
    Doe ex dem. Freeland, Appellant, v. M’Caleb.
    The general rule is, that before a copy can be received in evidence, the existence and loss, or destruction of the original must be proved.
    To prove the loss of a written instrument, it must be shown that diligent search and inquiry have been made of those persons in whose possession it ■ should have been if it existed, and that the same cannot be found.
    A copy of a certificate of entry, by a register, will not be received in evidence', ■ when it appears that the original is on the files in the general land office,
    APPEAL from the Warren circuit court.
    This was an action of ejectment tried'before the Hon. George Coalter, at the March term of said circuit court, 1837.
    On the trial of the cause, the plaintiff offered in evidence to the jury, a copy of a certificate from the register of the land office, which was as follows:
    “No. 921. Land office, Washington, Mississippi, 18th March, 1830. It is hereby certified that, in pursuance of law, Thomas Freeland, Claiborne county, on this day, purchased of the register of this office the lot or east half of the southwest quarter of section number twelve, of township number fourteen, in range number two, east, containing eighty acres, at the rate of one dollar and twenty-five cents per acre, amounting to one hundred dollars, for which the said Thomas Freeland has made payment in full as required by law. Now, therefore, be it known that, on presentation of this certificate to the commissioner of the general land office, the said Thomas Freeland shall be entitled to receive a patent for the lot above described.
    (Signed) B. L. C. Wailes, Register.”
    It was proved by a witness, Thomas W. Newman, that the original, of which the above is a copy, was transmitted by him, as register of the land office at Washington, and without any authority from said Freeland, to the commissioner of the general-land officp, and that since the- transmission of said original certifi-cate, he has been instructed by the said commissioner to deliver the said original certificate to the said Thomas Freeland, from ■which he infers that said original was miscarried; and he also stated that he knew the hand writing of the said B. L. C. Wailes, and believed the originals were signed by him, and that the copy above recited was a true copy of the original made out by himself; and that, when appointed register of the aforesaid land office, he found the said original certificate in the office, and does not know that Thomas Freeland ever had possession of it.
    The defendant, by his counsel, objected to the reading of the said copy above recited in evidence to the jury, and the objection was sustained by the court; to which decision of the court the- plaintiff, by his counsel, excepted, and prayed an appeal to this court.
    Montgomery and Holt, for the appellant.
    The .only question in this case arises on the bill of exceptions •taken to the decision of the court in the admission of the copy of the register’s certificate to the plaintiff for part of the land in controversy.
    Upon making final payment of the purchase money, by the purchaser from the government, for a tract of land, the register shall give a certificate thereof, upon presentation of which to the secretary of the treasury, a patent shall issue. Ingersoll’s Abr. 1825,355.
    ■ The officer or commissioner of the land office created, and all .the powers and duties of the secretary of the treasury transferred. Ingersoll’s Abr. 363-4.
    By the foregoing statutes, it will be manifest, that the plaintiff was only exercising the ordinary diligence to obtain a patent by sending his certificate to the commissioner of the general land office. And I believe, in all legal matters, a confidence reposed in the public post, has been considered sufficient diligence in transmitting papers from one place to another. It has always been so considered in •reference to notices of nonpayment of notes, &c., although the failure of the mail might operate to the greatest injury of a party. The circumstance, that Mr. Newman found the certificates in his office without any explanation, is a matter of no consequence, as the fact of its being there must be presumed to have been with the consent of the purchaser; and, although he sent it without the consent of the purchaser, no person but the owner of the certificate has any right to complain.
