale, 26 Pa. 432 (1856).
 INTRODUCTION OF DOCUMENTARY ERIDENCE
1939]

This failure to deny genuineness becomes an express admission of

authenticity only when it is so provided by statute or by court
rule; it does not exist independent of statute or rule. The statutes
and rules differ greatly in their language, but the general pro-
vision is that a party who is declaring or counterclaiming on a
written instrument may attach a copy of the same to his plead-
ing and proof of execution of the writing shall not be required
unless the answer or reply denying the same be verified or unless
3
the opponent file and serve an affidavit denying execution. A
statute or rule along the same lines may provide that when any
public records are to be used as evidence, the party intending to
use them may prepare a copy of the parts to be used and present
such copy to the adversary by notice in writing, and on the trial
such copy shall be admissible in evidence as admitted facts, if other-
wise admissible, except insofar as its inaccuracy shall be pointed
out under oath by the adversary in an affidavit filed within ten
4
days after service of the notice.
A somewhat kindred rule is one permitting a party before trial
to submit to his adversary any paper material to the action and
request an admission of its genuineness; if the adversary refuses
to give such admission and the party exhibiting the paper is after-
wards required to prove its genuineness, it is required that the
expense attendant upon the procuring of such proofs, including
a reasonable counsel fee for the time and attention devoted thereto,
be paid by the party refusing the admission, unless the court is
5
satisfied that there were good reasons for the refusal.
The statutes and rules above mentioned are usually clear in their
meaning and present few problems of construction. The problem
that most often reaches the courts is as to the sufficiency of the
denial of execution. An example of such a problem is contained
in a leading Minnesota -decision, National City Bank v. Zimmer
Vacuum Renovator Company.6 In that case the managing officers
of a corporation absconded, taking with them all books and records
of the corporation. The corporation was later sued on a promissory
note alleged to have been issued by it. The plaintiff pleaded the

sExamples of such statutes and rules axe CAL. CODE Crv. Pnoo. (Deering,
1933) § 447; MAss. GEx. LAws (1920) e. 231, § 9; Moir. CoURT RuLEs
(1931), Rule 29; IND. STAT. ANN. (Baldwin, 1934) §§ 135, 137; IOWA CODE
(1935) §§ 11203-04, 11218-19; Omo CODE (1930) § 10376.
4ILL. PRACT. RULES (1933), Rule 18(3).
5Id. at Rule 18(1).
6132 Minn. 211, 156 N. W. 265 (1916).
 IOWA LAW .RBVI.W [VOL.. 24

note by copy, and the defendant answered, denying execution. The

answer was verified, in that it was accompanied by the usual
form of verification, but it was sworn to, not by an officer, but
by a stockholder. The plaintiff offered in evidence the note set
out in the comp]aint without any further proof of genuineness, and,
the defendant offering no proof that the notes were not authentic,
the court directed a verdict for the plaintiff. On appeal the court
quoted the Minnesota statute that "Every written instrument pur-
porting to have been signed or executed by any person shall be
proof that it was so signed and executed until such person shall
deny the signature or execution of the same by his oath or affida-
vit, 1 7 and held that the denial contemplated by the statute was to
be made by some person having personal knowledge of the facts,
here that of whether the instrument had been executed as an ob-
ligation of the corporation. As there was nothing in the answer
filed or in the verification thereto to show that the person verifying
possessed any knowledge of the business transactions or affairs of
the company during the time in question, the answer was held not
sufficient to put in issue the genuineness of the instrument sued
upon.
2. Ancient Documents. This theory of self-authentication ex-
isted at common law and still exists in practically all jurisdictions.
If there is any statute governing such practice, it will usually be
only declaratory of the common law." The theory of admissibility
of such a document is, of course, that of necessity; so much time
has elapsed since the execution of the writing that witnesses are
likely to be unavailable, and, in the case of attesting witnesses,
proof of their signatures may be impossible. To make its applica-
tion safe, the rule, as developed by the courts, has definite require-
ments and limits: (1) the writing must be at least thirty years
old,0 although a few courts have admitted documents of a slightly
lesser age;'10 (2) it must have come from a proper custody;" (3)
7 MNii. GN. STAT. (1913) § 8448; ManN. STAT. (Mason, 1927) § 9887.
8E. g., CAL. CODE CIv. PRO. (Deering, 1933) 0 1963, para. 34; GA. CODE
(1933) § 112; MONT. REV. CODEs Am. (Anderson & McFarland, 1935) § 10606.
9 Fronsoe v. Bushnell, 251 Fed. 850 (C. 0. A. 6th, 1918); Turner v. Davis
186 Ala. 77, 64 So. 958 (1914); Rowe v. Henderson Stores, 143 Ga. 756, 85
S. E. 917 (1915); Smith v. Rankin, 20 II. 14 (1858); Clark v. Owens, 18
N. Y. 434 (1858); Wright v. Hull, 83 Ohio St. 385, 94 N. E. 813 (1911);
Schmitt v. Carbondale, 257 Pa. 451, 101 Atl. 755 (1917); Mapes v. Teal's
Heirs, 27 Tex. 345 (1864).
:o Woods v. Montevallo Coal Co., 84 Ala. 560 (1887); Everly v. Stoner, 2
Yeates 122 (Pa. 1796).
i Long v. Georgia Lumber Co., 82 Ga. 628, 9 S. B. 425 (1889); Carter v.
1939] INTBODUCTION OF DOCUMENTARY BYIDENCE

it must show on its face freedom from alterations, blemishes and

circumstances of a suspicious nature ;12 (4) where the instrument
is one of conveyance, there must algo be, in some jurisdictions, proof
13
of possession of the property so claimed to have been conveyed.
The rule is not limited to instruments of conveyance, as is by
many lawyers supposed to be the case, but is applicable to writings
4
of every kind, both public and private.
3. Acknowledged Instruments. This is the form of self-authen-
ticating document that has probably the most common use. An
acknowledged instrument becomes self-authenticating only because
made so by statute, but the passage of legislation making such an
instrument admissible in evidence without further authentication
has become such a universial practice that a statute to that effect
will be found in practically every jurisdiction. The main purpose
in enacting these statutes has been to make the acknowledgment
such proof of the due execution of the instrument that it is en-
titled, without further proof, to recordation; and it was carrying
the theory only a step further to make the certificate of acknowledg-
ment proof of due execution in legal proceedings. The statutes
on this subject are by no means uniform and every statute must
be studied separately to ascertain its exact provisions and mean-
ing.15 As the legislation has ordinarily been in connection with
provisions for recordation, many of the statutes providing for
the admissibility in evidence of acknowledged instruments are ex-
pressly applicable only to instruments of conveyance.' 6 Many
legislatures have provided, however, that any written instrument
(usually excepting promissory notes, bills of exchange, and wills)
may be acknowledged in the manner provided for the taking of
Maryland Ry., 112 Md. 599, 77 Atl. 301 (1910); Peterson v. Bauer, 83 Neb.
405, 119 N. W. 764 (1909); Byrd v. Phillips, 120 Tenn. 14, 111 S. W. 1109
(1907).
12 O'Neal v. Tennessee Coal Co., 140 Ala. 378, 37 So. 275 (1903); Hill v.
Nesbit, 58 Ga. 586 (1877); Lau v. Mumma, 43 Pa. 267 (1862); Schmitt v.
Carbondale, 257 Pa. 451, 101 AtL. 755 (1917).
's Beverly v. Burke, 9 Ga. 440 (1851); Gittings v. Hall, 1. Har. & J. 14
(Md. 1800); Waldron v. Tuttle, 4 N. H. 371 (1828).
14 State v. Taylor, 135 Ark. 232, 205 S. W. 104 (1918); Cooney v. Booth
Packing Co., 169 Ill. 370, 48 N. E. 406 (1897); Lunger v. Sechrest, 186 Ill.
App. 521 (1914); Adams v. Dickson, 23 Ga. 406 (1857); Coleman v. Bruch,
132 App. Div. 716, 117 N. Y. Supp. 582 (1st Dep't 1909).
15 See list of statutes in note to 3 WIGUoRE, EVIDENCE (2d ed. 1923) § 1676,
and WIGMoRE, EVIDENcE (Supp. 1934) § 1676.
16 E. g., ILL. REV. STAT. (1937) c. 30, § 35.
 IOWA LAW BEYIEW [VoL. 2

