This case comes before the court by a writ of error from the circuit court for the district of Georgia. The original action was an ejectment brought by the plaintiff in error against the defendants; and at the trial in November term 1829 a bill of exceptions was taken, which raises the only questions which are now before us for consideration.
The bill of exceptions states that the plaintiff offered in evidence, in support of his title, an exemplification, under the seal of the state of Georgia, of a grant or patent to Basil Jones, of a tract of seven thousand three hundred acres of land, dated the 24th of May 1787, and registered the 5th of June of the same year, in the registry of grants in the secretary of state's office. The defendants objected that the exemplification could not be received, until the original patent was proved to be lost or destroyed, or the non-production thereof otherwise legally explained or accounted for; which objection the court sustained, and rejected the evidence. The plaintiff then exhibited a notice served on the opposite party to produce the original grant, and also an original power of attorney from Basil Jones to Thomas Smyth, Jun. dated the 6th of August 1793, to sell and convey (among other tracts) the tract in question. And also offered an affidavit, duly sworn to by the plaintiff in October 1821, that he had not in his possession, power, or custody, the said original grant, or power of attorney, and knew not where they were; and that he had made diligent search among his papers for the said grant and power, and they could not be found. He further offered depositions to prove, that search had been made for the papers of Thomas Smyth, by whom, as attorney in fact of Jones, the land had been conveyed to Patterson, and that no papers could be found. He further proved that he had made search for the original grant or patent in the office of the secretary of state, and the book or register of surveys, in the office of the surveyor general of Georgia, and that the same could not be there found. And he further proved, by a witness, that the exemplification was a true copy from the register of grants and plots in the said offices. He further proved that search had been made among the papers of Basil Jones, in the possession of his widow; and among the papers of George Walker, deceased, who, as counsel for the plaintiff, had once had the muniments of his, the plaintiff's, title in his possession; and also in the office of the clerk of Richmond superior court, where the power of attorney was recorded: but without success. He also proved that he had by public advertisement, in two gazettes of the state of Georgia, offered a reward for the production of the said grant or patent, but no discovery had been made; and that he had searched the executive office of Georgia for the same, 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 grant to Jones was not found noted upon that list as one of that description. And the plaintiff then moved the court to admit the said exemplification in evidence, the loss or destruction of the original having been sufficiently proved; which the court refused. The plaintiff excepted to the ruling of the court upon both points.
The first exception presents the question whether the exemplification under the great seal of the state was, per se, evidence, without producing or accounting for the non-production of the original; and we are of opinion that it was. 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.
We think it clear, that by the common law as held for a long period, an exemplification of a public grant under the great seal, is admissible in evidence, as being 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 seal; and imports absolute verity as matter of record.