United States v. Ambrose

• Decision Date: 06 June 1881
• Parties: UNITED STATES v. AMBROSE. [1]
• Court: U.S. District Court — Southern District of Ohio

7 F. 554

UNITED STATES v. AMBROSE. ^[1]

United States Circuit Court, S.D. Ohio.

June 6, 1881

Channing Richards, U.S. Att'y, for plaintiff.

Hoadly Johnson & Colston, contra.

MATTHEWS Circuit Justice.

This proceeding is a scire facias in the name of the United States against Harry T. Ambrose and Thomas Ambrose, upon a recognizance entered into by them in this court, in the sum of $5,000, conditioned for the appearance of Thomas Ambrose, from day to day, to answer to an indictment pending against him, and not depart the court without leave, at the April term, 1880, and alleging a breach of the condition. The answer denies the breach, and the replication perfects the issue. To sustain the issue on its part, the United States introduced and read a record of the court showing that on a certain day during that term the necessary steps for the purpose of working and declaring a forfeiture of the recognizance were taken. To that the defendant offered testimony to prove that the facts stated in that record, showing the forfeiture, were not true; that, in point of fact, Thomas Ambrose was not called as therein recited; and that, in point of fact, Harry T. Ambrose, his surety, was not called upon to produce his body, as therein declared, and the question is whether or not that testimony is competent. I think it is not.

The proceeding with reference to a recognizance is a proceeding of the court. The recognizance itself constitutes a part of the records of the court: It is a contract of record. The proceeding in the forfeiture of a recognizance is a proceeding of the court, and is a matter of record; and it seems to me that it is, as in other cases of records, a case where the record imports such absolute verity that no one against whom it is producible shall be permitted to aver against it.

In the case of The King v. Carlile, 2 B. & Ad. 262, which is fully cited in the note to the Duchess of Kingston Case in Smith's Leading Cases, 'the defendant had been convicted of a seditious libel, and brought a writ of error to the Queen's Bench, assigning for error in fact, that there was but one of the justices named in the commission present when the jury gave their verdict. On the record returned to the King's Bench (and which was made up in the ordinary way) it appeared that a sufficient number of justices were present, and the court held that it was not competent to the defendant to question the fact as stated.'

In delivering the opinion, the court said that it was clear upon the authorities that a party cannot be received to aver, as error in fact, a matter contrary to the record.

In 1 Inst. 260, Lord Coke says:

'The rolls being the records or memorials of the judges of the courts of record, import in them such incontrollable credit and verity as they admit of no averment, plea, or proof to the contrary. And if such a record be alleged, and it be pleaded that there is no such record it shall be tried only by itself; and the reason thereof is apparent, for otherwise (as our old authors say, and that truly) there should never be any end to controversies which would be inconvenient.'

The rule is stated in Starkie on Evidence, 317, with a good deal of terseness, and makes the distinction, which is to be borne in mind, that there are two purposes for which a verdict or judgment may be offered in evidence: First, with a view to establish the mere fact that such a verdict was given or judgment pronounced, and those legal consequences which result from that fact; and, second, with a view to a collateral purpose,-- that is, not to prove the mere fact that such a judgment has been pronounced, and so to let in all the necessary legal consequences of that judgment, but as a medium of proving some fact as found by the verdict, or upon the supposed existence of which the judgment...