    As to the doubt raised on the question of the delivery of the deed or certificate, the mere existence of a deed is sufficient evidence of the legal execution of it, except between the parties; as neither the grantor nor grantee object to the legal execution of the deed or certificate, third persons cannot contest'd. Mr. Newman did not pretend to hold it in opposition to the claim of Free-land; and on the contrary, states, that he had received an order from the commissioners of the general land office to deliver the certificate to the plaintiff.
    The evidence of Mr. Newman, as to the probable loss of the certificate, is as strong as the case in 5 Conn. Rep. 106, cited in 1 Starkie on Ev. Ed. 1837, p. 388, note; in which it was considered sufficient excuse for the non-production of a paper, that it had been put into the post office, and had never arrived at its destination, although no evidence was given of any endeavor to trace or find it by advertisement in newspapers, or otherwise. And still stronger than the case in 15 Com. Law Rep. 106, in which it was decided, that when an indenture was directed to the overseers of the poor, and not found in the chest in which such papers were usually kept; upon search, and it appearing that the person entrusted to carry it was dead, and that his executor could not find it, without any evidence that the overseers had received it, was sufficient evidence of its loss.
    But, admitting the paper safely arrived at its destination, the plaintiff was no longer entitled to the paper, but a patent in lieu thereof, and according to the ordinary course of business in the office, he must wait his turn to receive such patent. Must he wait until a patent has actually issued, before he can come into a court of law to redress any infraction of his rights, or may he not avail himself of the provisions of our statute, authorising certificates from the register to be given in evidence, in actions at law? Revised Code, 123, s. 87. And upon showing that such certificate, which is the best evidence, is legally beyond his control, is he not entitled to resort to the next best evidence the nature of the case admits of, which is a proved copy? If he had had a copy of the same certificate from the commissioner of the land office, it would have been evidence. See Ingersoll’s Abr. 363-4. And certainly, the commissioner’s certificate, is not better evidence of the copy being true, than the testimony of a witness on oath, who not only knows the paper to be a true copy, but knows the genuineness of the original.
    Courts do not now-a-days give as rigid constructions to the rules of evidence as formerly. 8 Wheaton’s Rep. 332.
    Harrison, for the appellee.
    The questions in this case are reduced to a single point, which I will proeed to notice.
    Did the court err in rejecting the copy of the certificate offered in evidence by the plaintiff ?
    But for the statute in the Revised Code, 123, the original itself could not be used as evidence of title, because such certificate does not, per se, vest the legal estate in the purchaser; it was, without that statute, a mere evidence of purchase, giving to the holder, the right to demand a patent from the government. The truth of this proposition is too evident to require the support of argument or authority. I will merely remark that both the national and state governments have always recognised its truth. The one by issuing patents pursuant to such certificate for the purpose of passing the title to the purchaser, and the other by passing the statute referred to, making it evidence of title. The statute in the one case, and the patent in the other, are wholly unnecessary if the original certificate were of itself sufficient to divest the government of the legal title, and transfer it to the purchaser. I therefore shall, in the present argument regard it as a proposition not to be successfully controverted, that the original itself, but for the ’statute, should have been rejected, had it been offered.
    Owing to the great delay of the general government in issuing patents, the legislature of this state, thought proper to remove, to some extent, the evil resulting from the absence of title in the purchaser, and therefore passed the statute under consideration; the effect of which I will briefly examine.
    
