United States v. Percheman.

ments above mentioned, that you may give their correspondent direction, with the intention, by the first opportunity, of informing his majesty of what I consider just as to the remuneration before mentioned."

It appears, then, that the part of the royal order which is supposed to limit this power of the governor to grants of one hundred acres does not comprehend the petitioner; that he is mentioned in that order as a person entitled to the royal bounty, the extent of which is not fixed, and respecting which the governor intended to inform his majesty. The royal order, then, is referred to in the petition, as showing the favorable intentions of the crown towards the petitioner; not as ascertaining limits applying to him, which the governor could not transcend. The petition also refers to certificates granted by General Kindelan, and the governor himself, expressing his merits and services during the siege. These could have no influence, if the amount of the grant was fixed. In his grant, annexed to the petition, the governor says, "whereas, this officer, the party interested by the two certificates inclosed, has proved the services which he rendered in defence *98] of *this province, and in consideration also of what is provided in the royal order of the 29th of March last past, which he cites, I do grant him," &c. Military service, then, is the foundation of the grant, and the royal order is referred to only as showing that the favorable attention the king had been directed to the petitioner. The record furnishes other reasons for the opinion, that the power of the governor was not so limited in this case, as is supposed by the attorney for the United States.

The objection does not appear to have been made in the territorial court, where the subject must have been understood. It was neither raised by the attorney for the United States, nor noticed by the court. The register and receiver, before whom the claim was laid by Sanchez, the assignee of the present petitioner, did not reject it, because the governor had exceeded his power in making it, but because the survey was not exhibited. "If this" (the survey), say the register and receiver, "had been produced, it would have furnished some support for the certificate of Aguilar; as it is, we reject the claim." It may be added, that other claims under the same royal order for the same quantity of land, have been admitted by the receiver and register; and have been confirmed by congress. We do not think, the testimony proves that the governor has transcended his power.

The court does not enter into the inquiry, whether the title has been conveyed to Sanchez or remains in Percheman. That is a question in which the United States can feel no interest, and which is not to be decided in this cause. It was very truly observed by the territorial court, that this objection" is founded altogether on a suggestion of a private adverse claim;" but adverse claims, under the law giving jurisdiction to the court, are not to be decided or investigated. The point has not been made in this court. The decree is affirmed.

62

Decree affirmed.

*JOHN MINOR, Plaintiff in error, v. SHURBAL TILLOTSON.

Evidence.-Lost instrument.

What will be deemed sufficient evidence of diligence and sufficient search for a lost or mislaid original paper, to permit a copy to be read as secondary evidence.

The rules of evidence are adopted for practical purposes in the administration of justice; and although it is laid down in the books, as a general rule, that the best evidence the nature of the case will admit of, must be given; yet it is not understood, that this rule requires the strongest possible assurance of the matter in question. The extent to which the rule is to be pushed is governed, in some measure, by circumstances; if any suspicion hangs over the instrument, or that it is designedly withheld, a more rigid inquiry should be made into the reasons for its nonproduction; but where there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original.1

ERROR to the District Court for the Eastern District of Louisiana.

This case came before the court, and was argued by Clay, for the plaintiff in error; and by Webster, for the defendant.

The only point decided by the court, with the facts which presented it for consideration, are fully stated in the opinion of the court.

tions in the case, in relation to the admission of testimony were argued by the counsel for the parties; but the court considered them so imperfectly stated, as to require that another trial of the cause should take place in the court below.

THOMPSON, Justice, delivered the opinion of the court.-On the trial of this cause, in the district court of the United States for the eastern district of Louisiana, a bill of exceptions was taken to the ruling of the court in rejecting certain evidence offered by the plaintiff in support of the title set up by him, and the case is brought here by writ of error. The bill of exceptions states, that the plaintiff, having set up title to the premises in dispute, by virtue of a sale from general *Wade Hampton, dated the 5th [*100 of April 1819, then offered in evidence another paper, purporting to be a copy of the grant, under which said Hampton claimed, which copy had been duly presented and registered by the land-commissioners of this district, in the year 1806, having first proved that many of the ordinances of the Spanish governors of Louisiana had been deposited in the notarial office of Pedro Pedescloux, the notary, who certified the said paper, under his hand and notarial seal, and who is now dead; and also having first proved, that the original grant was once in the possession of General Wade Hampton, but that he had, by his attorney, applied to said Wade Hampton for it, who gave him a bundle of papers, saying they were all the titles of his Houmas lands in his possession, but which bundle did not contain the orignal of the paper sought after. The plaintiff also offered in evidence the

