April 24, 2012

Gholson v. Lefevre, Wayne, 1814

Previously:


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GHOLSON v. LEFEVRE, &c.

COURT OF APPEALS OF KENTUCKY

16 Ky. 191; 1814 Ky. LEXIS 11; Litt. Sel. Cas. 191

October 11, 1814, Decided

PRIOR HISTORY:  [**1]  From the Wayne Circuit Court. 

DISPOSITION: Judgment reversed with costs, and cause remanded.

JUDGES: CH. J. BOYLE. 

OPINION BY: BOYLE 

OPINION
 [*191]  OPINION OF THE COURT, BY CH. J. BOYLE.

THIS was an ejectment, on the trial of which the plaintiff offered in evidence a copy (from the register's office of Virginia) of a grant from that commonwealth, bearing date the 17th of October, 1790; but the defendants objected to its admission as evidence, because it was a copy, and the court sustained the objection, and refused to admit it as evidence. The plaintiff excepted, and a verdict and judgment being given against him, he has brought the cause before this court by a writ of error.

The only question is, whether the court below erred in rejecting the copy of the grant as evidence. In deciding upon this question, there is no necessity to inquire how far, upon the general principles of the common law, a copy of a grant would be admissible evidence, without accounting for the absence of the original; for it is expressly provided by the act of 1779, establishing a land-office, that "all copies of the records and other papers of said office, duly attested by such register, shall be as good evidence as the originals [**2]  would be." This provision, if in force here, evidently embraces the case before the court, and must be decisive in favor of the admission of the copy offered in evidence. At first view, a doubt suggested itself, whether the provision was not local in its nature, and therefore excepted from the laws of Virginia which were adopted when Kentucky became a separate state. But this doubt was completely removed, by adverting to the circumstance, that this provision is contained in the collection of acts and parts of acts of the Virginia  [*192]  assembly concerning land titles in this commonwealth. That collection was not only made under the authority of the legislature of this state, but when made was adopted and passed in the usual form of other legislative acts. This must, therefore, certainly be considered as a declaration on the part of the legislature, that the provision in question is in force in this state, and forms the rule of decision in cases to which it is applicable.

It results, then, that the copy offered in evidence in this case was admissible; and consequently, that the court below erred in rejecting it.

Judgment reversed with costs, and the cause remanded, that new [**3]  proceedings may be had, not inconsistent with the foregoing opinion.

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