acknowledgments of conveyances of real estate and have stipulated

that the certificate of acknowledgment shall entitle the instrument
to be received in evidence on the trial of any action with the same
7
effect as if such instrument were a conveyance of real estate.1
The statutes name the officers before whom the certificate of
acknowledgment may be taken, including, in practically all juris-
dictions, notaries public, and often judges of courts of record, a
clerk or commissioner of such courts, justices of the peace and
commissioners of deeds. When the instrument has been acknowl-
edged in the jurisdiction where it is sought to be introduced in
evidence, there is little difficulty in proving the official character
of the certifying officer, for courts will take judicial notice of do-
mestic officials and their identity,"" and the genuineness of their
seals and signatures is presumed.' 9 When, however, the document
was executed in another jurisdiction, the problem of proof becomes
more difficult. It was squarely faced by the Supreme Court of
New York in an early case, 20 where there was offered in evidence
in a New York court a deed purporting to have been acknowledged
before "David Daggett, a judge of the superior court of Connecti-
cut". There was no other evidence of authenticity. The court
held that "when the certificate describes the proper officer acting
in the proper place, it is taken as proof both of his character and
local jurisdiction" (and, apparently, of his signature, for there
was no other proof of signature). Under modern statutes the court
does not have to go so far, for the statutes quite generally provide
that a certificate of acknowledgment taken without the state is
authenticated by the seal of the certifying officer or, in the cases
where he has no seal, by the certificate of a clerk or other proper
certifying officer of a court of record in the jurisdiction where the
acknowledgment was taken under the seal of such court, testifying
as to the official character and signature of the officer before whom
the aclmowledgment was taken.2 '
4. Reply to a Letter. This is a rule of self-authentication worked
out by courts in their exercise of good sense. 22 The rule is that
17 B. g., N. Y. Civ. PFIo. ACT § 386.
18 5 WIGoME, EVIDENCE, § 2576.
10 Id. at §§ 2161-68.
20 Thurman v. Cameron, 24 Wend. 87 (N. Y. 1840).
21 B. g., AfoH. ComP. LAws (1929) §§ 13285-86.
22" I hold this doctrine to be self-evident, viz: One of the inherent powers
of a court of equity is the right to act with good sense-' Lamm, J., in State
v. Shelton, 238 Mo. 281, 295, 142 S. W. 417, 421 (1912).
1939] INTRODUCTION OF DOCUMENTABY EVIDENCE

when there is satisfactory proof that one of the parties has sent
to the other a letter, a document which purports to be a reply to
such letter is admissible in evidence without further proof of authen-
tication. The common sense lying back of the rule is that there
is little question as to the genuineness of the document and that
to require proof by the offering party of such genuineness would
be to impose on him a burden that in many cases it would be im-
possible to meet. The rule has had quite universial acceptance by
the courts, 23 and has been broadly applied so as to cover even a
reply by one agent of a corporation to a letter addressed to another
agent of such corporation.2 4 It will be noted, however, that an
essential prerequisite to the introduction in evidence of such docu-
ment is proper proof in the record of the sending of the original
letter to which the offered document was a reply. 25 In the prep-
aration of such proof it must be remembered that in all but ex-
ceptional instances the original letter will be in the possession of
the adversary and compliance must be had with the requirements
of the "best evidence" rule. Another prerequisite to the intro-
duction in evidence of the reply letter as a self-authenticating
document would appear to be that it show on its face that it is
a reply to the original letter, either by direct reference to the
original letter or by consideration of the subject matter in such
manner as to indicate that the writer has seen and is replying to
such letter.

METHODS op' AUTHENTICATION

Unless the document offered is one of those instruments described

above, which are self-authenticating in their nature, it will be
necessary that it be duly authenticated before it can be received
in evidence. What are the proper methods of authentication?
1. By Proof of Signing. This is the method of authentication
most commonly used. A witness testifies that he saw the parties
sign, or, if the desire be to prove only one signature, that he saw
such person sign, or the testimony may even be that the witness
26
saw another person affix a party's signature at the latter's request.
In this connection mention must be made of the ancient "attested
23 4 WIGUORE, EVIDENCE, § 2153.
24 Louisville & Nashville R. R. v. B. J. O'Brien & Co., 168 Ky. 403, 182
S. W. 227 (1916) (freight claim-letter to local agent-reply from claim
agent).
25 Consolidated Grocery Co. v. Hammond, 175 Fed. 641 (C. C. A. 5th, 1910).
26 See Matthews v. J. B. Colt Co., 145 Md. 667, 125 Atl. 840 (1924).
 IOWA LAW REVIEW[ [VOL,. 24
document" rule, which required that the execution of an attested
document be proved by a subscribing witness and by no one else.
If the subscribing witness was not available, the execution could
be proved only by evidence of his handwriting. 7 The application
of this rule was sufficient to bar the testimony of one who actually
saw the document signed but did not happen to be a subscribing
28
witness thereto.
In most jurisdictions the rule has been abolished by statute as
to instruments not requiring attestation, 29 but it still exists as to
such instruments as conveyances of real estate, which quite general-
ly require attestation, and wills, which always do. In the case of
wills, the requirement as to calling subscribing witnesses does not
disturb the practitioner, for he will always expect to prove the
will in this way. As to instruments of conveyance which have been
acknowledged, the practitioner will also encounter no difficulty, for
he can usually prove his instrument by producing the official record
or a certified copy thereof, or, if the instrument was not recorded,
by offering in evidence the original instrument with the certificate
of acknowledgment. In the rare case, however, of an instrument
of conveyance which was required to be attested and, for some
reason, was never acknowledged, the ancient rule as to subscribing
witnesses still applies, and the attorney who wishes to prove such
a document must be prepared to comply with it.°
2. By Proof of Signature. This is probably the next most com-
mon method of authentication. The witness did not see the party
sign, but is familiar with his signature and can identify the sig-
nature on the executed document as the genuine signature of the
person purported to have signed.8 ' "There are no subscribing
witnesses to the deed. It was therefore allowable at common law
to prove the signature by anyone acquainted with his [the person
signing the deed] handwriting. Such evidence was as competent
and valid as the testimony of the writers themselves. It is in no
sense secondary evidence."32
27 For a lengthy discussion of the attested document rule, see 2 WIGMoRE,
E vimuoE, §§1287-1321.
28 Henry v. Bishop, 2 Wend. 575 (N. Y. 1829).
2D E. g., N. Y. Civ. PRAc. AcT § 331.
30 See Hatch v. Fowler, 28 Mich. 205 (1873), where the attested instrument
was a contract of sale.
31 This method of authentication is by testimony of witnesses only and is
not to be confused with the method of comparison of signatures to be discussed
under the next sub-heading.
3
2Swayne, J., in. United States v. Moreno, 1 Wall. 400, 403 (U. S. 1863).
1939] INTBODUCTION OF DOCUMENTABY EYIDENCE

