# Doe ex rel. Patterson v. Winn

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## Dissenting Opinion

    Johnson
United States Supreme Court
30 U.S. 233
Doe ex rel. Patterson v. Winn
ERROR to the circuit court of the United States for the district of Georgia.
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 seven thousand three hundred acres, lying in that part of the county of Gwinnett, 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 non-production 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 the 9th of 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, Jun., 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 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, Jun. 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, Jun. 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 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.
The case was argued by Mr Wilde, for the plaintiff in error: no counsel appeared for the defendants.
Mr Wilde, for the plaintiff in error, contended:
1. That the exemplification of the patent or grant under the seal of the state was, by itself, admissible evidence.
2. That even were it not admissible alone, the proof made created a sufficient presumption of the loss or destruction of the original, to authorize the introduction of the copy.
The law of evidence in Georgia is the common law, except in so far as it is altered by acts of assembly. On this subject there is no act; nor is there any settled course of judicial decision. From the organization of the judicial department in that state there can be none. Seven distinct tribunals, each deciding for itself in the last resort, without any common umpire in case of disagreement, cannot be expected to exhibit an uniform interpretation of any code, however simple. With respect to rules of court, they are mere regulations for the convenient and orderly transaction of business. They can neither make law, nor repeal it. If the rule is in opposition to the law, it is a nullity of course. The common law doctrine is perfectly well settled. The constat or inspeximus of the king's letters patent, is as high evidence as the original itself. 1 Phillip's Evid. 410. Peake's Evid. 21. Page's case, 5 Coke. 1 Saunders, 189, in notes. 1 Hardres, 119. Roberts vs. Arthur, 2 Salk. 497. Hoe vs. Northrop, 1 Lord Raym. 154. 3 Salk. 154. 1 Dall. 2, 64. 2 Wash. Virg. Rep. 280, 281. 2 Mass. Rep. 358. 12 Vin. Ab. tit. Evidence, Constat [A. b. 125]. 12 Vin. Ab. tit. Evidence, Exemplification, 114 [A. b. 33]. sec. 1, 5, 8, 16, 17, 18.
In Georgia, the original warrant and survey are returned to the surveyor general's office; where they are filed, and the survey recorded. The acts of that state prescribe the form of grants. A record of them is ordered to be kept in the secretary of state's office, where the great seal is attached to them; and no grant is allowed to issue until it is recorded. No distinction exists in reason or authority between the patents of the state and patents of the king. They are of equal dignity and to be verified in the same manner. It will not be pretended, there is one rule of evidence for grants issued before the revolution, and a different rule for those emanating since.
The most distinguished counsel of that bar, one who was among the profoundest jurists of his country, the greatest ornament of his profession, and most eloquent man of his age, had been consulted, in his life time, on this subject. Before the action was brought, his opinion on the point in contest had been obtained. This is its purport.
'There can be no doubt that an exemplification or sworn copy of the registry of the grant is good evidence, even without proving the loss of the original. Vid. 12 Vin. Abr. 97, especially sec. 8, 39, and page 114, sec. 2, 5, 16, & c. The distinction always was between profert and evidence. When a grant was pleaded, profert must have been made of the original; and hence the statutes mentioned in Vin. Ab. supra, but the exemplification or sworn copy from the roll or registry was always evidence at the common law. The statute, however, were all passed before the colonization of Georgia. In that state the grant is enrolled, or a constat of it preserved, in some public office or offices, as in Maryland; and what question can it be whether the book itself or a copy from it is evidence; whether the original be producible or not?
'In Maryland, the office copy is constantly given in evidence, and always has been, although we have no act of assembly for that purpose, and it was never otherwise in England. The enrolment can answer no sensible purpose, if it does not answer this. The practice of enrolling grants, &c. can have no other object but to furnish sure constant evidence of the titles of the citizen to his lands, or rather of the source of his titles.' Opinion of William Pinkney, Esq.
Thus the matter stands upon authority. How is it on the score of reason? This is the transcript of a public record and imports absolute verity. That which remains in the office is the true original. The grant, which goes out into the hands of interested parties, may be subject to alteration for fraudulent purposes. From this the official record is secure. The emanation of the grant is a public and official act. In relation to any such act of the legislature or judicial department, the original document authenticating it, is not produced, but a copy. Nay, in relation to any other official act of the executive authority, the citizen who claims a right under it is not held to produce the original instrument. Why should it be otherwise in the case of a grant?
If the patent which goes out is to be considered the original, and that which remains in the office only a copy, then the exemplification is merely the copy of a copy; and the individual whose grant is destroyed by accident, can obtain from the public archives only the weakest kind of evidence to aid him in establishing his rights.
Again. What is the fact which the patent is introduced to prove? That the state has divested itself of part of the public domain, in favour of a particular citizen. And will not the solemn acknowledgement of the state, extracted from its own records and authenticated by its own seal, be deemed sufficient evidence of that fact?
As to the second point. The exemplification was rejected, not on account of any inherent defect, but because the affidavit of the lessor of the plaintiff was alleged not to be a compliance with the rule of court. Rules of court are made to advance justice. They are always to be interpreted and applied in subservience to that object. They have not the inflexibility of the law: made by the court, they may be changed by the court. The judge can relax or enforce them as justice may require. The forms of the shrine are not to be converted into shares for the suitors who approach it.
The rule requires of the party seeking to introduce a copy, an affidavit of his belief that the original is lost or destroyed; but this, evidently, is applicable only to the case where such belief exists. Suppose he does not believe it to be lost or destroyed? Suppose he believes it to be in the hands of the opposite party? Must he perjure himself, or lose his rights? May he not give notice to the opposite party to produce the original; show diligent inquiries after it; prove circumstances presumptive of its destruction; and by his own oath declare that he has it not, that it is not in his custody or power, and that he knows not where it is? All of which has been done in this case. What room is there to imagine the voluntary suppression of the original, after such an affidavit? Could he say it was not in his power, if he had given it to another, or directed that other to give it to a third? Could he say he knew not where it was?
Moreover this action was commenced in 1820, the affidavit was made in 1821, and the rule was not established until 1823. Before the adoption of the rule, the evidence in this case, independent of the plaintiff's oath, should have been deemed sufficient to admit the secondary proof. The oath is, virtually, in every important particular, a compliance with the ex post facto rule. According to the recollection of counsel, it was once so held by the circuit court itself, and in these very cases.
The rule of the circuit court is said to be borrowed from those of the state courts. If the rule is borrowed, the interpretation is original. Nothing is hazarded in saying that upon the affidavit and evidence offered in this cause and set forth in the record, no court in the state of Georgia would have refused to admit this copy.
Mr Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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