(dissenting).—The court, I think rightly,
holds this to have been an action for specific performance of a contract to convey land. That contract was for the plaintiff to prove. No conveyance had ever been made except from agent to principal, and the patent ran to the defendant. To make this proof the plaintiff resorted to what I consider to be an extraordinary and most dangerous device. The contract happened to be written upon the back of the duplicate receiver’s receipt, an unimportant paper, which the routine of the general land office required should be surrendered when the patent was delivered by the agent of the government to the patentee, or the person by him designated to receive it. Now, under the plea that because that useless duplicate receiver’s receipt was in fact among the files of the land office, the court allows a copy of the receipt and the writing on the back of it to be received in a court of justice as evidence of this important contract, because the commissioner of the general land office has certified that he finds that writing there. The acceptance of this paper was based upon the theory that inasmuch as it was out of the possession of both parties to it, secondary evidence as to its contents was receivable. I am willing to admit that secondary evidence was admissible, but the certificate of the commissioner was not evidence either primary or secondary. Secondary evidence must be given upon the oath of a witness, either in court or by deposition. The copies of papers admissible under § 432, Code of 1881, are admissible as original papers, without the necessity of accounting for the loss of the originals. The paper here in discussion was, as the respondent himself contended, an informal conveyance, which, by reason of its informalities and want of acknowledgment, could be enforced only as a contract to convey. But with such an instrument the land office had no concern, and the commissioner was not made the custodian of it. If a complete deed had been *259made on a separate paper, and filed in the local land office, to show the right of the grantee to have delivery of the patent to him, would it be contended that a certified copy of that deed could be received ? No more this. Admit that the commissioner was made the voluntary custodian of the contract, would he stand in any different relation to the court than any other man who might have been a custodian! But the latter would certainly have been required to make his deposition, exhibit the original and attach a copy, in order that his statement should become secondary evidence. In that event the opposite party would be notified, would have opportunity to examine and perhaps photograph the paper, and could cross-examine the witness. The receiver’s receipt part of this paper was of no materiality whatever to any issue in this case, and that was all that the commissioner’s certificate could cover; the other side of the sheet was blank paper as to him, except as it might show his justification for delivering the patent to Meigs, which was also immaterial to the case. Without this paper there was no proof of the contract to convey, and I hold that the case failed for that reason.