United States v. Delespine's Heirs — 37 U.S. 654

Majority — Wavne J.

p. 654

The United States, appellants v. Joseph Delespine’s Heirs, Lazarus and others.

Syllabus

A translation, by the secretary of the board of land commissioners of Florida, whose duty it.w&s to translate • Spanish documents given in evidence before the board of commissioners, of a certified copy of- a Spanish grant of land- in Florida, which had been produced to the board, properly Admitted as evidence of the'grant: satisfactory .proof having, been given to the Court, that the original grant could not be found in the records of Fast Florida; and. that'this was the best evidence, from the nature of the ease-, which could he given of the existence of the original paper, lost or destroyed.

APPEAL from the ¿superior court of East Florida.

The heirs of Joseph Delespine, and others, purchasers from Joseph Delespine, filed a petition to the supreme court of East Florida, praying .confirmation of a grant to Joseph Delespine, made by Don José Coppinger, on the 9th day of April, 1817; he being then the Spanish governpr of East Florida. .The grant was for forty-three thousand acres, under which surveys-were made by George J. F.. Clarke, then■ surveyor of the province, according.to the terms of the grant. '

The petitioners exhibited, in support of their claim, the original, translation, certified by'Francis. I. Fació, of the certified copy by Thomas .de Arguilar, the • government secretary of the province, which was. brought into court by the keeper of the public archives of East Florida. Evidence was given, that the original grant by governor C.oppinger ’had not been found among the archives,, or any where. It was also in evidence, that a copy of,the memorial of . Joseph Delespine, and of the concession' thereupon, for the forty-' three thousand acres of land, purporting to have been 'certified by Thomas de Arguilár, as secretary of the government, was exhibited to the board of land claims of East Florida, which was, before the board, proved to have been in the handwriting of the government secretary, and signed by him. This document had been mislaid or lost.

The superior court of East Florida gave a decree in favour of the petitioners; and the United States prosecuted this appeal.

p. 655

: Mr. Bütxer, the attorney general of' the United Státes, informed the Court, tHáf on . at) examination of the record, he found . nothing in.the case to. distinguish it from those which had been already decided- in. favour of claimants under Spanish grants;- unless the Court should ^consider the circdmstahce of the Original grant by governor Coppinger not having been found - in the Archives of Florida* as rendering the evidence-of the grant insufficient

, Tbe-grai)t should, have been found filed with similar papers in the proper office, but there it was not. It is admitted that the papers, of the office are.in disorder; and evidence was giVott.in the superior court oh Florida, which showed that negligence in the preservation. of .the papers frequently prevailed there. But the certified copy of- the. grant was not produced, it also had been lost; and the- only evidence exhibited to the court, was-a certified translation of a copy of the grant.

- It is admitted that when a grant of land is made, the original is retained, and a copy only1 is furbished to the' grantee;- but the original is filed in-the proper office. There no original can be found. The caise must stand before the court as if the certified' copy of the. grant had been produced, for its loss is- accounted for; but the: question which this Court have to decide, Js whether the grantees ought not to prove, the original .to be in existence. Cited Mitchell V. 'Tile United States, 9 Peters, 731; Owens v. Hull, 9 Peters, 621.

delivered the opinion of the Court:

In this case.it is conceded by the attorney .general that the. only ground upon which it can be taken out of the decisions of-this Court j confirming' the decrees of the courts of Florida, upon grants and concessions of land made by the, authorities of the king of Spain to his subjects, before the 24th January, 1818; was, that .the superior court of East Florida, in adjudicating upon this claim, received as evidence the copy of a copy of a concession or grant to Joseph Delespine. - We think the copy, in this instance, was properly received by the court. The first copy was made from the original, filed in the proper office, from which the original could not be removed for any purpose. -That copy, it is admitted, would have been evidence in the cause. It is shown, by the affidavit .of Mr. Drysdale, to have been lost whilst the claim was under examination by the board of commissioners established by congress for ascertaining land claims in Florida; and that the copy received as evidence, is a translation of

p. 656

the first, certified by the secretary of the board of land cornrhission-' ers, whose duty it was to translate Spanish documents, given'in evidence before- the board of land commissioners; and is. a part of the papers in this claim, transferred, according to law, to' the keeper of the public archives of East Florida.' And it appears, also, by proofs in this cause, that the papers in the office from which the first copy was taken, and' the original of which is also sufficiently proved to have been on file, have been, by accident or- otherwise, mutilated, since the first copy- was taken; that the original could no longer be fqund; and, consequently, that" the copy in this case, was the best evidence, from the nature of the case, which could be given of the existence of an original' paper lost or destroyed. >

The decree of the superior court of East Florida was confirmed.

■ This cause came on to be heard on tne transcript of the.record from the superior court foy the district of East Florida, and was argued by counsel. On consideration whereof, it is no.w here decreed and ordered by this Court, that the decree of the said superior court in this cause be, and the same is.hereby affirmed.