      This statute is in derogation of the common law. Inasmuch as it raises a mere certificate to the dignity of a patent, making it equal to the highest evidence by which titles to land are held and passed.
    The court is well apprised of the rule, that statutes in derogation of the common law, are 'to be construed rigidly. When a right is conferred by statute, which did not exist before, it becomes the person claiming such right to show that he is within all the terms and conditions, if any, upon which such right is given; otherwise, such right cannot be claimed by him, with any hope of success. Especially is this the rule, where land is the subject matter claimed. Because land has ever been favored by the common law. It was not at the common law the subject of sale under execution; and if statutes, generally passed in derogation of the common law, are to be strictly construed, much more strictly, it seems to me, should those be construed, the effect of which is to charge the evidence of title to real estate. With these preliminary observations, I shall proceed to an examination of the statute itself.
    ■ This certificate was issued by the register of a land office; and the statute declares not, that “ all certificates issued by the register of a land office, for any lands in this state, shall be taken and received as vesting a full and complete legal title in/the person in whose favor such certificate is granted.” Such is not the language, nor, as it seems to me, the meaning of the statute. Had the legislature intended to give such effect to all certificates issued by the .register of a land office, it would easily have executed such intention by a few plain words; and we cannot presume that such was the intention of the legislature, in the absence of appropriate language to convey such intention, especially where it is apparent, as in the present case, that the legislature intended to limit and restrain such effect to certificates of a particular character. It was highly proper that the legislature should give the effect of a patent to certificates only of a particular description. Because, otherwise, the register might abuse his power to the great detriment of the people, whose rights the legislature was bound to protect. He is an officer not of their creation, or amenable to them. He is an officer of a different government, and it would have been the height of folly in the legislature, to confer upon all certificates of purchase issued by him, the effect of a patent. They therefore wisely annexed divers limitations. 1. A certificate, to be regarded as vesting a full and complete legal title in the purchaser, must be actually issued. 2. It must be issued in pur-suanceof an act of congress. S. It should-be founded on some warrant or order of survey, or in right of donation, or right of pre-emption, or right of purchase from the United States. 4. Any certificate, so issued, enables the holder thereof to maintain any action thereon.
    Now, in the first place there was no evidence before the court, that the original was ever, in point of fact, issued to Thomas Freeland.
    Only one witness, Thomas W. Newman, was examined. He states that, « when he was appointed register of the land office, he found the original certificate in the land office.” When he found it, how long after its date, is not stated. Where he found it, is not mentioned. Whether among the waste papers of the office, or preserved on file as a valid document, we know not. We are here left wholly in the dark, and are required by the plaintiff to presume the existence of the important circumstances necessary to establish the fact that the certificate was bona fide, issued to him. It cannot be seriously contended, that the mere fact of a register’s signing such a certificate, confers title upon the person named therein as purchaser. The mere fact of my signing a promissory note, for the payment of money, does not render me liable for its payment. The mere fact of my signing a deed does not divest me of title. I must sign it for the purpose of passing title, and in the language of all the law books, there must be a “ delivery,” or some act equivalent thereto.
    Now, can this court say that there is proof in the record, that' this certificate was in fact issued, or that any act was done by the register who signed it, equivalent to a delivery of it? If there had been proof that the witness found it soon after its date, or preserved among the records of the office, where it should have been, if intended as a valid document, there would have been something in the cause from which a slight inference might be drawn in favor of its issuance; or if B. L. C. Wailes, who signed the certificate, had been called upon, he would had established the fact, had the fact existed. Where was Mr. Wailes at the time of the trial below? Why was he not called upon to establish a fact so essential to the maintenance of the plaintiff’s action? or why was not his absence accounted for? will the court, under circumstances such as these, supply by presumption the absence of proof ? or will not the court in this, as in every other case, pronounce the law upon the facts, and leave the party in possession of the land, to the enjoyment of that possession until the plaintiff shall show by satisfactory evidence that he is fully clothed with the legal title? In reference to delivery, see Jackson v. Dunlap, 1 Johns. Cas. 117; Jackson v. Phipps, 12 Johns. Rep. 418.
    But, secondly, such certificate .must be issued pursuant to some act of congress. I need not refer to the several acts of congress on this subject. Enough of their general tenor is no doubt remembered by the court to enable them to perceive the force of this branch of the argument. These acts provide that the lands within a given district shall be surveyed. That a land office be established. That the land so surveyed be, by proclamation of the president, offered for sale at public auction. That this proclamation be published a certain length of time in different newspapers. That the lands remaining unsold a given time be subject to sale at private entry. From all which it will be seen that the register is but a special agent of the government. He has no general power to sell. He has no right to sell until by the president’s proclamation the lands are thrown into market, and then he has no right to sell except in the mode prescribed by ■ law. The character of the agency being special, he cannot of course confer any right unless he shall strictly pursue the instructions and restrictions to which he is subject, and the rule is the same whether the person with whom he acts knows or not that he has exceeded his authority.