To entitle the witness to testify as to the genuineness of a sig-

nature he must, of course, be qualified. Such qualification is not
that he be shown to be a handwriting expert, but only that he
be shown to be a person acquainted with the handwriting of the
person whose signature he identifies and that from such acquaint-
ance he is satisfied that the signature is genuine. In the language
of the court in a well-known decision,3
"One is deemed to be acquainted with the handwriting
of another person when he has seen him write, though but
once, and then only his name; or when he has received
letters or other documents purporting to be written by
that person in answer to letters or other documents written
by the witness or under his authority and addressed to
him; or when he has seen letters or other documents pur-
porting to be that person's handwriting, and has after-
wards personally communicated with him concerning their
contents, or has acted upon them as his, he knowing there-
of and acquiescing therein; or when the witness has so
adopted them into business transactions as to induce a
reasonable presumption and belief of their genuineness;
or when in the ordinary course of business documents pur-
porting to be written or signed by that person have been
habitually submitted to the witness."
These suggested bases for qualification of the witness, taken, by
the writer of the opinion, from Stephen's Digest of Evidence, are
subject, of course, to limitations, exceptions, and additions in ex-
treme cases, but the statement does represent the general view
taken by the courts on this subject.3 4 However wide the acquaint-
ance of the witness with the handwriting of the person in question
may be, the witness is not qualified on the subject unless he is
willing to state that such acquaintance establishes in his mind a
fairly definite conviction as to the genuineness of the signature in
question. The witness need not swear positively. His statement
that he "believes" or even that he "thinks" the signature to be
genuine is considered by most courts to be sufficient, 35 although
one court has held that the expression of the witness "it looks like
3
it" was insufficient as a basis for the admission of the evidence. 6
3. By Comparison of Signatures. A more difficult problem is
presented if the attorney who wishes to prove the signature can
33 Redding v. Redding's Estate, 69 Vt. 500, 38 AtI. 230 (1897).
34 See exhaustive note in 63 L. R. A. 963-88 (1904).
35 1d. at 979.
36 Fullam v. Rose, 181 Pa. 138, 37 Atl. 197 (1897).
 IOWA LAW .EVIEW[ [VoL 24
produce no witness who saw the party sign; he can produce no
witness who is sufficiently familiar with the party's signature to
be able to testify as to the genuineness of this specimen; but he
does have in his possession another document signed by such party
which the attorney has every reason to believe is authentic and
contains such party's true signature. Can he submit such docu-
ment to the jury, to enable them, by comparison of this document
with the document in question, to determine the genuineness of
the latter? A complete answer to that question would involve an
examination of all the English cases and the American cases in
practically every jurisdiction, for the English courts have laid down
certain rules which they have later changed, and the position taken
by American courts has depended upon whether they made their
3 7
first ruling on the basis of the earlier or the later English decisions.
The principal problem that has puzzled the courts has been that,
conceding that a comparison of signatures would aid the court and
jury in arriving at a proper conclusion as to the genuineness of
the signature in question, the court would not only be confronted
with the danger of unfairness and fraud in the selection of spe-
cimens for comparison, but would always have before it the col-
lateral issue of the genuineness of the specimen offered. The prob-
lem was solved for a time by ignoring the first question and elimi-
nating the question as to a collateral issue by permitting comparison
only with such writings as had been admitted in evidence as other-
wise relevant to issues in the case. It was seen, however, that by
enforcing this rule it made the problem of obtaining comparison
of signatures merely a matter of chance whether some document
could be found which would be a specimen of the party's hand-
writing and which would also be independently relevant in the
case. Later many courts, in their discretion, adopted the rule that
they would accept for purposes of comparison any document which
was proved to the satisfaction of the court to be genuine, either by
admission of genuineness by the adversary or by proof to the judge
on a preliminary issue as to that fact.3 8 This is now the most
generally prevalent rule in the United States, it having been en-
acted into statute in many jurisdictions, although, in certain juris-
37 The history of the English rulings and a statement of the various Amer-
ican rulings by jurisdictions are set out in an exhaustive note on the general
subject in 62 1. R. A. 817-74 (1904).
38 For an excellent discussion of the reasons necessitating such change in
rule, see University of nlinois v. Spalding, 71 N. H. 163, 51 At. 731, 62
L. R. A. 817 (1901).
1939] INTBODUCTION OF DOCUMENTARY EVIDENCE

dictions, the court will still require the comparison document to

be independently admissible. 9
Although the question of genuineness from comparison of hand-
writing is one for the jury and the determination will be made by
them, they are usually aided in the trial of such an issue by the
testimony of handwriting experts. A handwriting expert may be
a man who has made that study his profession or it may be one
who pursues some other business or profession in which his duties
involve a somewhat constant inspection of different kinds of hand-
writing, examples of such witnesses being a bank teller, a bank
cashier, a clerk, a bookkeeper, or a teacher of penmanship. 40 These
men testify, under the opinion rule, as experts on a scientific sub-
ject of which they presumably know more than do the members
of the jury.

SPECIAL PROBLEMS AS TO AuTiENTIcATIoN OF TELEGRA~xS

A telegram is a peculiar document. It is a writing within the

requirements of the Statute of Frauds and is subject to the parol
evidence and the best evidence rules, but, due to the fact that the
transmission -by the agent (the telegraph company acting as the
agent of either the sender or the addressee, depending upon the
circumstances of the sending) is not of the document delivered to
the agent, but of the contents thereof, the document finally de-
livered by the agent to the addressee is an entirely different piece
of paper from that which was delivered to the agent by the sender.
A telegram, therefore, presents problems of authentication which
are in many respects more difficult than are the problems attend-
ant upon proving correspondence by letter. There are certain
respects, however, in which the problems as to proof of letters and
of telegrams are similar. For instance, a telegram is not admissible
in evidence simply because it is a telegram. Its authenticity must
39 A discussion as to what is the prevailing rule in each American jurisdic-
tion is contained in an exhaustive note in 62 L. R. A. 835-61 (1904), supple-
mented by a later note on the same subject in 18 1. R. A. (N.s.) 520 (1909).
As to the sufficiency of the proof of genuineness, what genuine documents are
competent standards, etc., see Note, Competency of Hand-writngs as Standards
of Comparisons (1904) 63 L. R. A. 427.
40 See Note, Competency of Witnesses to Handwriting (1904) 63 L. R. A.
963-88; Note, Examination of Witnesses to Handwriting by Comparison (1904)
63 L. R. A. 163-78.
41 Cobb v. Glenn Boom & Lbr. Co., 57 W. Va. 49, 49 S. E. 1005 (1905).
 IOWA LAW REVIEWO2 [VOL. 24

