JULY 1830. Hamner V. Eddins. } "SURVEYOR'S OFFICE, FLORENCE, ALA. 2 14th January, 1826. "SIR: Herewith you will receive the field notes of twelve townships of land, to wit: townships No. 22 of ranges No. 6 to 17 inclusive, and which have been sold at Tuscaloosa. (Signed) JOHN COFFEE." The bill of exceptions states that no other evidence was offered concerning said notes, and no signatures were proved. That other paper purported to be a similar copy of the field notes relating to township 21, at the bottom of the last page of which was a memorandum as follows, viz: "examined; John Coffee, Surveyor, by James G. Weakley, Chief Clerk, Surveyor's office." Relative to this paper, Mr. Gould testified that it was in his office at the time of his appointment. In the land laws of the United States, page 421, we find the following provision. "Every Surveyor shall note in his field book, the true situation of all mines, salt licks, salt springs, and mill seats which shall come to his knowledge; all water courses over which the lines he runs shall pass, and also the quality of the lands. These field books shall be returned to the Surveyor General, who shall therefrom cause a description of the whole lands surveyed, to be made out, and transmitted to the officers who may superintend the sales." If these papers were admissible as evidence they must be made so by some rule of evidence relating to public documents. Public documents are either of record or not of record. It is not material as to the result of this investigation, whether the field notes which are returned to the office of the Surveyor General, shall be considered as belonging to the former, or latter of these divisions; but it is probable as respects the mode of proof, they may correctly be considered as records. Records may be proved either by mere production or by copy. In 1st Starkie 151, we are told that copies of records are either, first, exemplifications, or secondly, copies made by an authorized officer, or thirdly, sworn copies. Exemplifications are always proved by the seal of the office at which they are made out. These papers do not come within this description, for it is not pretended that there is any official seal known to the office to which field notes are required to be returned. They do not come within the description of copies made by an authorized officer. The law does not require the Surveyor General to have copies of the field notes, which are returned to his office, transmitted to the officers who may superintend the sales; but that from such field books he shall "cause a description of the whole lands surveyed, to be made out and transmitted to such officers." According to the law therefore, it is left to the Surveyor General to extract from these notes so much as he may think proper, and to vary the language used in them in such way as he considers calculated to give the best knowledge of the lands. Taking it for granted that the papers which were offered in evidence emanated from his office, but it is far from being certain that there was sufficient proof of this fact, still they could not come within the description of copies of records issued by an authorized officer. It follows, therefore, that nothing but a sworn copy of the field notes, taken from the originals in the office of the Surveyor General, would be legal evidence. The Circuit Court, therefore, erred in permitting these papers to go to the jury. The point relative to the deposition was not argued, and therefore is not considered in the decision. Let the judgment be reversed and the cause remanded; in this opinion the Court is unanimous. JULY 1830. Hamner V. Eddins. Reversed and remanded. JUDGE CRENSHAW, not sitting. SEWALL V. BATES' Administrators. When a defendant dies after judgment, to prosecute a writ of error against his representatives, the proper course is to apply to this Court for a certiorari to bring up the record, and for a scire facias against his adminis trators to make them defendants. RUFUS SEWALL, by his counsel, filed his petition in this Court at this term, setting forth that at the April term, 1828, of Mobile Circuit Court, he had entered a rule. against James P. Bates, then Sheriff of that county, requiring him to shew cause why he should not be held as special bail for the defendant in a suit therein pending, in which the petitioner was plaintiff, and one Daniel Stow 3s 199 $127 397 JULY 1930. Sewall V. was defendant; that the motion was heard and the Circuit Court determined that he should take nothing by his motion; that the petitioner was desirous to procure a revision Bates' Ad- of that decision in this Court, but that Bates died in July, ministrators. 1828, before a writ of error had been obtained. The petitioner produced a copy of the record, and also a duly certified copy of an order made by the County Court of Mobile county, shewing the death of Bates, and that Joseph Bates, Jr. and Theophilus L. Toulmin, had been duly appointed his administrators. 