The plaintiff claimed the property levied upon by the sheriff, under a chattel mortgage. The mortgage was not produced on the trial, but a copy certified by the county clerk. This was objected to by the defendant as improper, as secondary evidence and incompetent. The objection was overruled. By chapter 279 of the laws of 1S33, (4 Statutes at Large, 436.) it is provided that a “copy of any such original instrument or of any copy thereof so filed as aforesaid, including any statement made in pursuance of this act certified by the clerk or register, in whose office' the same shall be filed, shall be received in evidence, but only of the fact that such instrument or copy, and statement was received and filed according to the indorsement of the clerk or register thereon, and of no other fact.”
The original mortgage was within the control and subject to the order of the plaintiff, although on file in the clerk’s office, and should have been produced, and its execution proved, as in ordinary cases of private writings between parties.
We are referred to the Revised Statutes, which provide that “the copies of all papers duly filed in the office of the county clerk, and transcripts from the books of record kept therein, certified by such clerk with the seal of his office affixed, shall be evidence in all courts in like manner as if the originals were produced.” (1 R. S., 350, $ 65.)
•The papers here specified only include public records, which would be recognized as such by the court without collateral evidence of their identity and genuiness, or such as are duly proved or acknowledged- before they are put on file.' It is a general rule that whenever the thing to be proved would require no collateral proof upon its production, it is provable by a certified copy from the office where by law *505it is required to be kept. (See 1 Greenl. Ed., §§ 91, 489.) Here the original was not in any sense a public document, nor did it purport to be proved or acknowledged before a magistrate or officer having authority to take proofs or acknowledgments of private writings. .
There is no rule of law or statute, which authorizes a certified copy of such an instrument to be received in evidence in place of the original.
It is said that the execution of .the original was proved without objection. It was indeed proved that a mortgage was given, but I am unable to discover that any proof of its contents was made before the ruling'of the justice allowing the copy to be read in evidence.
The act of 1833 restricts the effect of the evidence to certain facts, and expressly declares that the copy shall be received, in evidence of “ no other fact.” This would be sufficient of itself to exclude the evidence without reference to the provisions cited from the Revised Statutes.
As the plaintiff’s title depended upon the chattel mortgage, it is clear that she could not recover without producing it on the trial and proving its execution. Proving its execution without producing it, would not obviate the objection, unless it was shown to be lost, or its non-production accounted for, so far as to lay the foundation of proof of its contents by secondary evidence.
The judgment of the county court and of the justice, should be reversed.
Mullís, P. J., and Doolittle, J., concurred.