—Baldwin, J. and Cope,J. concurring.

At the July term we rendered a decision in this case, reversing the judgment of the Court below and directing a new trial, on the ground that the Court erred in admitting in evidence a copy of the grant to Francisco Soto, the father of the plaintiff, without any excuse being given for the nonproduction of the original. We held that if the original, as a document or record in the custody of a public officer, could not be taken from the office of the Surveyor General—where it was shown to be on file—by the regulations of the department having charge of the public surveys, proof of the fact should have been made as a preliminary to the introduction of the copy. But at the same time we observed, that the plaintiff might have obviated the necessity of such proof by producing a *95certified copy of the grant under the statute. After the decision was rendered, the parties filed a copy of the grant duly certified under the statute by the Surveyor General, with an admission that the same was the copy used on the trial, as stated in the record. Upon this admission, a rehearing was granted, and the case has since been heard on its merits.

The grant, under which the plaintiff claims, was issued in 1842, and is for one league of land, with specific boundaries. The grantee died in 1845, leaving a widow and seven children, all of whom are still living. The plaintiff is one of the children. The land granted was occupied by the grantee during his life, and by his widow and children after his death, until the same was encroached upon by intruders. The premises in controversy are a part of this land, and were in the possession of the defendant at the commencement of the action. The grant was confirmed by the United States Board of Land Commissioners, and its decision was affirmed by the United States District Court. And from the decree of that Court the United States declined to prosecute an appeal.

On the trial, objections were urged to the admission of a copy of the grant, and of the grant itself. Those urged to the copy—that no excuse was given for the nonproduction of the original, and that the testimony of the witness, who compared the copy with the original, was insufficient to establish its correctness as such copy— were obviated by the statute. The copy, which the parties have admitted was produced on the trial, was certified to be a true and accurate copy, and thus certified, it was admissible under the statute, "with the like effect as the original.” The object of the statute was to obviate the objection to copies of a certain class of papers in the custody of the Surveyor General as secondary evidence, and to place such copies as evidence on a footing with the originals. It authorizes the copies to be received and read when the originals, if produced, would be admissible. (See Natoma W. & M. Co. v. Clarkin, 14 Cal. 552.) In the present case, the signatures of the Governor and of the Secretary of the Department of California at the time the grant bears date, were proved to be genuine. This proof was sufficient prima facie evidence to authorize the admission of the original, and as a consequence, of a *96copy properly certified. The decree of the United States District Court, recognizing the grant and affirming its validity, having become final by the refusal of the United States, through their counsel, to prosecute any appeal therefrom, is conclusive as to the validity of the grant upon the United States, and all parties claiming under them by title subsequent.

The objections urged to the admission of the grant itself were clearly untenable. The objections were, that there was no evidence that the grantee, previous to the issuance of the grant, ever presented a petition to the Governor expressing his name, country and religion, and the number of his family; or that the grant ever received the approval of the Departmental Assembly; or that the grant, or any proceedings in reference to it, were ever reported to the Supreme Government of Mexico. They were taken upon the impression that, by the decision of the Supreme Court in the case of the United States v. Cambuston, (20 How. 59) there was no authority in the Governors of the Department of California to make a grant of land until a petition, containing a statement of the particulars mentioned, was presented to them by the grantee ; and upon the impression that the grant was inoperative, unless it had received the approval of the Departmental Assembly, and the proceedings with reference to it had been reported to the Supreme Government.

We do not understand that the decision in the Cambuston case goes to the length contended by counsel; but if it does, the objection, from the absence of a petition, would be only available against the confirmation of the grant. After such confirmation has become final, it it is too late to press it. The only authority which could pass upon the validity of the grant—a copy of which was produced in the present case—and determine the land it contains, has definitively acted, and the matter has become settled for all time.

The want of approval by the Departmental Assembly, or of any report of the grant, or of the proceedings with reference to it, to the Supreme Government, did not prevent a title from passing to the grantee. And it is immaterial whether that title be regarded as a legal or an equitable one ; it carried with it a right to the possession of the premises against all intruders. (See Ferris v. *97Coover, 10 Cal. 589 ; Cornwall v. Culver, 16 Id. 424 ; Riley v. Heisch, 18 Id. 198.)

The instructions to the jury, requested by the defendant, were properly refused. The one relating to the recitals was irrelevant, after proof of the confirmation of the grant; and the one relating to the proof of a copy of an instrument by comparison was irrelevant under the stipulation of the parties; and the others were erroneous. In this State, a plaintiff claiming as heir at law can recover in an action of ejectment without an entry upon the premises after the death of his ancestor. It is sufficient that he show bis title as heir to the premises demanded. Francisco Soto having died in 1845, the heirs took the estate, and are proper parties to suits for a recovery of the premises. The statute which gives the possession and control of real property belonging to intestates to their administrators until administration of the estate and distribution of the property are had, only applies to cases arising since the statute was passed.

Judgment affirmed.

Cope, J. concurring.

The plaintiff in this case bases his claim to recover one undivided seventh of the premises described in the complaint upon a grant issued to his father in 1842, by Alvarado, who was then Governor of California. The grant is on file in the office of the Surveyor General of the United States; and on the trial, the plaintiff, after proving the signatures of the Governor and Secretary attached to *94it, produced what purported to be a copy, and endeavored to establish its correctness as such copy by the testimony of a witness who had compared it with the original. Some question is made as to the effect of the testimony on this head, but we do not regard it as at all material; for, admitting the testimony to have been sufficient, the copy was but secondary evidence, and as such, was, of course, inadmissible until some excuse was given for the nonproduction of the original grant. If the original, as a document or record in the custody of a public officer, could not be taken from the office of the Surveyor General by the regulations of the department having charge of the public surveys, proof of the fact should have been made as a preliminary to the introduction of the copy. No such proof was made or attempted; and the objection on that ground of the appellant was, therefore, well taken. The plaintiff might have obviated the necessity of such proof, by producing a certified copy of the grant under the statute. (Session Laws of 1857, Ch. 254.) But not relying upon the statute, and acting independently of it, he should have laid the proper predicate for the introduction of a copy which the common law in such cases requires. (Hensley v. Tarpey, 7 Cal. 288.)

Judgment reversed and cause remanded for a new trial.