mark, that the revenue law in force at the time of the sale, set up in that case, declared the tax deed to be prima facie evidence of some facts, and conclusive evidence of the others; but a judgment against the land, and precept to the sheriff, were requisite, before the deed could be read in evidence. The special averments have this advantage over general ones. If the pleadings truly state the facts, the question, as to the validity of the tax sale, may be settled by the court upon demurrer, without the expense and delay of a trial by jury; and if the facts are not truly stated in the pleading, the exist ence of any particular fact may be denied by the opposite pleader, and thus the issue in fact to be tried will be narrowed down to a single point. Suppose, for example, in the Illinois case, the land had not been advertised for sale, in the time and manner required by law, and the pleader, in setting forth the proceedings, omits the averment that it was so advertised; on demurrer to the plea, the question of law is presented, whether an advertisement is a prerequisite which must be complied with, and the whole case must turn upon this point. On the other hand, suppose no advertisement was in fact made, but the pleader alleges one in his plea, the plaintiff may, by a general replication, traverse the truth of that allegation, and thus present an isolated question of fact for the consideration of the jury. Again, suppose an advertisement, but not in the time or manner required by law, a special replication and demurrer thereto may present the question of law to the court or a general traverse, the question of fact to a jury. In every view, therefore, the special mode of allegation is preferable. (a)

(a) See Louisville v. Bank of Kentucky, 3 Metc. (Ky.) 148.

It being alleged that notice was posted of sale at F. W. B.'s barn, the court presumed in favor of the sale, on demurrer, that this was a public place. Alger v. Curry, 40 Vt. 437.

In an action to foreclose a tax title, the deed being by statute presumptive evidence of the regularity of all prior proceedings, it was held sufficient to allege the execution of a valid deed by the proper officer, and to annex a copy of the same, without alleging the due and regular performance of all the acts necessary to make the deed valid. Byington v. Robertson, 17 Iowa, 562. But see Russell v. Mann, 22 Cal. 131, where it was held that whenever a tax title is specially set forth in a pleading it is necessary to aver every fact which must be proved to show compliance with the statute, and that this necessity is not obviated by the provisions making the tax deed proof of certain facts.

CHAPTER XXXVI.

OF THE RULES OF EVIDENCE RELATIVE TO MAINTENANCE AND OVERTHROW OF A TAX TITLE.

WHERE the statute, under which the title originated, or which is in force at the time of the trial, is silent as to the mode of proving or disproving any fact involved in the contest, the common-law rules of evidence must control the admissibility and effect of the testimony. It is a familiar rule, that the best attainable evidence shall be adduced by the party upon whom the onus probandi rests, to prove every disputed fact. The ground of this rule is a suspicion of fraud. If it appears, from the very nature of the transaction, that there is better evidence of the fact, which is within the power of the party, and is yet withheld from the court and jury, a reasonable presumption arises, that the failure to produce it is founded upon the knowledge of the party, that its introduction would defeat or weaken his claim of right. The rule is, therefore, essential to the pure administration of justice.

In requiring the production of the best evidence applicable to each particular fact, it is meant, that no evidence shall be received which is merely substitutionary in its nature, so long as the primary evidence can be had. The rule excludes only that evidence which, upon its face, or from the very nature of the fact sought to be proven, indicates the existence of more

original and reliable sources of information. Because 511 the better evidence affords the greatest certainty of the fact in question, and removes all suspicion of sinister

1 [In Lamb v. Gillet, 6 McL. 365, it is said, that parol evidence is admissible to prove the prior proceedings, except as to such facts as the statute requires to be of record.]

motives in the mind of the party, it must be resorted to in all cases. And so tenacious are the courts in the strict application of this rule, that even where it clearly appears that the better evidence is unattainable, because of its loss or destruction, the next best evidence must be resorted to, thus recognizing the principle, that there are degrees in the various kinds of secondary evidence.2 The application of this rule to the proof of a tax title is unquestionable. In some instances the statute law expressly requires that all of the proceedings shall be reduced to writing, and each document connected with them filed or recorded in some public office, for the benefit of all parties concerned; and makes the original, or certified or sworn copies thereof, admissible in evidence. But independent of this, the very nature of the proceeding implies the necessity of perpetuating the evidence of every part of it in writing, and forbids a resort to the memory of man for proof of any material fact connected with it. (a) The list, valuation, levy of the tax, the authority to collect, the return of delinquents, the advertisement, registry, and certificate of sale, deed, &c., all necessarily imply that they are to be in writing, and authenticated by the proper officer. It would be utterly impossible to conduct the proceedings in any other manner. The universal usage has been to reduce the proceedings to writing, and the authorities, either expressly or by implication, acknowledge the necessity of it. If this position be true, it follows inevitably that the best evidence to prove any disputed fact involved in the investigation of a tax title, is the original document, or a certified or examined copy thereof.

