Opinion
May 1813.
To let in secondary evidence of a paper, the affidavit should show that the original is lost, mislaid, or so out of the control and possession of the party that he cannot produce it; and the affidavit may be made either by the party or his agent.
If the affidavit be made by an agent, it should, regularly, state the reason why it was not made by the principal; but, it seems, if the record shows no exception to the affidavit on this ground, the Supreme Court will not feel called upon to give an opinion on the point.
The Court reserves the point whether the grant which has been issued, and is in the possession of the grantee or sub-claimants, is better evidence than a copy from the office in which it was originally made?
In Error, —
This was an action of ejectment, on the trial of which the plaintiff, in order to enable him to read a copy of a grant, produced the following affidavit: "In this cause, John Brown maketh oath, that he is attorney-in-fact for the lessor of the plaintiff, and that it is out of the power of the plaintiff to produce the original grant in this cause under which he claims, the same being in possession of Jos. Greer, or some person, to whom said Greer has delivered it, unknown to this deponent or said Smith; and that said Greer claims title under said original grant, in opposition to the lessor of the plaintiff. The deponent also states that said grant issued to John Hacket, under whom he claims title as well as said Greer." Signed
"JOHN BROWN, Attorney-in-fact for John Smith T."
From this affidavit, it appears evidently that neither the principal, Smith, nor his agent, Brown, knew where the original grant was. Conformably to the decisions and practice in North Carolina, before a registered copy of a grant or deed could be read in evidence an affidavit was required that the original was lost, or not within the power of the person offering this secondary evidence.
The affidavit of an agent, in cases situated like the present, should regularly state the reason why the affidavit was not made by the principal. Caines and Coleman's Cases Pr. 465; but this point has not been insisted upon in the course of the argument. It seems to have been understood, and admitted on all hands, that Smith is a non-resident.
The case of Blanton v. Miller, 1 Hay. 4, is relied on for the purpose of showing that no person but the party himself could make the affidavit. This is certainly not the law, nor is this short note of the case satisfactory as to the particular circumstances of the case then before the Court. To require affidavits from the parties themselves, in the progress of a cause, would be a great inconvenience, and not consistent with the usual occupations of mankind, beside being incompatible with the maxim that in prœparatorüs ad judicium favetur actori.
Neither from the record nor argument at the bar, is the Court called on to give an opinion on that part of the affidavit relative to the want of a statement, showing the reason why the principal, Smith, did not make the affidavit.
The law presumes that all copies of papers which are required to be registered represent the originals truly. Having been registered and certified by sworn officers, this presumption naturally arises. There is not the same necessity for strictness in relation to such copies that there is respecting the admission of the secondary evidence of sworn copies; and hence the departure from that strictness in the cases of Tillery's Lessee v. Simmons, and King's Lessee v. Hall, Tenn. 209. The reasons for this disposition in the courts are obvious. There is a degree of authenticity attached to all papers which are recorded according to law that could not apply to others not thus solemnized; but such papers are not indisputable; the party against whom they are produced is not concluded; he may overturn the presumption of their correctness, by showing that they are not true copies of the originals, and this is far more convenient in practice than the degree of strictness which seems to be contemplated in the case of Blanton v. Miller. It is essentially requisite that the affidavit should show that the party wishing to avail himself of secondary evidence of a paper required by law to be registered, that the original is lost, mislaid, or so out of his possession that he cannot produce it. This is to be understood of general principles, and not with a view to grants in particular; for it is not the intention of the Court to say that the production of the grant (having been in the possession of the grantor or sub-claimants) is better evidence than a copy from the office in which it was originally made; that point is left undecided. In a case situated like the one before the Court, where there are several purchases by distinct mesne conveyances, the law presumes the original grant to be in the hands of some one of the under purchasers, but fixes on no one in particular. An affidavit by an agent swearing that neither he nor his principal had the paper nor any such control over it as to enable them to produce it, is sufficient to let in the secondary evidence of a registered copy.
The judgment must be reversed, and the cause remanded.