be proved.' 2 Furthermore, a telegram which purports to be a reply

to one previously sent by the addressee to the purported sender
is admissible without further authentication, on the same principles
43
as those applicable to a reply to a letter.
The first problem that confronts an attorney who is contemplating
offering a telegram in evidence is as to the best evidence rule.
Where is the original document? The answer to that question will
involve a study of certain principles of substantive law. In the
sending of this message was the telegraph company the agent of
the sender or of the addressee? If of the addressee, the original
will be the message filed at the sending office; if of the sender, the
44
original will be the message delivered to the addressee. The suit
may be one for libel by telegram; for breach of contract in which
the offer, the acceptance or the repudiation was by telegram; for
damages against the telegraph company for delay in delivery or
for failure to properly transmit; but, in each case, the rules of
the substantive law applicable to the situation will point out which
is the original telegram for that particular case. 45
If the original telegram is the one delivered to the transmitting
office, the proper method of proof would be to compel its production
by subpoena duces tecum addressed to the local agent of the tele-
graph company at the sending point. When produced, there would
still be the question of identification of the signature of the sender,
which would have to be proved in the same way as the signature
to any other written document. If, as is so often the case with
business telegrams, the filed message and the signature thereto are
both typewritten, the problem of identification of signature may
be more difficult, involving testimony of clerks of the sender as
to who wrote it and what official authorized its sending, and possibly
of the telegraph messenger who was called to that particular office
to receive the message. If the telegram, instead of being written
and filed, was telephoned to the operator, the problem becomes still
42 Drexel v. True, 74 Fed. 12 (C. C. A. 8th, 1896) ; Reininger v. Besley, 16
Ariz. 161, 141 Pac. 574 (1914) ; Burt v. Winona & St. Paul By., 31 Minn. 472
(1884).
43 Edwards Bros. v. Erwin, 148 N. 0. 429, 62 S. E. 545, 16 Am. Cas. 393
(1908) ; Western Twine Co. v. Wright, 11 S. D. 521, 78 N. W. 942, 44 L. R. A.
438 (1899).
Wilson v. Railroad Co., 31 Minn. 481, 18 N. W. 291 (1884); Cobb v.
Glenn Boom & Lbr. Co., 57 W. Va. 49, 49 S. E. 1005 (1905).
45 See interesting discussion of this question in Howley v. Whipple, 48 N. H.
487 (1869); also Anheuser-Busch Brewing Ass'n v. Hutmacher, 127 ]1. 652,
21 N. E. 626 (1889); Morneault v. Cohen, 122 Me. 543, 120 Atl. 915 (1923).
1939] INTJIODUCTION OF DOCUMENTABY EYIDENCE

more difficult. There is no problem as to the instrument being in

writing, as, by telephoning the message, the sender makes the
operator his agent to make the writing; but there is always the
question of the identity of the person who telephoned. Unless the
operator can testify that he knew and recognized the sender's voice,
or unless there is circumstantial evidence connecting the alleged
sender with the message, there would seem to be no way of proving
the writing, in the face of a denial by such alleged sender that he,
or anyone authorized by him, telephoned the message.
Where the original telegram is the one received by the addressee,
he will usually have such original in his possession; but the prob-
lem as to authentication must still be faced. Testimony may be
taken of the telegraph operators through whom the message was
sent, but to make strict proof of authenticity might require the
testimony of both operators involved. This would not only entail
great expense, but the operators would very often not remember.
A more simple method by which the court can satisfy itself of
authenticity was pointed out by the Supreme Court of Minnesota
in a fairly recent decision."8 In that case, which was being tried
at Duluth, a party desired to offer in evidence certain telegrams
which had been sent from Duluth to New Orleans. The court de-
cided that the originals were those received in New Orleans, The
offeror had what he claimed to be the instruments received, but
they still required authentication. The court said :47
"Modern methods have made of historical rather than
practical interest the rule that the authenticity of tele-
grams '.. . may be shown by proof of the handwriting of
the sender.' 2 Jones, Ev. (2 ed.) § 802. Ordinarily other
indicia of authorship must be sought. It is difficult, if not
impossible, to formulate a standard of admissibility at once
definite and dependable. But it occurs to us that any rele-
vant writing may be admitted when from its contents and
other circIumstances in evidence it is reasonably inferable
that the author is the person sought to be charged or an-
other lawfully acting for him.... The modern use of me-
chanical devices in all correspondence, particularly that
by telegraph, must be considered-understandingly. It
may be one of those things with respect to which the com-
mon law of evidence should demonstrate its ability to
adapt its concepts of admissibility to the current and uni-
versal practices of business. The need will remain however
L6Lundgren v. Union Indemnity Co., 171 Minn. 122, 213 N. W. 553, 52
A. L. R. 580 (1927).
47 Id. at 125, 213 N. W. at 555.
 IOWA LAW BEYIEW[ [VOL,. 24
to bring forward the best evidence which the case sensibly
permits. That done, the writing should be admitted if
from the evidence there can be drawn the necessary in-
ference of authorship."
The court then showed how the telegrams offered in evidence con-
nected themselves with letters, other documents and various cir-
cumstances in the case, and that these circumstances would justify
the logical inference that the plaintiffs were likely to have been the
senders of the messages. The court held, however, that the ex-
clusion of the telegrams by the trial judge was not error, in view
of the fact that no attempt was made to obtain authentication by
the testimony of the alleged senders, who were in court. It will
be noted that in this decision the court merely carried further the
common-sense rule by which is admitted in evidence a reply to
a letter because of its inherent quality of genuineness. There is
good reason to support a prediction that the rule so laid down by
the Minnesota court will receive increasing recognition and support
and will be quite generally applied in those cases where the cir-
cumstances fairly warrant its application.

PUBLIC RECORDS

In discussing the methods of authenticating public records, the

writer, adopting Dean Wigmore's classification,"8 will separate such
records into the three classes of Registers, Returns, and Certificates.
1. Registers. A register or record usually comprises in a single
volume a series of homogeneous statements recorded by entries
made more or less regularly. 49 Its keeping is usually required by
statute and its contents are made admissible by statute; but, if it
is a public record regularly kept, it is admissible in evidence even
though there is no statute providing for its keeping.50
Although it is occasionally stated that such a record is admissible
without further proof of authentication, that would be only because
the trial judge was willing, from long acquaintance with such
record, to take judicial notice of its genuineness. Ordinarily,
genuineness will have to be proved. This can be done in either
of two ways: (1) by the testimony of the officer having custody
of the record; (2) by certificate by such officer as to a copy thereof.
The officer whose duty it is to keep such record is the proper
48 3 Wxg!osE, fEv m E, § 1637.
40 Iid.
so Browning v. Flanagin, 22 N. J. . 567 (1849).
1939] INTRODUCTION OF DOCUMENTARY EVIDENCE