1 The slightest proof of the loss of a paper which has ceased to be of any use or value, or any evidence of title, is sufficient to let in secondary evidence of its contents. Bond v. Root, 18 Johns. 60. s. P. American Life and Trust Co. v. Rosenagle, 77 Penn. St. 507. Proof that a trunk of papers belonging to a grantee, was destroyed by fire, after his death,

is sufficient to let in parol evidence of the existence and contents of a power of attorney, by virtue of which the conveyance to him was executed. Livingston ». Neely, 10 Johns. 374. It is sufficient for the admission of secondary evidence of a lost record, that it appears to be the best which the party has it in his power to produce. Cornett v. Williams, 20 Wall. 226.

Minor v. Tillotson.

translation of said document, published by congress, in the book called the Land Laws of the United States, pp. 954-8, published in the year 1828. These papers were objected to, on the ground, that they were not the best evidence, and that due diligence had not been used to procure the originals; and the court sustained the objection.

The document offered and rejected by the court, is to be considered as secondary evidence; and there can be no doubt, that the plaintiff was bound to account for the non-production of the original. This is a document which the law does not presume to be in the possession of the plaintiff; it is the grant under which Wade Hampton claimed; a small part of which only was in question in this suit. The presumption of law, therefore, is, that the original deed was in the possession of Wade Hampton, and the plaintiff could not be bound to search for it elsewhere; there being no law in Louisiana requiring deeds to be recorded. And it was proved, as matter of fact, that it was once in his possession, at what time, however, is not stated; and the question is, whether such search was made for it, as to justify the admis⚫sion of secondary evidence. The rules of evidence are adopted for practical purposes in the administration of justice; and although it is laid down in the books, as a general rule, that the best evidence the nature of the case will admit of, must be given; yet it is not *understood, that this *101] rule requires the strongest possible assurance of the matter in question. The extent to which the rule is to be pushed, in a case like the present, is governed in some measure by circumstances. If any suspicion hangs over the instrument, or that it is designedly withheld, a more rigid inquiry should be made into the reasons for its non-production. But when there is. no such suspicion, all that ought to be required is reasonable diligence to obtain the original. Has that been shown in this case? The exception states, that it was proved to have been in the possession of Wade Hampton, and that on application to him, by the plaintiff's attorney, for it, he gave him a bundle of papers, saying, they were all the titles to his Houmas lands (the premises in question being a part of the tract); but which bundle, on examination, did not contain the original deed in question. There was no other place to which the law pointed, where search could be made; and nothing more could be required, unless it was necessary to have the oath of Wade Hampton, that the deed was not in his possession. But this we do not think, under the circumstances of this case, was necessary. There do not appear any grounds for supposing the deed was designedly withheld; and the circumstances under which the search was made, were equivalent to the witness's having had free access to all Wade Hampton's papers, and proving that the deed could not be found among them. The examination was made by the witness, under all the advantages and prospect of finding the deed that could have been afforded to Hampton himself. He was, for this purpose, in the possession of all his papers; and not finding it, the inference was very strong, that it was lost. And the antiquity of the deed, being dated in the year 1777, rendered its loss the more probable.

The case of Caufman v. Congregation of Cedar Spring, 6 Binn. 59, decided in the supreme court of Pennsylvania, goes very fully to establish that it was not necessary to have the testimony of Wade Hampton, under the circumstances of this case. In that case, a written agreement was placed in the hands of a common friend, who, upon his removal to another

Nichols v. Fearson.

place, had put the paper into the hands of his father, who died. After proof of these facts, a witness swore, that, *after the father's death, he, together with the son-in-law, to whom all his papers came, [*102 made diligent search among the father's papers, but could not find the writing. It was held, that this was sufficient proof of the loss, to lay the foundation for proving the contents of the paper, without the oath of the son-in-law himself, as to the search and not finding the paper.

We think the proof of the loss of the original deed was sufficient to let in the secondary evidence. We forbear, however, expressing any opinion upon the legal effect and operation of that deed. The judgment of the court below must be reversed, and the cause sent back, with directions to award a venire de novo.

There were several other exceptions taken to the ruling of the court, in relation to the admission of testimony, which we do not notice. They are so imperfectly stated, that it is difficult to understand, what the real point of objection is; and no opinion can be expressed that will aid the court below on another trial. Judgment reversed.

