US SUPREME COURT DECISIONS

An exemplification of a grant of land under the great seal of the State of Georgia is per se evidence without producing or accounting for the nonproduction of the original. It is a record proof of as high a nature as the original. It is a recognition, in the most solemn form, by the government itself of the validity of its own grant under its own common seal, and imparts absolute verity as a matter of record.

The common law is the law of Georgia, and the rules of evidence belonging to it are in force there unless so far as they have been modified by statute or controlled by a settled course of judicial decisions and usage. Upon the present question it does not appear that Georgia has ever established any rules at variance with the common law, though it is not improbable that there may have been, from the peculiar organization of her judicial department, some diversity in the application of them in the different circuits of that state, acting, as they do, independent of each other and without any common appellate court to supervise their decisions.

There was in former times a technical distinction existing on this subject. As evidence, such exemplifications of letters patent seem to have been generally deemed admissible, but where in pleading a profert was made of the letters patent, there, upon the principles of pleading, the original, under the great seal, was required to be produced, for a profert could not be of any copy or exemplification. It was to cure this difficulty that the statutes of 3 Edw. VI, ch. 4, and 13 Eliz., ch. 6, were passed. So too the statute of 10 Ann, ch. 18, makes copies of enrolled deeds of bargain and sale, offered by profert in pleading, evidence.

These statutes being passed before the emigration of our ancestors, and being applicable to our situation and in amendment of the law, constitute a part of our common law. By the laws of Georgia, all public grants are required to be recorded in the proper state department.

What should be considered proof of the loss of a deed or other, instrument to authorize the introduction of secondary evidence.

However convenient a rule established by a circuit court relative to the introduction of secondary proof might be to regulate the general practice of the court, it could not control the rights of parties in matters of evidence admissible by the general principles of law.

This was an action of ejectment brought to May term, 1820, of the Circuit Court of the United States for the District of Georgia to recover a tract of land containing 7,300 chanrobles.com-red

Page 30 U. S. 234

acres lying in that part of the County of Gwinnet which was formerly a portion of Franklin County.

On the trial at Milledgeville at November term, 1829, the plaintiff offered in evidence the copy of a grant or patent from the State of Georgia to Basil Jones for the land in question, duly certified from the original record or register of grants in the Secretary of State's office, and attested under the great seal of the state. To the admissibility of this evidence the defendants by their counsel objected on the ground that the said exemplification could not be received until the original grant or patent was proved to be lost or destroyed or the nonproduction thereof otherwise legally explained or accounted for according to a rule of the court. This objection the circuit court sustained and rejected the evidence, to which decision the plaintiff excepted.

The plaintiff then offered:

1. A notice to the defendants requiring them to produce the original grant or patent for the land.

2. The affidavit of the lessor of the plaintiff, William Patterson, sworn to before Theodorick Bland, District Judge of the United States for the District of Maryland, on 9 October, 1821, deposing in substance that he had not in his possession, power, or custody the said original grant, describing it, and that he knew not where it was, and that he had made diligent search for the same among his papers, and it could not be found.

3. The deposition of Andrew Fleming, stating at length the inquiries he had made for the papers of Thomas Smyth, Jr., by whom, as attorney in fact for Basil Jones, this land had been conveyed to William Patterson, and the information he had received of the destruction of these papers.

4. The deposition of Mrs. Anna M. Smyth, stating the pursuits of her late husband, Thomas Smyth, and the facts and circumstances leading to the conclusion that his papers had been destroyed.

5. The plaintiff then called a witness who proved that he had compared the exemplification of the grant or patent aforesaid with the register of grants in the office of the Secretary of State of the State of Georgia and the book or register of surveys in the office of the surveyor general of the said state, and that chanrobles.com-red

Page 30 U. S. 235

the exemplification offered was a true copy from the said register of grants and plats in the said offices respectively.

He further proved that he had made search for the original grant or patent in the said offices and that the same was not there to be found.

That he had made application to Mrs. Ann Farrar, the relict of Basil Jones, the grantee, who has since intermarried with Francis Farrar, for the said original grant or patent, if among the papers of her late husband, Basil Jones, and was assured by the said Ann and Francis that there were no such papers in their possession.

That the said witness had made application to Gresham Smyth, the reputed son of Thomas Smyth, Jr., for the said original grant, if in his possession, and received for answer that his father had died while he was yet young, and that he had no papers of his father's in his possession.

The said witness also proved that he had made diligent search among the papers of George Walker, now and long since deceased, who, it appeared, had once had some of the muniments of title of the lessor of the plaintiff in his possession or been consulted as counsel, but the said original grant or patent could not there be found.

That the witness himself, assisted by the clerk of Richmond Superior Court, where the power of attorney from Basil Jones to Thomas Smyth, Jr., was recorded, searched diligently through all the papers in the office for the said original grant or patent without success.

That the said witness, as agent of William Patterson, caused advertisements to be published for two months in two of the gazettes of the State of Georgia for said grant or patent as lost, offering a reward for its production if required, which advertisements were exhibited to the court and are inserted in the record at full length. And the said witness further proved that no information whatever had been received in answer to the said advertisements, nor any discoveries made in relation to said original grant or patent.

He also proved that he had searched the executive office of Georgia for the said original grant, and had examined the list of grants or patents to which the great seal of the state had chanrobles.com-red

Page 30 U. S. 236

been refused to be annexed, but the said original grant to Basil Jones was not found noted upon the said list as one of that description.

And thereupon the said counsel for the plaintiff moved the court to admit the said exemplification of the said patent or grant in evidence, the loss or destruction of the original having been sufficiently proved, which the said court refused, to which decision the plaintiff excepted. chanrobles.com-red

Page 30 U. S. 239