person to testify as to its genuineness and his testimony to that

effect will make the record admissible, whether he is an officer
of the state where the case is tried or of some other state.21 His
testimony as to such record will serve to authenticate it even though
the legislature of the state where the record is kept has specified
2
a single method of proof, such as a certificate as to its contents
There is little difficulty with this method of identification.
However, it is a great interference with the public service to
take the officer away from his duties to attend as an authenticating
witness; and it may not accord with the public service to take the
record away from its proper place of custody. Two solutions to
this problem have been worked out-one by comity of counsel and
the other by courts and legislatures.
By comity of counsel, it is often the practice, in proving a chain
of conveyances of real estate, to make a record offer of a document
without producing the same or having it authenticated. For ex-
ample, counsel in an ejeetment suit will, without objection, simply
dictate into the record, from his abstract of title, an offer, "Plain-
tiff offers in evidence the record of a patent from the United States
of America to Henry Jones, dated September 2, 1880, and recorded
in the office of the Register of Deeds of X County, Iowa, on Sep-
tember 14, 1880, in Volume 81 of Deeds at page 103," so continuing
until a conveyance is reached as to which the opponent has some
question; and then objection will be made and the record of that
conveyance will be produced and authenticated.
The solution reached by courts and legislatures is to make ad-
missible either an exact copy of the record, certified as such by
the custodian officer, or a certificate by such custodian as to the
contents of the document. A familiar example of the latter is a
weighmaster's certificate.
At English common law there was no authority in a public officer
to certify copies, except as such authority might be granted him
by statute. In the United States, Chief Justice Marshall laid down
the rule in an early decision that, "on general principles of law,
a copy given by a public officer whose duty it is to keep the original
should be given in evidence;" and this rule, it is stated by Dean
Wigmore, "' 4 "may be said to have become the orthodox common
law of the United States," although there are some decisions to
51 Miller v. Northern Pacifie Ry., 18 N. . 19, 118 N. W. 344 (1908).
52 hid.
53 United States v. Percheman, 7 Pet. 51, 85 (U. S.1833).
54 3 Wio mom, EviDEsE, § 1677.
 IOWA LAW .BBVIW [VoL,. 24
the contrary 5 However, the common-law theory is seldom in-
voked, for Congress and practically every state legislature have
passed statutes permitting the use of certified copies to prove prac-
tically every kind of public record.5 6 In proving documents under
such statutes the most important thing to bear in mind is that the
statutes have usually been enacted haphazardly and are not at
all alike in their provisions or consistent in the theory of their
enactment. In one case, they may make a certified copy of a
certain record the proper method of proof and in another case,
they may provide that the method of proof shall be a certificate
of the custodian officer as to the contents of the record. Nothing
but a literal copy will meet the rule of the common law, and a
certificate as to content can be used only if that method is per-
mitted by statute.57 Therefore, if one who has not consulted the
statute should attempt to introduce a certified copy where the
statute specified the use of a certificate, he could fall back upon
the common-law rule permitting proof by certified copy; but, if
the statute required a certified copy, his offer of a certificate would
be ineffective.
As to copies certified by an officer in the jurisdiction where the
case is tried, there is little difficulty of proof, for the statute will
usually specify the method of certification; and, in the absence
of statute, the court will take judicial notice of the authority of
the certifying officer as the custodian of such document, of the
incumbency in such office of the person signing the certificate, of
58
the genuineness of such officer's seal, and even of his signature.
The principal difficulty will come in offering certificates of officers
of foreign jurisdictions. Here the doctrine of judicial notice does
not avail, either as to the foreign law creating the custodianship,
the encumbency of the office, or the signature or the seal of the
foreign officer.5 9 To take care of such situations, nearly every
state has enacted legislation providing a method of authentication
for certified copies of foreign documents; and Congress has also
enacted legislation of its own, which provides general methods of
55R . g., State v. Cake, 24 N. J. L. 516 (1854).
56 B. g., in the index to Iic. Coup. LAws (1929), the items under the
heading of "Certified CopiesII cover nine and one-half columns.
57 Green v. Durfee, 6 Cush. 362 (Mass. 1850); Wood v. Knapp, 100 N. Y.
109, 2 N. E. 632 (1885).
58 3 Widzopm, EvmEmc, § 1679.
50 Reed v. Stevens, 120 Me. 290, 113 AtL 712 (1921).
1939] INTRODUCTION OF DOCUMENTABY EVIDENCE

proof of such documents under the full faith and credit clause of
the Constitution.
The state legislation may be a series of statutes, each applicable
to a separate class of public records, or there may be one general
statute permitting to be offered in evidence copies of any foreign
public record if authenticated in a certain way, sometimes by the
seal of the certifying officer alone and more often by his seal or
signature if accompanied by a certificate of another well known
officer of the state. The latter will usually be a clerk of a court
of record or the secretary of state, and the certificate will be to
the authority and official status of the officer who has certified the
record and to the genuineness of the latter's signature and seal.
The two federal statutes on this subject provide for authen-
tication of three classes of foreign public documents: (1) statutes;
(2) records of judicial proceedings; (3) all other public records.
Statutes are authenticated by having the seal of the state or terri-
tory affixed thereto. 60 Records of judicial proceedings are authen-
ticated by the attestation of the clerk of the court of which they
are a record and the seal of the court, if there be a seal, together
with a certificate of the judge, chief justice, or presiding magistrate
of such court that the said attestation is in due form.6 1 All other
foreign records are authenticated by the attestation of the keeper
thereof and the seal of his office, if there be a seal, together with
a certificate of the presiding justice of the court of the county,
parish, or district in which such office is kept, or of the governor
or secretary of state, the chancellor, or keeper of the great seal
of such state or territory, that said attestation is in due form and
by the proper officer. If the last-named certificate is given by a
judge, it must, in turn, be authenticated by the certificate of the
clerk of said court that said judge was duly commissioned and
qualified; if given by the governor, etc., it must be under the great
62
seal of the state.
It is unfortunate that, in enacting such legislation, Congress
saw fit to have different methods of authentication, depending upon
the kind of document attested. An attorney who has not studied
the statutes in detail will be apt to offer a document which would
be properly authenticated if it were a judicial record, but which
60 28 U. S. C. A. § 687 (1927).
61 Ibid.
62 Id. at § 688.
 IOWA LAW REVIEW[ [VoL. 24

is inadmissible as a non-judicial record for lack of the additional

certificate required for the latter class of records.
It will be understood, of course, that the provisions of the federal
statutes are not exclusive, and that a foreign record may be authen-
ticated in any one of three ways: (1) by compliance with the
federal act, (2) by compliance with the state act (the state of
venue), and'(3) by the testimony of the custodian officer.6
2. Returns. A return or report is usually a single document
made separately for each transaction as the occasion arises. The
term "return" ordinarily applies to something done personally
by the officer, but the term "report" applies to the results of an
investigation of a matter not originally occurring within the of-
6
cer's personal knowledge.
Although the legislature may, by statute, authorize a return by
any kind of officer, in which statute provision will generally be
made for proof of authenticity, at common law there were only
two sets of officers authorized to make returns-sheriffs and sur-
veyors. These will therefore be the only returns here discussed,
as to methods of proving authenticity.
A sheriff's return, if the sheriff is of the state of venue, is a self-
authenticating document. So well known is this rule that it is
almost impossible to find judicial authority in support thereof. It
has always been generally so recognized, probably for two reasons:
one, the nature of the office-the sheriff, under the theory of the
common law, being the direct agent of the Crown ;65 the other, the
willingness of the courts to take judicial notice of the incumbency
and significance of such an important officer. 6 Neither of these
reasons would be applicable to the return of a sheriff of a different
state; and the genuineness of such return will have to be proved,
either as a public record, under the state or the federal statutes,
or by the testimony of the officer himself.
A return of a surveyor is admissible if the surveyor was a public
officer, but not if he was a private person, even though his survey
was filed in a public office.67 If admissible, the return would be
properly authenticated by the custodian of the office in which it
63 See note 51, supra.
o4 3 WIGuoRE, EVIDENCE, § 1664.
or See Sunderland, The Sriff 8 Return (1916) 16 COT. L. REV. 281.
00 WO rxR, EviDENcE, § 2576; Ingram v. State, 27 Ala. 17 (1855).
67 Maples v. Hoggard, 58 Ga. 315 (1877); Wilder v. St. Paul, 12 Minn. 192

