King v. Kenny

Ohio Supreme Court
King v. Kenny, 4 Ohio 71 (Ohio 1829)

King v. Kenny

Opinion of the Court

By the Court :

The error complained of in this case is, the admission of original documents in evidence instead of authenticated copies. It is clear that the question, as presented in the record, is not a mere abstract proposition, as applicable to any other case as to this. In such cases, a bill of exceptions does not lay the foundation for a writ of error. 1 Cranch, 310. Another rule as to the bills of exceptions is, that the party excepting must distinctly point out wherein he may have been prejudiced by the decision excepted to. 2 Caine, 169; 8 Johns. 387.

But waiving this consideration, the court are called upon to determine the points, whether the original papers with the minutes of the commissioners are admissible evidence to show the establishment of a road, or whether the record makes the public highway. The statute declares, the commissioners shall cause the report, survey, and plat to be recorded, and from thenceforth the road shall be considered a public highway. The petitioners, the reviewers, the surveyor, and commissioners performed the whole duties under the law. The omission was in the clerk of the commissioners. It would seem unreasonable that such ministerial nonfeasance should render the whole proceedings nugatory. *To authorize this construction for such omission would require precedent and authority; but, in fact, they are the other way. When all the requisites have been performed which authorize a recording officer to record any instrument whatever, it is in law considered as recorded, although the manual labor of writing it in a book kept for that purpose has not been performed. Marbury v. Madison, 1 Cran. 161; 10 East, 350, The commissioners holding a public office, and entitled to the cus*75tody of their own records, can not be compelled to produce the originals in court; but when presented they are as good evidence as copies can be, authenticated in the most ample forms of law. Courts, for a most obvious reason, will not compel the production of their own original records, as evidence for parties, or those of any other public officer; but have never refused to admit them on the grounds that they were not of as high a nature as copies. Indeed, it is a general rule, which admits of no single exception, that originals are good evidence where copies would be admitted. 1 Starkie Ev. 151. The authenticity of the copy can not be made more perfect than the record itself. A record, therefore, may be proved by mere production. It appears in this .case the original documents were before the court, as well as the minutes, and we will not inquire how they came there. When these proceedings were found in the possession of the party offering them in evidence, the court below had no further inquiry than to reject or admit them.

Judgment of the court below affirmed.

Reference

Full Case Name
Lawrence King v. Nathan Kenny
Status
Published