As to the error assigned--in admitting copies of deeds and power of attorney, without first requiring the production of the originals or proof of their loss or destruction--the respondents say:
1. That those instruments were entirely immaterial to the decision of the case; and,
2. That being duly certified transcripts from the records of the recorder's office, of instruments properly executed and acknowledged, they were by the statute admissiblein evidence without proof of the loss or destruction of the originals.
First. They were entirely immaterial to the decision of the case. The subsequent evidence of Eaton and Mesick rendered their admissibility of no consequence.
Second. But even if the instruments had been material to the decision of the case, there would have been no error in admitting the copies without accounting for the originals, because the copies were duly certified transcripts of instruments, properly acknowledged and duly recorded. The transcripts thus became by force of statute of equal admissibility as the original instruments. They had ceased to be secondary evidence. (See Act concerning Conveyances, Sec. 8, Compiled Laws, p. 514; see Act concerning County Recorders, Sec. 21, Id. p. 844.)
The case of Powell's Heirs v. Hendricks (3 Cal. p. 430), is not in conflict with the above. There the paper offered was a copy from the records, but not of an instrument duly acknowledged. Of course the copy was inadmissible, because the original itself, if produced could not have been used in evidence without proof of its execution, and to have allowed the copy to be received, would, as Judge Heydenfeldtremarks, have made the copy superior to the original. But if the original had been duly acknowledged, the certificate of such acknowledgment would have rendered it admissible, under the statute, without further proof. (Act concerning Conveyances, Sec. 29, Comp. Laws, p. 571.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
This case must be reversed on the authority of McCann v. Beach (2 Cal. 25), and the Executors of Folsom v. Scott (ante, 460), at this term. Section 21 of the Act of March, 1851, provides that copies of papers from the recorder's office shall be received with the like effect as evidence " as the originals could be if produced." This does not dispense with the production of the original if it can be obtained. It merely fixes the value as evidence of the copy, when from the loss of the original it is necessary to be introduced. There is no attempt by this section to dispense with the rule that the best evidence must be resorted to which the nature of the case will admit.
The counsel for respondents urges that these deeds and power of attorney, copies of which were given in evidence, were immaterial to the decision of the cause on account of the subsequent testimony of a witness. This may be so, but we cannot know it unless we had some mode of ascertaining whether the judge who tried the case gave as much weight to the one kind of evidence as the other.
Judgment reversed, and cause remanded.