(1866).
1939] INTBODUCTION OF DOCUMENTABY BVIDENCE

was filed, either by his testimony or by his certification of a true

copy thereof; or, if there be a statute providing for authentication,
by compliance with such statute. The custodian who may authen-
ticate is that of the office in which the return is provided by law
to be filed, not where it may have been copied. Therefore, a plat
of the city of Dubuque prepared under an act of Congress which
provided that the plat should be returned by the commissioner to
the secretary of the treasury, could not be proved by a copy of
the same kept in the office of the city engineer, even though he
testified that it was the official map of Dubuque and recognized
as correct.""
While the general nature of the public office may contemplate
the making of a return by the encumbent thereof, there is no im-
plied authority to make an investigation and report. Therefore,
for a report to be admissible it must be made so by statute. There
has been a certain amount of legislation on this subject, familiar
examples of which are: official censuses of population, manufac-
turers, agriculture, etc.; official chemical analyses of fertilizer and
of intoxicating liquor; reports of building inspectors, bank ex-
aminers, insurance commissioners, probation officers, and psychi-
atrists. These statutes will usually specify a method of authen-
tication; in the absence thereof, the report will be proved, as any
public record, by the testimony of the custodian in which office
it is filed or by his certification of a true copy thereof.
3. Certificates. This class of public documents includes certified
copies, which have already been discussed. There remains for dis-
cussion the certificate in its pure form, a statement by a public
officer of something which has been done or observed by him, or
exists in his office by virtue of some authority or duty, e.g., death
certificates, birth certificates, marriage certificates, certificates of
protest, certificates of discharge from the army.
The admissibility of a certificate is in practically all cases de-
pendent upon some statute. The only certificate admissible at
common law was a notary's certificate of protest. Even this com-
mon-law rule of admissibility was of limited value, for the cer-
tificate of protest was admissible to evidence only the dishonor
of a foreign bill of exchange and was of no value in the case of
an inland bill, or of any note, or to prove notice, or any other fact,
except dishonor. This limitation has resulted in the enactment
of a great deal of legislation, not only to enlarge the common-law
68 Pfotzer v. Mullaney, 30 Iowa 197 (1870).
 IOWA LAW BEVIEW [Vor,. 24

rule as to admissibility of certificates of protest of notaries public,

but to authorize the issuance of certificates to prove a very large
number of official facts as to things done by an officer, or as to
official records in his possession. 6 9 Most of these certificates are
made, by the statute authorizing their issuance, self-authenticating.
There is one class of certificates, however, which is in very com-
mon use, but as to which the statutes of admissibility are generally
silent, probably because such certificates are issued not by a state
officer, but by a federal officer, viz., certificates of service in the
army or navy. While occasionally a statute will be found authoriz-
ing their admission, in most cases admissibility has depended on
court decision. The broader-minded courts have generally admitted
such certificates, 7 0 and those more inclined to technicalities have
71
generally excluded them.

BusINEss REcoRms
To understand thoroughly the problems attendant upon the
authentication of business records there must be borne in mind
the development of the law as to the admissibility of such entries
as an exception to the hearsay rule.
Under the rule which formerly excluded the testimony of in-
terested parties, it was impossible for a tradesman doing business
alone to prove even a simple case for goods sold and delivered. To
remedy this situation, the courts developed the so-called "shop-
book" rule, by which the tradesman's books of account were ad-
missible in evidence to prove the facts stated therein, provided
that the tradesman kept no clerk. At the same time this rule was
being developed, the courts were confronted with other cases where
the accounts of third parties and of tradesmen who did keep clerks
were involved. In the first of these cases the tradesmen was not
ineligible as a witness, because he was not interested, and in the
second class of cases the account could be proved by the clerks
of the plaintiff, who also were not ineligible. In both classes of
cases, however, the testimony of the person who knew about the
OIn the index to ARcH. CouP. LAws (1929), there are seventeen columns
of items under the heading, "Certificatesl
70 Hanson v. South Scituate, 115 Mass. 340 (1874); Leonard v. Davis, 187
N. C. 471, 114 S. E. 385 (1924); State v. Boyle, 49 Nev. 386, 248 Pac. 48
(1926).
71 People v. Eckman, 72 Cal. 582, 14 Pac. 359 (1887) ; State v. Taylor, 293
Mo. 210, 238 S. W. 489 (1922); Keyes v. Keyes, 27 N. X 215, 199 Pac. 361
(1921).
1939] INTRODUCTION OF DOCUMENTARY EVIDENCE

transaction, whether proprietor or clerk, was often unobtainable

because of death. In those cases the courts were able to work out
a real exception to the hearsay rule, based on the necessity element
arising from death. There thus grew up, side by side, two bodies
of law, one for parties' books, where no clerks were employed, and
the other as to the use of books of account in other cases. When
the statutes were passed abolishing the disqualification of interest
and making parties eligible to testify, the reasons for the shop-
book rule vanished and the use of all book entries came to be
governed by the same set of rules, except in a very few jurisdictions
where legislation recognizing the shop-book rule has never been
72
repealed.
As business practices and methods of accounting have become
more complicated, the courts have found it necessary to broaden
the whole theory of admissibility. Death of a witness is no longer
a necessary condition to the introduction of the evidence and the
disruption to business caused by calling clerks and accountants
away from their work will now satisfy the necessity principle. The
requirement that the book entries must be supported by the testi-
mony of the person who conducted the transaction and gave the
information to the bookkeeper, once so rigorously enforced by the
courts,73 has given way, in the realization by the courts that in a
complicated modern business such a requirement can rarely be met,
to the modern rule that it is sufficient if the books are verified on
the witness stand by the supervising officer who knows them to
be the books of regular entries kept in that establishment, and by
such other persons as are readily available to show the correctness
of the accounts.7 This broadened attitude of the courts has been
adopted by many legislatures and by Congress, in enacting the so-
called "model statute", drafted by a committee of legal experts
appointed under the Commonwealth Fund, which statute provides,
in effect, that any writing or record made as a memorandum of
any act shall be admissible in any judicial proceeding in proof
of said act if it was made in the regular course of any business
and if it was the regular course of such business to make such
72 For a history of the development of these rules see THAYER, CASES ON
Evm.srCE (2d ed. 1900) 507-11; 3 WiGnome, EvENcE, §§ 1517-61.
73 B. g., Kent v. Garvin, 1 Gray 148 (Mass. 1854).
74 See Massachusetts Bonding & Ins. Co. v.-Norwich Pharmacal Co., 18 F.
(2d) 934 (C. C. A. 2d, 1927), and cases cited therein.
456 IOWA LAWV BBVIEW [VOL.. 24

memorandum or record at the time of such act or within a reason-

able time thereafter."5
So broad have the decisions become allowing admission of business
records, and so broad is the above-mentioned statute, which is in
effect in many jurisdictions, that many members of the bar have
apparently received the entirely wrong impression that as to books
of account there are no longer any problems of authentication. It
will here be the writer's task, not only to correct this wrong im-
pression, but also to indicate what the proper methods of authen-
tication in such cases should be.
It was the rule of the common law that, to authorize the intro-
duction in evidence of books of account, they must be books of
original entry.76 In the old-fashioned bookkeeping systems these
would be the day book and the cash book, but not the journal or
the ledger, although the latter would be admissible, after the books
of original entry had been proved, as a summation of what was
shown in the books of original entry.
The rule requiring the books of original entry has never been
chawged, and is still the law today. The only difference at present
is that the courts apply the rule with less technicality, with a
realization of how modern complicated business systems make strict
compliance with the old rules an impossibility, and with a realiza-
tion of the effect of the broadened rules of admissibility upon the
subject of authentication. An example of how far the courts will
go in dispensing with authentication, when necessary, is a case
where the proprietor of a retail store employing a large number
of clerks was permitted to prove an account by offering in evidence
nothing but a transfer ledger, plus the testimony of himself and
the bookkeeper as to how the accounting was done and that all
the other books of account, together with all the sales tickets, had
7
been destroyed in a fire. 7
That the original entry rule still stands, however, and that such

