Soto v. Kroder

Field, C. J. delivered the following opinion at the July term Cope, J. concurring. The plaintiff in this case bases his claim to recover one undivided seventh of the premises described in the complaint upon a grant issued to his father in 1842, by Alvarado, who was then Governor of California. The grant is on file in the office of the Surveyor General of the United States; and on the trial, the plaintiff, after proving the signatures of the Governor and Secretary attached to [94] it, produced what purported to be a copy, and endeavored to establish its correctness as such copy by the testimony of a witness who had compared it with the original. Some question is made as to the effect of the testimony on this head, but we do not regard it as at all material; for, admitting the testimony to have been sufficient, the copy was but secondary evidence, and as such, was, of course, inadmissible until some excuse was given for the nonproduction of the original grant. If the original, as a document or record in the custody of a public officer, could not be taken from the office of the Surveyor General by the regulations of the department having charge of the public surveys, proof of the fact should have been made as a preliminary to the introduction of the copy. No such proof was made or attempted; and the objection on that ground of the appellant was, therefore, well taken. The plaintiff might have obviated the necessity of such proof, by producing a certified copy of the grant under the statute. (Session Laws of 1857, Ch. 254.) But not relying upon the statute, and acting independently of it, he should have laid the proper predicate for the introduction of a copy which the common law in such cases requires. (Hensley v. Tarpey, 7 Cal. 288.) Judgment reversed and cause remanded for a new trial.