Fallon v. Dougherty

Field, J., delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring. This case must be reversed for want of sufficient preliminary proof of the inability of the plaintiff to produce the original deed from Sutter to Hammersly, through whom she deraigns title to the premises in controversy, to authorize the admission of the record copy. The evidence introduced only shows a search by the agent of the plaintiff and inquiry of Hammersly. It does not appear that the plaintiff herself has not the possession or control of the original. Her affidavit, in the absence of other evidence, should have been offered on the point. Laws of 1857, chap. 254, sec. 2; Macy v. Goodwin, 6 Cal. 581; Hensley v. Tarpey, 7 Cal. 288 ; Bagley v. Eaton, 10 Cal. 147. Judgment reversed, and cause remanded for a new trial.