75For the exact provisions of such model act, see N. Y. Civ. PRAo. Ac T §
374(a). For a discussion of the statute promulgated by the Commissioners
on Uniform State Laws, see Note, Proposed Uniform Act on Business Entries
(1939) 24 IowA L. Rnv., May issue.
70 F or examples of a rigid application of such rule, see Fitzgerald v. Mc-
Carty, 55 Iowa 702, 8 N. W. 646 (1881); Schmellbacher v. Frank McLaughlin
Plumbing Co., 143 Ill. App. 486 (1909); Woolsey v. Bohn, 41 Minn. 235, 42
N. W. 1022 (1889); Rumsey v. Telephone Co., 49 N. J. L. 322 (1887).
77 Given v. Pierson's Adm'x, 167 Ky. 574, 181 S. W. 324 (1916); Younker
Bros. v. Meredith, 217 Iowa 1130, 253 N. W. 58 (1934).
19391 INTBODUCTION OF DOCUMENTABY EVIDENCE

authentication as is reasonably possible and convenient to furnish

will still be required, has been shown in several recent decisions,
where counsel, evidently relying too much on the broadened rules
of admissibility, attempted to offer in evidence the results of more
or less complicated accounting systems, without properly proving
the records on which their offer was based, and the proofs of authen-
tication were held to be insufficient. The facts in two of these
cases illustrate the point.
A paper company wished to prove over-payment for logs fur-
nished to it by a logging contractor. The evidence showed that
when the logs were delivered at the mill they were scaled, and from
the scale bills a written statement, purporting to show the number
of feet in each lot, the price per thousand feet, a computation of
the value, and the amount to be credited for the shipment, was
sent to the contractor at the end of each month. Letter-press copies
of these statements were made in a book called an invoice book,
which was kept in the custody of the paper company. Although
counsel for the paper company did serve notice on the contractor
to produce the statements sent him, no effort was made to produce
the scale sheets or even the invoice book, but counsel for the com-
pany merely offered in evidence a book called a "journal", authen-
ticated by the testimony of the bookkeeper who kept it, containing
on one side a list of debits for money paid the contractor and on
the other a lump sum for each month, presumably representing
the credits in such month for logs delivered. The book indicated
that the items therein were posted from the invoice book, and the
bookkeeper testified that the lump sums in the book were obtained
from the scale bills and the receipts. The Maine court very proper-
ly held that the book was not admissible as primary evidence and
could not be received as secondary evidence, because the extrinsic
evidence, as well as the nature of the entries themselves, satisfac-
torily disclosed the existence of better evidence--the scale sheets
as primary evidence, and the invoice book as proper secondary
evidence, the original statements not having been produced on
78
notice.
The other case, a federal case,79 was on an account for repairs
to a vessel, done on a cost-of-labor-and-materials basis. The evidence
showed that the accounting system was as follows: Several hundred
men worked on these repairs. Each workman had -a time card
7s Putnam v. Grant, 101 Me. 240, 63 AtI. 816 (1906).
79 The Spica, 289 Fed. 436 (C. C. A. 2d, 1923).
 IOWA LAW BEVITWo [VOL. 24

for each repair job, and as he worked during the day on different
jobs he would mark down on the proper sheet the amount of time
put in on each job. At the end of the day the card was signed by
the foreman and dropped in a box. When materials were needed,
they were obtained from the store by a foreman filling out a re-
quisition for the particular job, which requisition was taken to
the storekeeper, who, upon furnishing the materials, had the same
receipted on the requisition, which document he retained. The
time cards and the receipted requisitions were turned in to the cost
department, where the time cards were checked to see if they had
been signed by the proper foremen. From the time cards the
payrolls were prepared, and from both the time cards and the
requisitions an entry for each day was made on what was called
a "charge sheet", there being a separate charge sheet for each
repair job. From these charge sheets customers' bills were made,
out. The only attempt made by the plaintiff to prove the items
of the account was to offer in evidence copies of the bills, identified
by a bookkeeper, who testified that he had compiled the same from
the charge sheets. The accounting system was explained, the
charge sheets were produced and marked for identification, as were
a large number of the time cards, but none of these were offered
in evidence, the only records offered being the copies of the bills.
The Circuit Court of Appeals for the Second Circuit, in a very
enlightening opinion, showed that the case was one for following
the modern broad theories of admissibility, and that it was not
necessary to produce as witnesses the men who did the work. The
court did find, however, that the proofs offered were entirely in-
sufficient; that the law still required, as much as is reasonably
possible, proof of the original entry. In view of the fact that the
case was being sent back for a new trial, the court did not lay down
any definite rule as to proofs, but suggested that the charge sheets
were the original entry both for labor and materials. As to the
labor items, the court indicated that they required no additional
proof except testimony that they were made from the time cards,
since the fact that the time cards were used as the basis for pay-
rolls would show that they were kept as favorably to the employer
as circumstances permitted. It was indicated, however, that as
to the material requisitions the trustworthiness test would probably
require the production of the requisitioning foremen or at least
enough of them to evidence their reliability as a class, and that the
1939] INTBODUCTION OF DOCUMENTABY ,VIDENCE 459

entrants on the charge sheets should have been produced or their

attendance shown to be impossible.
In summary, the broadened rules of evidence as to business
entries no longer require the performance of the impossible in the
way of proofs, or even impose on the offeror any burden which
would be unfairly difficult or expensive or disrupting to business.
Laborers or clerks no longer have to be produced. The memoranda
which they gave to the bookkeeper, such as the sales slip for goods
sold or time cards for labor performed, are sufficient. The follow-
ing, however, would still appear to be true: (1) Thoroughly ex-
planatory testimony must be offered as to the accounting system
of the party whose business entries are being proved. (2) There
must be produced the party's books and records which are the
nearest to an original entry obtainable. (3) There must be an
identification of the offered entries by the person who made them,
if such testimony is conveniently obtainable, and if not conveniently
obtainable, by a showing to that effect and by the next most avail-
able testimony as to identification. (If the bookkeeper or the cost
accountant is dead, use his successor or superior, who can testify
as to how the records are kept and that they are regarded as the
business records of the party.) (4) If the entries were made from
memoranda which have been kept, such as sales slips and time
cards, these should be offered. If they have not been kept, printed
forms used for the making of such memoranda should be identified
and offered in connection with (1) above. (5) If the issue is
sharply contested, it would be well to offer the testimony of one
or two clerks or laborers to show that the business system outlined
in (1) was actually carried out, and to have them identify some
of the material mentioned in (4). (6) Ledger accounts, accounts
rendered, copies of invoices, etc., may be used, but only as a sum-
mation of (2), for the convenience of the court.

FORMxER Tmiso.Nt
One of the thoroughly established exceptions to the hearsay rule
involves the use of testimony given on a previous trial. The testi-
mony of a witness given in a former action or at a former trial of
the same action is competent in a subsequent action or in a sub-
sequent proceeding in the same action where it is shown that the
witness is dead or that a valid reason exists for his absence; that
the parties and questions in issue are substantially the same; and
 IOWA LAW REVIEW [VoL. 24

