John Minor v. Shurbal Tillotson

• Decision Date: 01 January 1833
• Citation: 7 Pet. 99,32 U.S. 99,8 L.Ed. 621
• Parties: JOHN MINOR, Plaintiff in error, v. SHURBAL TILLOTSON
• Court: U.S. Supreme Court

32 U.S. 99

7 Pet. 99

8 L.Ed. 621

JOHN MINOR, Plaintiff in error, v. SHURBAL TILLOTSON.

January Term, 1833

ERROR to the District Court for the Eastern District of Louisiana.

This case came before the court, and was argued by Clay, for the plaintiff in error; and by Webster, for the defendant.

The only point decided by the court, with the facts which presented it for consideration, are fully stated in the opinion of the court. Other questions in the case, in relation to the admission of testimony were argued by the counsel for the parties; but the court considered them so imperfectly stated, as to require that another trial of the cause should take place in the court below.

THOMPSON, Justice, delivered the opinion of the court.

On the trial of this cause, in the district court of the United States for the eastern district of Louisiana, a bill of exceptions was taken to the ruling of the court in rejecting certain evidence offered by the plaintiff in support of the title set up by him, and the case is brought here by writ of error. The bill of exceptions states, that the plaintiff, having set up title to the premises in dispute, by virtue of a sale from general Wade Hampton, dated the 5th of April 1819, then offered in evidence another paper, purporting to be a copy of the grant, under which said Hampton claimed, which copy had been duly presented and registered by the land-commissioners of this district, in the year 1806, having first proved that many of the ordinances of the Spanish governors of Louisiana had been deposited in the notarial office of Pedro Pedescloux, the notary, who certified the said paper, under his hand and notarial seal, and who is now dead; and also having first proved, that the original grant was once in the possession of General Wade Hampton, but that he had, by his attorney, applied to said Wade Hampton for it, who gave him a bundle of papers, saying they were all the titles of his Houmas lands in his possession, but which bundle did not contain the original of the paper sought after. The plaintiff also offered in evidence the translation of said document, published by congress, in the book called the Land Laws of the United States, pp. 954-6, published in the year 1828. These papers were objected to, on the ground, that they were not the best evidence, and that due diligence had not been used to procure the originals; and the court sustained the objection.

The document offered and rejected by the court, is to be considered as secondary evidence; and there can be no doubt, that the plaintiff was bound to account for the non-production of the original. This is a document which the law does not presume to be in the possession of the plaintiff; it is the grant under which Wade Hampton claimed; a small part of which only was in question in this suit. The presumption of law, therefore, is, that the original deed was in the possession of Wade Hampton, and the plaintiff could not be bound to search for it elsewhere; there being no law in Louisiana requiring deeds to be recorded. And it was proved, as matter of fact, that it was once in his possession, at what time, however, is not stated; and the question is, whether such search was made for it, as to justify the admission of secondary evidence. The rules of evidence are adopted for practical purposes in the administration of justice; and although it is laid down in the books, as a general rule, that the best evidence the nature of the case will admit of, must be given; yet it is not understood, that this rule requires the strongest possible assurance of the matter in question. The extent to which the rule is to be pushed, in a case like the present, is governed in some measure by circumstances. If any...