Ratteree v. Nelson

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The rule of Court requires that when a party wishes to introduce a copy deed in evidence, it shall be a sufficient foundation for the introduction of such secondary evidence, for the party to swear to his belief of the loss or destruction of the •original, and that it is not in his possession, power or custody. The plaintiff in error, we think, complied with the requirement of the rule; he swears to the making of the original deed; we understand him thereby to swear that it was executed. It is not expected that a party shall use strictly accurate professional language; the deed was proven to have been recorded; the assumption upon the face of the whole affidavit is that there was an original deed. He farther swears that according to his belief the original is lost or destroyed, and that it is not in his power, custody or control. It is objected that he does not swear that the original is not in his possession. The rale, it is true, uses the word possession ; a literal compliance as to that matter is not necessary; if he complies substantially it is enough. That he has done. He is clearly held to swear that it is not in his possession, when he swears that it is not in his custody or control. If it was in his possession, the party is peijured, because then it would have been in his custody and control; if in his possession, it would be in his power; He did swear, not in the language of the rule, but in its spirit and meaning, that the deed was not in his possession. We think the copy ought to have been admitted.

[2.] The presiding Judge instructed the Jury, “that the plaintiff had showed sufficient title to enable him to recover, prima facie, the premises in dispute, and that they must find for him unless the defendant showed a legal title.” It is objected that the Judge expressed an opinion to the Jury on the facts. He clearly did, when he said that the plaintiff had shown a sufficient title to recover, prima facie, the premises in dispute. If he meant such a title as the lawr would sustain, if the Jury found the facts as attempted to be proven, he did not say so. The Jury had good right to believe that he intended to say that a sufficient title was in fact proven. This was violative of the Act of the Legislature, and was error.

We find no fault with the rest of the charge. He did not intend to exclude from their consideration, the evidence of possession ; but we understand him to say, that if after considering his letter, the Jury believed still that defendant had proven possession for seven years, claiming the land as his own, they should then find for the defendant. Both the evidence of possession and the letter were, we think, submitted to the consideration ; of the Jury.

Let the judgment be reversed.