It has been said, that the original is in no case admissible, and that the party claiming under it must produce a certified or sworn copy, but it was held in Spear v. Ditty, that the rate * bill might be proved by the production of *512

1 Starkie Ev. part 3, sec. 10; 1 Greenl. Ev. ch. 4, sec. 82.

2 Greenl. Ev. sec. 84, note; Mariner v. Saunders, 5 Gilm. 121, 124.

(a) A tax collector cannot defeat a tax title by impeaching the truth of his own official return as to conduct of sale. Biscoe v. Coulter, 18 Ark. 423.

3 Laird v. Heister, ante, p. * 414, note; Job v. Tebbetts, 5 Gilm. 380; Bruen v. Graves, 11 Ill. 442.

4 8 Vt. 419.

itself. The most usual mode of proof is by means of an office copy i. e. by a copy made out by the officer having the legal custody of the original, and certified under his hand and seal of office. But an examined or sworn copy, made by a person who saw and copied from the original, is also admissible upon general principles.2 In no case can a private or unofficial copy, in the hands of the officer who made it, or to whom it was delivered, be received in evidence in lieu of the original, if the latter is in existence.3

Where the original is lost or destroyed, and no certified or examined copy is in existence, parol evidence of its contents may be resorted to; (a) but the proof of loss or destruction must be extremely clear, and the contents proved to the satisfaction of the court. But such evidence ought not to be permitted when there is any suspicion of a fraudulent destruction or suppression of the original. It is extremely dangerous in any case, and the necessity of resorting to it but seldom occurs. Where the original or a copy is offered, and it appears upon the face of either that the proceeding was irregular in any respect, parol evidence is inadmissible for the purpose of supplying the defect, or in any manner to aid by explanation.5 (b) And where the law requires the proceeding to be recorded, the title of the purchaser must stand or fall by the record itself; oral evidence being inadmissible where the officer omitted to record the originals, or recorded them defectively. In all cases where

*

office books and files (c) are relied upon to prove a 513 particular fact, their * admissibility depends upon the

1 Parker v. Smith, 4 Blackf. 70; Coman v. State, 4 Blackf. 241.

2 Graves v. Bruen, 1 Gilm. 167; s. c. 11 Ill. 431; Job v. Tebbetts, 5 Gilm. 376; 11 Ill. 453; Schuyler v. Hull, 11 Ill. 462; Sheldon v. Coates, 10 Ohio, 278. 3 McCall v. Lorimer, 4 Watts, 351.

(a) Wells v. Jordan Mang. Co., 47 N. H. 236.

4 Doe er dem. Kelley v. Craig, 5 Ired. 129; ante, p. 109; The Proprietors of Cardigan v. Paige, 6 N. H. 182.

5 Lessee of Massie's Heirs v. Long, 2 Hamm. 287; s. c. 1-4 Ohio, Cond. 364. (b) People v. San Francisco Savings Union, 31 Cal. 132.

6 Minor v. McL. 4 McL. 138; Coit v. Wells, 2 Vt. 318; Kellogg v. McLaughlin, 8 Ohio, 114.

(c) The treasurer's sale-book is evidence to prove the redemption of unseated land sold for taxes. Huzzard v. Trego, 35 Penn. St. 9. See Byington v. Buckwalter, 7 Clarke (Iowa), 512.

following facts: 1. That the person who made it had official authority to do so. (a) 2. That the book or document comes from the proper depository; and, 3. Proof of the identity of the book or document. It has been repeatedly held by the courts, that a mere certificate of the officer who conducted the proceedings, or in whose custody the documents connected with them are lodged for safe-keeping, stating in general terms that the proceedings were regular, or that they were conducted in conformity with the requisitions of the law, is not competent evidence to prove the performance of any prerequisite. It is the duty of the officer to make a transcript of the entire proceedings, so that the court can determine, upon inspection, whether the law has been complied with or not. The officer has no power to decide upon the legality of the proceeding, nor certify to his legal conclusions. Thus, the recital of “due notice" in the record of a special and summary proceeding, was held insufficient to prove notice to the party in interest; the record ought to have set out the notice at length, that the court might judge of its legality.2 (b) So where a stranger certified and swore that he posted the notice of a tax sale "eight weeks," without stating when he first posted it, the court held it insufficient, saying, "We cannot know how he computes time in such a case. The affidavit should state the day when the advertisement was put up, and then we can see whether it was put up in due season." And in Dunn v. Games, where the question as to the validity of the listing arose, the only evidence of it was the certificate of the auditor, that the land in question was "regularly entered on the duplicate for tax

(a) A treasurer is not an assessing officer, and his books are no evidence as to assessments; and where the book itself leaves it doubtful whether it is an assessment-book, resort may be had to extrinsic evidence. McReynolds v. Longerberger, 57 Penn. 13.

1 Dikeman v. Parrish, 6 Barr, 210; Doe ex dem. Kelley v. Craig, 5 Ired. 129.

2 Rex v. Croke, 1 Cowp. 26; Gilbert v. Columbia Turnpike Co., 3 Johns. Ca. 107.

(b) The recital in a tax warrant that assessment was made is not competent evidence, the assessment itself must be produced. Hopper v. Malleson's Exors, 1 N. J. R. (C. E. Green), 382.

8 Nelson v. Pierce, 6 N. H. 194.

4 1 McL. 319.