Field, C. J. and Cope, J. concurring.
We think the Court erred in rejecting proof of the grant. It was not necessary to its validity that proof should be made of the petition. The grant, if properly issued, is the effective paper. It » seems that the grant was in the hands of Weeks, Alcalde, and successor of Burton, the former officer acting as Alcalde, in October, 1847, and that Weeks copied it in the proper book of records used for recording such instruments ; that he knows Burton’s hand writing—that the signature to this grant is his, and that Burton was, at the date of it, Alcalde of San Jose; and that the record is a " true copy of this grant. It is shown not to be among the records of Santa Clara. The plaintiff’s aEdavit shows that he has searched among his private papers, and everywhere else, for this paper, where he thought it possible to find it, but without success. The aEdavit of the widow of the grantee—upon whose estate there seems to be no administration—says she has searched for it without effect. We think that the record should have been admitted upon this state of facts. The mere suggestion that this paper might have been taken to San Francisco by Minor is not enough to show that the plaintiff must aErmatively prove that he searched there. Prima facie it was enpugh to show that the grantee, or his representative or assignee did not have it, and that it was not in the place where it was last seen; but this aEdavit states that the plaintiff has not the paper, and that he has searched everywhere for it, where it could be expected to be found, and failed. It would he holding the rule to a degree of strictness which would' be oppressive, and, in many cases a denial of justice, to hold that more proof •than this of the inability to get the original paper should be required.
It is not necessary to inquire whether the oEcer had a right to grant as Justice, etc., or whether, if he had a right to grant as Alcalde, the fact that he signed his name Juez, etc., or J. P., instead of Alcalde, vitiates the grant. The question can be made after the proofs are in the cause; the objection to them was not on this ground, and the plaintiff may have cured this objection by other proof, if it had been taken, and there was anything in it.
Judgment reversed, and causeyemanded.