Hampton's Lessee v. M'ginnis , 2 Tenn. 9 ( 1805 )

[S. C., 1 Tenn. 286.] The plaintiff's counsel moved for a continuance upon an affidavit, stating that his claim was bottomed upon an entry made in Carter's office or a Carter's warrant; that the records of those entries were lost; that he applied to the secretary of the State of Tennessee, with whom the different bundles of locations were deposited for safe-keeping, for a copy as the next best evidence that he knew of;¹ that the secretary refused, as having no authority by law to give copies; that without evidence of the entry, he cannot safely come to trial, and expects to procure such evidence at the next term.

¹ There is no complete evidence of the entries made in the county of Washington or Carter's office. The entry books have been lost or destroyed, as well as a great part of the locations. An abstract purporting to be of these entries was found in the secretary's office of the United States, but by whom it was there deposited is unknown to the reporter. There was no authority by law for making and depositing such abstract. It never has been received as evidence in our courts to affect grants in any manner; nor is it probable that it ever will, as it will appear manifestly incomplete when compared with the varrants, from that office, now in existence. The legislature thought proper to make it evidence for another and different purpose, viz., as auxiliary evidence, in the adjudication of land claims, yet to be perfected into grants, but not conclusive evidence. See Act Tenn. 1807, c. 2, § 12. There is a difficulty in this case; what will be the best evidence after the loss of the entry book it is not now necessary to determine. The plaintiff might well think that a copy of the location would answer. There are some of these locations to be found, but it is understood that most of them, after the lapse of so many years, are lost. The warrants of survey, issued by the entry takers are in the secretary's office of North Carolina. It is not improbable that the legislature may take up the subject. At present it by no means appears that the location or a copy of it would be evidence. There is however sufficient cause for a continuance.