462. GORDON, for the petitioner, now moved the Court to grant either a writ of error, or certiorari, which ever the Court might deem the most proper under the circumstances, to bring the case into this Court, and for a scire facias against Bates and Toulmin, to shew cause why they should. not be made defendants to the suit in this Court. By JUDGE TAYLOR. That a party situated as Sewall is, should have some mode provided by which he can get his cause into the appellate Court for revision, is certain. It was determined at the last term, that this cannot be done by suing out a writ of error from the office of the Clerk of the Circuit Court, in the manner which is prea 2 Stewart scribed, when the parties to the judgment are living, a The statute prescribes the mode of suing out a writ of error, which cannot be used in this case; therefore, to secure to the plaintiff his rights, some other practice must be adopted. It is believed that the course is to order a certiorari to the Clerk of the Circuit Court, commanding him to certify and send up to the next term of this Court, a transcript of the record, and also to award a writ of scire facias against Joseph Bates, Jr. and Theophilus L. Toulmin, the administrators, requiring them to appear at the next term of this Court, and shew cause if any they can, why they should not be made parties to the suit in this Court. It certainly would not be proper to permit the transcript which has been exhibited, to sustain the petition, to be filed in this Court, as the record upon which errors are to be assigned, because it has been brought here voluntarily by a party, and not in obedience to any fiat of the Court. Let writs of certiorari and scire facias issue in conformity with the foregoing opinion. BARRINGER & RHODES V. SNEED. 1 Where the subscribing witness to an instrument resides out of the State, 3. After the dissolution of a firm, the declaration of a defendant that his JAMES SNEED, brought an action of assumpsit in Tus caloosa Circuit Court, against M. Barringer and S. Rhodes, as copartners, for damages for the non-performance of a contract in writing, which he alleged was lost, and of which he produced a copy as follows: "An article of agreement between James Sneed of the one part and Matthew Barringer of the other: witnesseth, that the said Matthew doth agree to load James Sneed's boat to Mobile with corn, at the rate of twenty five cents per bushel, freight to be paid at the place above mentioned; and also to load the boat with two hundred barrels and more if convenient, which freight is to be delivered at Tuscaloosa, at four dollars per barrel; as witness our hands and seals, the 25th day of May, 1820. JAMES SNEED, MATTHEW BARRINGER." Attest: CONST. P. SNEED. This contract he alleged was made by Barringer on ac count of himself and the defendant Rhodes, and that they were copartners and jointly liable for its performance. The defendants pleaded the general issue, The cause was tried at the fall term, 1828, before the Honorable Judge White. The plaintiff proved by a witness named Marr, that the original contract was lost, and offered a copy in evidence, which Marr said he had drawn from the original and given to the plaintiff. The defendants objected to the sufficiency of the proof of the contract, because the subscribing witness was not produced, nor his absence accounted for. The plaintiff then proved that the subscribing witness lived in the State of Tennessee; it appeared he was the son of the plaintiff, who also resided there, that his place of residence was known' to the plaintiff, and that no effort had been made to obtain JULY 1830. JULY 1830 Rhodes V. Sneed. his evidence by deposition or otherwise. The Court overruled the ojections of the defendants, and suffered Barringer & the copy to be read to the jury. The defendants further objected to the reading of said contract, because it varied from the declaration, but the Court overruled the objection and permitted evidence to go to the jury that the defendant Rhodes was a reputed partner of the firm of Barringer & Rhodes in a grocery store after the time the said contract was made, which was also objected to. The plaintiff further offered to prove by a witness the declarations of Barringer, made after the dissolution of the copartnership, to establish its existence. This was also objected to, but the objection was overruled. The defendants offered to prove by one Jacob Putt, that at the time of the execution of the contract, it was stipulated between the plaintiff and Barringer, that the plaintiff's boat should reach Mobile in eleven days from the date of the contract. But because this evidence was not in writing the Court rejected it, and would not permit it to go to the jury, otherwise than as shewing what the parties considered a reasonable time for the boat to reach Mobile, or to shew a new contract or a modification of the first. The defendants then offered in evidence the declarations of the plaintiff, immediately before and after the execution of said contract, in the presence of Barringer and others, that he considered himself obligated to reach Mobile with his boat in ten days after the date of the contract. This the Court rejected in any other view than as stated above. The defendants requested the Court to give the following instructions to the jury: 1st. That if they believed from the evidence there was a subsequent modification of the contract by the parties, and that the plaintiff did not comply with his contract as modified, it forming a precedent condition, he could not recover. 2d. That if they believed that subsequent to the written contract, the parties formed a new contract by parol, that the plaintiff could not recover in this action. 3d. That if they believed from the evidence that the plaintiff was bound to have his boat in Mobile within eleven days from the date of his contract, and that the boat did not arrive there within that time, the defendants were not liable; and 4th. That if they believed that Rhodes was the acting partner of the NOTE-There were no common counts in the declaration, and no count formed on such a subsequent contract. |