that such former testimony can be substantially reproduced upon

the second hearing. 0
The principal arguments that have arisen over such rule have
been as to the similarity of the two proceedings. All agree that
the rule will apply to a new trial of the same proceeding. Some
courts take the narrow view that where it is not a new trial of
the same proceeding the testimony is admissible only if the parties
and the issues in the two cases are identical. A growing number
of the courts, however, probably by now approaching a majority,
view the problem in a broader light and hold that if the issues in
the two proceedings are substantially the same, or, if there be
several issues, and the issue at which the testimony is directed is
the same, the evidence should be admitted, even though the parties
in the two proceedings are not identical. A familiar example of
this situation is where a child is hurt in an accident and two suits
are brought for recovery, one by the child, through his father as
next friend, and the other by the father for loss of services. 81
The question with which we are here concerned is as to how to
prove such former testimony after the same has been found ad-
missible by the tests of necessity and identity of issues. At common
law the testimony can be proved by anyone who heard it at the
former proceeding and is still able to state the substance of it from
memory. It is not necessary to repeat the exact words, if the wit-
ness can give the substance of what was said. The witnesses avail-
able for such purpose will include jurors, other witnesses, attorneys,
stenographers, or any other persons who happened to be in the
courtroom at the time and heard the testimony given.8 2 The early
common-law rules on this subject were formulated before the days
of official court reporters and before any attempt was made to
make a record of the testimony except by the judge's notes. Since
the employment of official stenographers, it is apparent that the
simplest and best method of proving the testimony is by a transcript
of the stenographer's notes. How is such transcript to be made
admissible?
Except where the transcript is made self-authenticating by stat-
ute, it can be proved only by the testimony of the stenographer
himself that he took the testimony down as it was given and that
80 JoNEs, EvnioEm (2d ed. 1908) § 1177.
8' For a lengthy discussion of this trend of authority, see Lyon v. Rhode
Island Co., 38 R. I. 252, 94 Atl. 893 (1915), L. R. A. 1916A 983, and annota-
tions thereto.
82 JO7NEs, op. Cit. supra note 80, § 1190, and cases cited therein.
1939] INTRODUCTION OF DOCUMENTARY EVIDENCE 461
the document offered is a correct transcript thereof. He may then
read such transcript into the record." There are, however, some
court decisions which have been rendered by judges who were
apparently not so familiar as they might have been with certain
basic principles of the law of evidence. These decisions state that
the stenographer may use his notes to refresh his recollection, but
that the transcript itself cannot be admittedV4 Such decisions al-
together overlook the principle that there are two kinds of recol-
lection, present and past. In offering present recollection, the mind
of the witness is presently refreshed by a perusal of a document
so. that he can testify as to the truth of a certain fact from his
present recollection, without aid from the document. In offering
past recollection, the party proves by the witness that, at or about
the time of the transaction as to which the witness is to testify, the
witness made a memorandum, in writing, as to the facts of such
transaction. A re-reading of the memorandum does not give him
any present recollection as to the matters therein stated. He test-
ifies, however, that he made the memorandum and that when he
made it he knew he was stating the truth. The memorandum there-
upon becomes admissible, not because it is claimed to be the record
of an event, but because it speaks the past knowledge of a witness
of a fact occurring within the knowledge of the witness, truthfully
recorded.8 5 If there is a law of past recollection, and such law is
so thoroughly established that it is unnecessary to cite in support
thereof any other than textbook references, what can be a more
perfect example of the use of past recollection than the testimony
of the court reporter that his duty was to write down the words
of every witness in the case which was being tried, that he did so
write down such words and that when he wrote them down he knew
that he was writing them just as the witness spoke them? Why,
then, is not the transcript of testimony admissible under common-
law principles as a case of past recollection recorded of the court
stenographer?
Therefore, if a court stenographer who took the testimony is
available, there should be little difficulty in introducing the tran-
script of testimony as identified by him.8 6 Assume, however, that
83 Mattox v. United States, 156 U. S. 237 (1895); Atchison, T. & S. F. Ry.
v. Osborn, 64 Kan. 187, 67 Pac. 547, 91 Am. St. Rep. 189 (1902), and anno-
tation thereto.
8 B. g., Duffy v. Blake, 91 Wash. 140, 147 Pac. 480 (1916).
552 WixoORE, EvmmcE, §§ 734-36.
86 Ruch v. Rock Island, 97 U. S. 693 (1878); Bass v. State, 136 Ind. 165,
 IOWA LAW .EVIEW [VOL. 21

he is not available. How can the transcript be proved? Apparent-

ly not as a transcript, under the past recollection theory, for a
memorandum under that theory must be identified by the person
who made it or by one who read it at the time and verified its
correctness. 7 There must be some person, however, who was in
the courtroom at the time the testimony was given who can re-
member what was said, particularly if his memory is refreshed by
reading the transcript prior to the hearing or at the hearing. A
memorandum need not have been made by the witness if it is used
only to refresh present memory and not as a basis for past recol-
lection.8 The person with the best memory in this respect would
doubtless be the attorney who tried the case, but it might be a
clerk or stenographer of the attorney, another witness in that case,
or a member of the family or a friend of one of the parties who
was interested enough in the litigation to sit through the former
trial.
Finally, there remains for discussion the effect of statutes making
the transcript of the official stenographer's notes admissible. These
statutes vary materially in their terms and provisions. Some, such
as the one in New York, 9 are very broad in their terms and permit
the use of such transcript where the former witness is dead or in-
sane or out of the state, not only on a new trial of the same action,
but also in any proceeding between the same parties or their legal
representatives involving the same subject matter. Statutes in
some states limit the use of such a transcript to a specific case or
issue, such as a statute permitting testimony of subscribing wit-
nesses at a will probate to be received in evidence on a contest of
the will in chancery. Still other states attempt to follow the theory
of the New York statute, but limit the use of the transcript of
testimony to another trial of the same cause.
Where a statute permitting the use of an official stenographer's
transcript exists, it is generally invoked, so much so that counsel
come to rely entirely upon the statute and apparently forget that
there is a common law. method of proving the same facts. For
example, in an Arizona case, 0 a man injured in a mining accident

38 N. E. 124 (1893); Shomen v. Metropolitan Street Ry., 164 Mo. App. 41,
148 S. W. 135 (1912); Clark v. Vorce, 15 Wend. 193 (N. Y. 1836); Halsey
v. Sinsebaugh, 15 N. Y. 485 (1857).
87 2 WIGBIORE, EVIDENCF 748.
88 Id. at § 759.
80-N. Y. Civ. PrAc. ACT § 348.
00Tom Reed Gold Mines Co. v. Moore, 40 Ariz. 174, 11 P. (2d) 347 (1932).
1939] INTRODUCTION OF DOCUMENTAY B IDB E

brought suit against the employer and testified as a witness in

such suit. He recovered a judgment, but on appeal the judgment
was reversed and a new trial ordered. Before the new trial could
be had, the plaintiff died. The widow, as administratrix, brought
suit against the same defendant for damages under the Death Act.
On the trial of such cause the plaintiff was permitted to read to
the jury from the stenographer's transcript at the former trial the
testimony of the plaintiff and of three other witnesses who testified
at the former trial but who were now either dead or out of the
jurisdiction. The Supreme Court of Arizona held that this was
error, stating that the Arizona statute permitting the use of an
official stenographer's transcript for such purpose applied, by its
terms, only to a subsequent trial of the same action, and that this
was not such a case. Counsel for the plaintiff could have avoided
the reversal if, instead of depending upon this statute, he had
proved the former testimony by proper common-law methods.

CONCLUSION
As a resum4 of the foregoing discussion, it can be said:
(1) that few documents are self-authenticating, and those that
are fall into definitely recognized categories;
(2) that there are three general ways in which to authenticate
a signature: proof of execution, proof of handwriting and com-
parison of handwriting;
(3) that the question of authentication of telegrams presents
problems of its own, but problems that are not insuperable after
the best evidence question has been properly answered;
(4) that the authentication of public records presents no great
difficulties where fundamental theories are properly understood;
(5) that business records still require authentication, in spite of
greatly broadened rules as to their admissibility, and the original
entry rule must be complied with as far as practicable, although
such rule will be enforced with more judgment and common sense
than in former days;
(6) that, in spite of the passage of a considerable amount of
legislation as to specific cases of authentication, the common law
rules still prevail, and the practicing attorney should not run the
risk of depending upon a strained construction of an authenticating
statute when there are before him the safe common law methods
of accomplishing the same result of having a certain document ad-
mitted in evidence.