THIS cause came on to be heard, on the transcript of the record from the district court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said district court in this cause be and the same is hereby reversed; and that this cause be and the same is hereby remanded to the said district court, with directions to award a venire facias de novo.1

*WILLIAM S. NICHOLS, Plaintiff in error, v. SAMUEL J. FEARSON [*103 et al.

Usury.

A promissory note, payable at a future day, given for a bona fide business transaction, and which note was not made for the purpose of raising money in the market, was sold by the payee and indorser, for a sum so much less on its face, as exhibited a discount beyond the legal rate of interest, no stipulation having been made against the liability of the indorser, is not per se a usurious contract between the indorser and indorsee, and an action can be maintained upon the note against the indorser who sold the same, by the purchaser.

The courts of New York have adjudicated, that whenever the note or bill in its inception was a real transaction, so that the payee or promisee might, at maturity, maintain a suit upon it, a transfer by indorsement, though beyond the legal rate of interest, shall be regarded as a sale of the note or bill, and a valid and legal transaction; but not so, where the paper, in its origin, was only a nominal negotiation.'

There are two cardinal rules in the doctrine of usury, which we think must be regarded as the common place, to which all reasoning and adjudication upon the subject should be referred: the first is, that to constitute usury, there must be a loan in contemplation by the parties; and the

1 For further points in this case, see 1 How. 287, and 2 Id. 392.

A note, valid in its inception, though sold at a greater discount than legal interest, is not usurious; the test of its validity is the right of the payee to maintain an action upon, when due. Powel v. Waters, 8 Con. 669. But the sale 7 PET.-5

of a promissory note, by the payee, at a greater discount than lawful interest, renders it usurious and void, if it was not a perfect and available instrument in his hands. Eastman v. Shaw, 65 N. Y. 522; Tiedemann v. Ackerman, 16 Hun 307.

65

Nichols v. Fearson.

second, that a contract which. in its inception is unaffected by usury can never be invalidated by any subsequent usurious transaction.

ERROR to the Circuit Court of the district of Columbia, and county of Washington. The plaintiff in error instituted a suit on a promissory note, dated at Georgetown, October 22d, 1821, for the sum of $101, payable to the order of S. & J. Fearson, the defendants, and by them indorsed. The evidence in the case showed, that on the 26th of October 1821, the defendants came into the store of the plaintiff with the note, and told the plaintiff they had obtained the note from the maker for goods they had sold him at their store, and asked the plaintiff what he would give for it; the plaintiff said he would give $97 for it, which the defendants agreed to take; and thereupon, the plaintiff received the note, which was indorsed by the defendants, before it was brought to the store, and $97 were paid to the defendants for it. When the note became due, and being unpaid by the maker, *104] the defendants promised to pay it.

Upon this evidence, the counsel for the defendants prayed the court to instruct the jury: "That if they believe from the said evidence, that the plaintiff received the note upon which this suit is brought, of defendants, with their indorsement upon it, and without an understanding that the defendants were not to be responsible on said indorsement, and that the plaintiff paid or agreed to pay therefor only the sum of $97, the transaction is usurious, and the plaintiff is not entitled to recover;" which the court gave as prayed. To which the plaintiff, by his counsel, excepted, and then prayed the court to instruct the jury: "If they should believe, from the evidence aforesaid, that the defendants, having the note in question, and wishing to part with it, in order to avoid suing the maker, and not having occasion or desire for a loan of money, offered to sell it to the plaintiff, and that the plaintiff, having some accounts with the maker, against which he expected to be able to set off the said note, and not with any other design, agreed to buy it, and did buy it, for $97; and that no loan for usurious interest, nor any loan, nor any evasion of the laws against usury was in the comtemplation of either of the said parties, then plaintiff is entitled to recover;" which the court refused.

The plaintiff's counsel prayed the court to instruct the jury: "If they believe, from the evidence aforesaid, that this note was sold, and not received by plaintiff, by way of discount or loan, plaintiff is entitled to recover;" which also was refused.

The plaintiff excepted to the instructions of the court given to the jury on the prayers of the defendants; and also to the refusal of the court to give the instruction asked by them. The jury having found for the defendants, this writ of error was prosecuted to reverse the judgment of the court on the same.

The case was argued by Key, for the plaintiff in error; and by Coxe, for the defendants.

Key, for the plaintiff in error, contended, that the *question of *105] usury was one depending entirely on the transaction out of which it was said to arise. If a loan was the object of the dealing between the parties, it might be usury; but if it was only the sale of a note already made,