    This rule is of course stronger in the present case than if it stood as at common law. Because this special power of sale is created, not by private agreement between private men, but by public law, by public act of the government, with which all men are presumed to be acquainted. If, therefore, this purchase was made before the lands were, by proclamation and due advertisement, thrown, into market, it is void; because the register had no authority to make it, and because the purchaser knew that the register had no such authority. I say the purchaser knew it, because he is presumed to know the laws and the public acts of his own government.
    This shows the wisdom of the legislature in declaring not that every certificate issued by a register should vest a full and complete title in the purchaser; but that a certificate issued in pursuance of an act of congress only should have that effect. Otherwise this anomaly would have presented itself, that a certificate here would be full evidence of title Avhen in fact and in law no title whatever passed, the sale being void because the register had exceeded the authority conferred upon him. If this view of the subject be correct, then this result is inevitable, viz: that the certificate does not per se vest the title in the purchaser. He is bound to show in order to give to the certificate that effect, that it issued in pursuance of some act of congress; or in other words, he is bound to bring his certificate within the terms and conditions of the statute. The statute alone gives him the right of offering it, under any circumstances, as evidence of title, and until those circumstances are established by proof he cannot complain that the courts refuse to give to his mere certificate the force and effect of a patent. It being their duty to pronounce the law, not to make it.
    But thirdly, The certificate so issued enables the holder to maintain an action upon it. Now, in point of fact, Thomas Free-land was never the holder of the certificate. Was he so, in contemplation of law? This again raises the question previously discussed in reference to the issuance of the certificate. For if the register never issued, or did some act which amounted to a delivery of it, Freeland of course never has and never can become, either in law or in fact, the holder. I will not extend my argument upon this point any farther. I will only suggest that the whole section of the statute seems to have reference to certificates actually delivered — to certificates which had issued from the hands of the register to those of the holder.
    From the foregoing view of the subject, I come to the conclusion that the original certificate itself was not such a document as, under the statute, vested Thomas Freeland with the legal title. If the original did not have that effect, of comse, no copy, however well authenticated, could have it; and, therefore, the court did right to reject the copy offered.
    If, however, the court shall differ with me on this branch of the argument — if the court shall be of opinion that the original, under the state of'facts set forth in the bill of exceptions, transferred to Thomas Freeland a full and complete legal title to the land in controversy, then the question arises, whether the plaintiff laid a sufficient foundation for the introduction of secondary evidence.
    . The general rule is well known to the court, that the best evidence in the power of the party to produce must be produced. The original is of course the best evidence. Before he can be permitted to introduce a copy or other' secondary evidence, be must first prove that the original, of which such secondary evidence is offered, was a genuine and valid instrument; and that due diligence has been used to obtain possession of the original, and that after such due diligence it was not in the power of the party to obtain or producé it. See Norris’s Peake, 141,142, and the authorities cited in the notes; also 1 Starkie’s Evidence, 335, 3.36, and authorities cited in the notes. Now, was there in the first place proof that the original was a genuine and valid instrument ? The witness did not execute or issue the certificate; he, therefore, has no knowledge of the fact of its genuineness or validity. He found it in the office, but does not say whether he found it among the waste papers or regular files of the office. The register who signed it is not introduced to prove its validity, nor is his absence accounted for.' The records of the office are not introduced to show a coincidence between them and the certificate. There is in truth no evidence of its validity, except the fact that the witness knew the hand writing of B. L. C. Wailes, and believed the signature thereto to be in his hand writing. Is this sufficient, in the absence of any corroborative proof, to au-thorise the inference that it was a genuine and valid instrument ? It seems to me clearly that it is not. But in the second place, was due and proper diligence used by Thomas Freeland to obtain said original ? The original, if a valid instrument, was to him a very important paper — it was the very foundation, and the highest evidence of his right. Before he should be alloAved to introduce secondary evidence of such an instrument he must show, beyond a doubt, that he used due and strict diligence to find and to produce it. The rule being, that the degree of diligence required is ahvays proportioned to the value and importance of the instrument supposed to be lost. Now, upon examining the bill of exceptions it will be seen that Thomas Freeland made no search Avhatever for this paper — that he did not request the witness or any one else to make search for'it — that the witness never searched for it — that, in point of fact, no one made search for it at any time or place. Was this proper and due diligence under the circumstances ?
    What evidence have we of its being lost ? The witness states that he transmitted it to the commissioner of the general land office. Was that general land office ever searched for it ? No. Any one of its officers ever written to, to make search for it ? No. Where then is the proof of its loss ? The witness afterwards received a letter from'the commissioner of the land office directing him to deliver the original to Thomas Freeland, from which he infers that it was lost. This is certainly as manifest a non sequi-tur as ever came under my observation. When did he enclose it to the commissioner ? When was the letter of the commissioner written ? Was it written one- day or one year after his own ? Why was not some fact given from rvhich we could infer (if such was the fact) that the letter of the commissioner was in answer to the one he had written ? Why not examine the commissioner to prove that he never received it;' or that, having received it, he 'reinclosed it to the witness ? There would then have been some evidence of loss. The witness draws his inference from the letter of the commissioner alone. Why not produce that letter ? It is certainly the best evidence of its own contents. But it is not produced, nor is its absence accounted for.
   Mr. Justice PRAY

