#### Stapleton, appellant, *v.*Pease, respondent.

Evidence — *statement of discovery of qum'tz lode*— *identity of names and persons.*In tliis action by S. to recover a quartz lode from P., S. offered in evidence a paper purporting to be tbe original declaratory statement, signed by the discoverer of the lode and sworn to before *W.*P., the county recorder. P. called as a witness W. P., who testified that his signature to the jurat of the statement was not genuine. S. then proved that he had sent the original statement to the land office in Helena, Montana, and offered in evidence a certified copy of the statement by the county recorder. S. claimed that he was surprised by the testimony of *~W.*P., and that P. did not prove that the witness, W. P., was the county recorder, W. P. *Held,*that the production of the original statement was required at the trial, and that S. could not offer in evidence a copy thereof. *Held,*also, that the identity of the names of W. P., the witness, and W. P., the county recorder, is *prima facie*evidence of the identity of their persons

*Appeal from Second District, Beaverhead County.*

The judgment was entered by Knowles, J.

Shaep *&*Napton and A. E. Mathew, for appellant.

The declaratory statement is only collateral evidence in ejectment. Parol evidence of its contents or a copy is admissible. • 1 Greenl. Ev., §§ 87, 498 ; Cod. Sts. 401, § 29. The signature of the officer is only collateral to the fact that the party swore to the statement. The so-called copy was offered to prove this fact. 1 Greenl. Ev., § 86, *et seq.*

*551It was not shown that the statement was not a duplicate. The court could not presume that the 'William Peck, who swore it was not his signature, was the officer who signed the statement. The main fact is the record of the statement. Sts. 9th Sess. 127. This was proved.

Respondent, by admitting the statement without objection, waived any right to compel appellant to produce the best evidence. Appellant lost control of the statement by sending it to the land office and a copy would be admissible. Appellant established a *jprima facie*case by introducing the statement without objection.

The main facts are admitted in the exceptions; that the document was a duplicate so far as the description of the property is concerned; the signature of the discoverer of the property; the certificate of the record; that the discoverer was sworn, but the officer failed to sign both duplicates. The lack of the signature of the officer does not destroy the substantial facts.

Chumaseeo & ChadwioK and C. W. TueNEe, for respondent.

Appellant could not recover without proving that the declaratory statement had been made before the proper officer. Sts. Ex. Sess. 83, § 1. Appellant did not show that any statement' had been made, but proved that some statement had been sent to Helena, Montana. The paper offered in evidence was not a duplicate. The testimony of Peck showed that his signature was not genuine.

The record offered was secondary evidence, if any thing. No foundation was laid for its introduction. Cod. Sts. 401, § 29 ; 1 Greenl. Ev., §§ 84-88, and cases cited.

Appellant offered the statement as the original. The recorder testified that his signature was not genuine. When the names are the same, it-is presumed that the persons are identical until the contrary is shown, and appellant must show that there are two persons of the same name. 1 Greenl. Ev., § 575 ; *Thompson*v. *Mcmrovj,*1 Cal. 428; *Douglas*v. Dakin, 46 id. 49 ; *Garwood*v. *Garwood,*29 id. 520; *Cavleton*v. *Townsend,*28 id. 221; *Mott*v. *Smith,*16 id. 540, 554; *People*v. *Smith,*45 N. T. 772; *Matcher*v. *Rochelea/u,*18 id. 86; *Jackson*v. *King,*5 Cow. 239.

*552"Wade, C. J.

This is an action by tbe appellants to recover tbe possession of a certain quartz lode in tbe Bryant district, Beaver-bead county, known as tbe Pboenix .lode. Tbe respondent claims tbe same property under tbe name of tbe Mark Antony lode.

Tbe statute concerning tbe location and recording of mining claims on veins or lodes, provides tbat “ any person or persons wbo shall hereafter discover any mining claim upon any vein or lode, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, shall, within twenty days thereafter, make and file for record in tbe office of tbe recorder of tbe county in which said discovery is made, a declaratory statement thereof in writing, on oath, .before some person authorized by law to administer oaths, describing such claim in tbe manner provided by tbe laws of tbe United States.” Sts. Ex. Sess. 83, § 1. The person asserting title under this statute must produce in evidence tbe original declaratory statement, duly signed and sworn to, or, in case tbe same be lost or not within bis power, tbe record thereof, or a transcript of such record duly authenticated.

Tbe appellants, to establish their title to tbe property in question, introduced in evidence, without objection, a paper purporting to be an original declaratory statement, which was signed by tbe discoverer and sworn to before William Peck, county recorder. They further proved tbe discovery of a vein of silver with well-defined wall rocks, their possession and ouster by tbe respondent, and rested. Tbe respondent introduced testimony tending to establish bis title to tbe property, and called William Peck,-as a witness, wbo testified tbat bis signature to tbe jurat to tbe declaratory statement was not genuine. It was in evidence tbat William Peck was tbe recorder of Beaverhead county at tbe date -of tbe statement. Tbe appellants then proved tbat they bad sent tbe original declaratory statement of tbe Pboenix lode to tbe land office at Helena, *Montana)*tbat'they bad a correct copy thereof duly certified by tbe county recorder, and then offered tbe same in evidence; and that they were taken by surprise by the testimony of Peck. It is stated in tbe bill of exceptions tbat tbe respondent did not prove tbat William Peck, wbo testified, was tbe William Peck wbo was tbe county recorder at tbe time tbe statement was made.

*553The court thereupon rendered judgment against the appellants, who prosecute this appeal to reverse the same.

The following facts are conclusively shown: That the declare tory statement, introduced in evidence by the appellants and on which they rest their case, was not an original document; that the original was not lost, and that it was under the control of the appellants. Under this state of facts, no copy, record or transcript thereof, could be received in evidence. The appellants contend that, as the respondent offered no evidence tending to show that the William Peck who testified as to his signature was William Peck, the county recorder, there was no proof that William Peck, the recorder, did not sign the jurat to the declaratory statement. No such proof was necessary. Identity of names is *prima facie*evidence of the identity of persons. 2 Phil. Ev. 606, notes *c, h, e;*1 Greenl. Ev., § 575; *Thompson*v. *Manrow,*1 Cal. 428 ; *Mott*v. *Smith,*16 id. 535; *Carleton*v. *Townsend,*28 id. 219 ; *Garwood*v. *Garwood,*29 id. 514; *Douglas*v. *Dakin,*46 id. 49 ; *Hatcher*v. *Rocheleau,*18 N. Y. 86 ; *People*v. *Smith,*45 id. 772. The burden of proof was upon the appellants, if they disputed the identity of William Peck, the witness, and William Peck, the recorder, to establish the fact. But after showing, by their own proof, that the original paper was at the land office, and there by their own act, and there being nothing to show then’ inability to produce it in evidence at any time when required, we cannot see much force in the objection that William Peek, the recorder, was not properly identified.

The purpose for which the original declaratory statement was sent to the land office is not disclosed. No attempt was made to show that it had passed beyond the reach of tfye appellants, and, for all that appears in the record, it remained there under their absolute control. If the paper was required to remain in the land office for the purpose of procuring a patent, or any other lawful object, and the appellants were unable to produce it, an authenticated transcript of the record from the proper officers of the land office would have been admissible in evidence. No attempt was made to lay this foundation for the introduction of secondary evidence, and the certified transcript of the record was properly excluded.

*554The appellants declare that they were taken by surprise at the testimony of Peck, bnt they did not ask for a continuance of the case for this reason. And they were not entitled to a continuance. Haying the original document upon which they rested their title under their control, they should not-have been surprised when its production was required by the court.

*Judgment affirmed.*