Doe ex dem. Henderson v. Hackney

16 Ga. 521 | Ga. | 1854

By the Court.

Benning, J.

delivering the opinion.

The deed to Henderson, the plaintiff below, having been made by JEli Nicks,, and the grant from the State having been made to JElias. Nicks, it was important to Henderson to show that Eli Nicks and Elias Nicks were the same person.

To show this, any thing going to show how many Elias Nichses orEliNickses there were in the district of the residence of the drawer, at the time of the giving in for draws, would be pertinent evidence. And how many there were of these, the certificate from the Executive Department would go to show.

That certificate, therefore, was relevant.

Was it also legal evidence? The Court below rejected it, but on what ground, does not appear. The ground taken before this Court, for sustaining the rejection of it, was that the certificate does “not purport to contain a copy of any record document or paper of file”; and the Act of 1819, (Prin. Dig. 215,) was cited in support of this ground. That Act, it is true, does not authorize the use of such a certificate, as evid’ence. Rut there is another and a later Act which does — the Act of 1830. (Prin. Dig. 220.)

' This Act makes the certificate of any public officer, under his hand and seal of office, if one is attached thereto, either of this State or any county thereof, in relation to any matter or thing pertaining to their respective offices, or which, by presumption of law, properly pertains thereto, admissible as evidence, before any Court of Law or Equity in this State. This is the Act, and this does not say that the certificate to be admissible, must give a copy of something. It is to be- admissible, if it relates to “any matter or thing” pertaining to the office of him who gives it. And a certificate may relate- to a-matter or thing, without giving a copy of it. If it states that such and such are the contents of the thing, and such and such are not, it relates to the thing. And this is what this certificate does. It certifies that certain names of the Nickses appear on the list of drawers of land, for a particular district and that no other names of the Nickses do. Instead of giving, by copy, the whole contents of the list, it gives, substantially, what is part of the contents of the list; and it certifies that the part given is all that the list contains of the kind given.

This list was a thing which pertained to the Executive Office.

[1.] The certificate, therefore, was legal, and being also relevant, it was admissible in evidence. The Court, therefore, erred in rejecting it.

[2.] The interrogatories offered by the plaintiff, and rejected by the Court, were such, 'that if they had been admitted to the Jury, the Jury might, perhaps, have inferred from them, that the Eli Nicks of the plaintiff’s deed, and the Elias Nicks of the grant, were one and the same person; and that that person sometimes passed by the- name of Eli, sometimes by the name of Elias. .And such an inference, if made, would not be in contradiction, to or in variance of the grant. A grant is made to a person, mot to a name. (11 Ga. 282.)

These interrogatories, therefore, were admissible for the purpose of showing that the Eli Nicks of the plaintiff’s deed, and the Elias Nicks of the grant, were one and the same person— a person who was known by the one name, as well as by the other: but they were not admissible, for the purpose of showing that "the true drawer was a man named Eli Nicks; and that by mistake, the grant was issued to' another man named Elias Nicks. ' ■

The Court, therefore, should have admitted them.

[8.] The Court or Jury may compare two documents together, when properly in evidence, and from that comparison, form a judgment upon the genuineness of the hand-writing, or the identity of the writer. (Phil. Ev. note 915. 1 Green. Ev. §578.)

The Court should have told the Jury, therefore, that they might, compare the signatures of the two deeds, one signed Eli Nicks, the other Elias Nicks, to see whether the signatures were’both made by the same person, for these deeds wereproperly in evidence; and if made by the same person, the older ought' to have prevailed.

The decision of these questions makes it unnecessary to decide the others.

There ought to be a new trial.