Roe v. Doe ex dem. Williams

Benning, J. By the Court. delivering the opinion. Was the judgment overruling the motion for a new trial right ? This is the only question. Certainly the tenant was not entitled to use the bond, and its transfers, as color of title, without proof of their execution. There can surely be no doubt of this. When a bond, or the transfer of one, is the foundation of a suit, the bond or transfer need not be proved, until denied on oath. In other cases, it must be proved in the first instance. [1.] There is nothing, then, in the first ground of the motion for a new trial. The second ground was, “ that' the plaintiff proved a copy of the deed, from Booth to Pace, by interrogatories, when said plaintiff had, in Court, an established copy of said lost deed, at the time of the trial, which was unknown to the defendant.” Are there any degrees in secondary evidence? I think not. Doe d. Gilbert vs. Ross, 7 Mees and W. 104. But it is not even suggested here, that there was any difference between the two copies. [2.] Obviously, there can be nothing in this ground. [346] The defendant was living on the lot, and had fifteeen or twenty acres of it enclosed. It was open to the jury to infer from this, that the defendant claimed the whole lot. And if a person is in possession of a part of a lot by enclosures, &c., and claims the whole of it, he cannot complain, should the verdict, in an ejectment for the lot, be against him for the whole: If, in such case, he is in possession of the whole, the verdict is right; if he is not, the verdict deprives him of nothing — injures him in no way. [3.] We think, then, that there was nothing in the third ground. We do not see in what respect the verdict was contrary to the evidence, or contrary to law. Hence, we cannot admit the validity of the remaining two grounds, the fourth and fifth. We affirm the judgment of the Court-below. Judgment affirmed.