delivered the opinion of the court.

This case comes up upon an appeal from the circuit court of the county of Warren.

The bill of exceptions presents the following facts: That on the trial of this cause, the plaintiff offered in evidence to the jury a copy of a certificate from the register of the land office, in the words and figures following, to wit:

“ No. 921, Land office, Washington, Mississippi, IS March, 1838.
“ It is hereby certified that in pursuance of law, Thomas Free-land, Claiborne county, on this day purchased of the register of this office, the lot on the east half of the southern quarter of section number twelve, of township number fourteen, in range number two east, containing eighty acres, at the rate of one dollar and twenty-five cents per acre, amounting to $100, for which the said Thomas Freeland has made payment in full as required by law: Now therefore, be it known, that on presentation of this certificate to the commissioner of the general land office, the said Thomas Freeland shall be entitled to receive a patent for the lot above described. ' B. L. C. Wailes, Register.”

Thomas W. Newman testified that the original, of which the above is a copy, was transmitted by him, as register of the land office at Washington, and without any authority from said Freeland, to the commissioner of the general land office, and that since the transmission of said original certificate, he has been instructed by said commissioner, to deliver the said original certificate to the said Thomas Freeland, from which he infers that said original was miscarried. Fie also testifies that he knew the handwriting of the said B. L. C. Wailes, and believes the original was signed by him and that the copy above recited was a true copy of the original made out by himself; and that when he was appointed register of the aforesaid land office, he found the said original certificate in the office, and does not know that Thomas Freeland ever had possession of it.

The defendant objected to the reading in evidence of the copy of the certificate above recited, which was sustained by the court; and the copy rejected. To this decision of the court the plaintiff excepted, and now asigns the same as error in the court below.

This copy was offered to be read in evidence to the jury on the ground that the original was lost; and the question here presented is, whether such a search has been made for .the original, as would legally authorise the introduction of a sworn copy as evidence?

The general rule is, that before a copy can be received, the existence and loss, or destruction of the original must be proved. 6 Binn. 234.

To prove the loss of a written instrument, it must be shown, that diligent search and inquiry had been made of those persons in whose possession it should have been, if it existed, and that the same cannot be found. 16 Johns. Rep. 193.

The application of these rules to the present case will lead us to a correct solution of the question involved. The existence of the original certificate is proved by Thomas W. Newman, register of the land office, from which it emanated; and he testifies that he transmitted it to the commissioner of the general land office at Washington. He also testifies, that since the transmission, he has been instructed by the said commissioner, to deliver such original certificate to the said appellant, from which the witness infers, that the original is lost.

From the two facts stated by the witness, it is evident his inference is erroneous. It does not appear at what time he received his instructions from the commissioner, further than that it was after the transmission of the certificate to Washington; for aught that appears, he may have received them the next day; and in the absence of all testimony on the subject, this court cannot presume that the certificate was miscarried or lost, but are bound to believe, that it is now on the files of the general land office.

These files have not been searched nor has any inquiry been made of the officer who has charge of them in relation to this certificate. We come to the conclusion, therefore, under the rule above stated, that the appellant has not made that diligent search for the original certificate, which the law requires,-previous to the introduction of a copy as evidence.

The judgment of the court below, must, therefore, be affirmed with costs. ■ ■

Judge Wright concurred.

Judge Sharkey, having been concerned ás counsel, gave no opinion.  