Den v. Pond & Pine

1 N.J.L. 434

• Court: Supreme Court of New Jersey
• Decided: November 15, 1795
• Status: Published

Opinion

Pee Smith, J.,

(Chetwood, J., assenting.) We think the plaintiff is at liberty to adduce his testimony in the way he thinks most advantageous for himself.

2d. Mr. Adams (secretary of state) was called, on the part of the plaintiff, to prove there was a public book in his office, of deeds and surveys made in Gloucester county, in order to warrant an inference that deeds and surveys were formerly recorded together in that county.

The counsel for defendant objected that the book itself should be produced.

Smith, J.,

(Chetwood, J., assenting.) The book itself should be produced; that will show what it really is. If copies would have answered, the plaintiff should have come prepared with them ; if they would not, it is a case out of the act and the book itself must be brought.

3d. It became a question whether one Thomas Sharp, was a deputy surveyor of the proprietaries. The counsel for the plaintiff contended it was sufficient to show he acted as such; that he was generally reputed to be a legal surveyor, and they said being a private authority it was not provable.

Pur Cur.

You may prove that he acted as surveyor in the locating of lands, and was generally presumed to hold the situation ; this will be evidence of a deputation.

4th. The plaintiff offered sworn copies of maps and surveys extracted from Sharp’s book, in evidence.

The counsel for defendant objected—

1st. That the book itself was not a book of record nor made so by act of assembly, but merely a private collection of maps and surveys, and if evidence at all, the original must be produced.

2d. Neither the act of March 27th, 1719, § 10, (Allinson, 43, 50,) nor that of December 2d, 1743, § 8, (Allinson 132,4,) made copies of such books evidence ; the first having reference only to copies of surveys after 1719, and enacting that surveys antecedently collected should be kept in the office, making a clear distinction between them; and the latter act applying only to deeds [382] and conveyances acknowledged in the manner directed in the second section.

Eor the plaintiff it was answered — admitting the rule of law with respect to originals of a private nature to be as is contended by the other side, yet sworn copies of books of a public nature, though not records, were admissible evidence. Lynche v. Clerke, 3 Salk. 154. See also Smartle v. Williams, 1 Salk 280.

The words in the act of 1719 are general, and those which apply to prior surveys are tantamount to making the files of them records, or at least puts them on a footing with papers of a public nature not removable by subpoena.

Per Cur.

After consultation with the Chief Justice Sharp’s Book of Surveys has always been held admissible evidence.

The plaintiff having the book produced it, so that the question whether sworn copies from it were legal testimony was not decided.

5th. The plaintiff then offered to read out of this book a survey of one Collins, which had been recorded, calling for corners and courses of Royden’s survey, contending this was good evidence of the existence of such survey, of its boundaries or the locus in quo.

The evidence was objected to, first, because res inter alios acta; second, because actually recorded prior to the pretended survey for Royden — and overruled by the court, who considered it as too vague to be admitted as evidence of the survey in question..

Cited in Stout v. Hopping, 1 Hal. 125.