Doe ex dem. Davenport v. Roe

By the Court. McDonald J. delivering the opinion. [1.] The first assignment of error is on the decision of the Court allowing the defendant to withdraw that part of B. Lockhart’s evidence which related to the Sheriff’s sale at Tazewell, and the sayings of Sears as to the destruction of the deed from the Sheriff. The part of the evidence withdrawn was not material to the issue to be tried, or, if at all material, it was favorable to the parly making the motion, and could not possibly prejudice the plaintiff The deed was a deed from the Sheriff to Sears, but the evidence did not disclose the name of the defendant whose property it conveyed. The evidence that the deed was burnt, was not relevant to the issue, and was only valuable as proof to the Court on a motion to introduce secondary evidence. The Court violated no rule of law in allowing irrelevant evidence to be withdrawn from the jury. [2.] After the evidence was withdrawn by the defendant, the plaintiff offered to re-introduce it, for the purpose ex [72] plained in the Reporter’s statement of the case. If it was offered as evidence to be considered by the jury, it was inadmissible ; but we see no objection to it as evidence to the Court to lay the foundation of introducing secondary testimony. The deféndant claimed title through Sears, and Sears was dead. But the defendant was not injured by this ruling of the Court. The evidence had been before the Court and jury, and withdrawn from the jury, but the Court, perhaps, felt authorized to hold that the original deed had been accounted for sufficiently to authorize the admission of evidence of its contents; for that evidence was given by the witness, Wilchar, who was the officer who sold the land, and it was objected to only because the tax execution had not been produced. Was the evidence properly rejected on that account? Had the Sheriff’s deed been in Court, it could not have been introduced without the production of the tax execution as the authority to the Sheriff to sell, or proof of its contents, if the absence of the original execution had been accounted for. [3.] The plaintiff attempted to account for the original execution, but we think with the Court below, that he failed to do it. His counsel had searched the offices and records of the Clerks of the Superior and Inferior Courts of Marion county for the execution and deed, and could not find them. The court-house and records had been burnt. The witness, Wilchar, testified that he made a proper return of the fi. fa., and he thinks delivered it to the Solicitor General. The execution was issued from the office of the Comptroller General, and ought to have been returned there. The Solicitor General must be presumed to have done his duty and delivered the execution to the proper-officer, or deposited it in his office. That officer was not examined. Hence, we sustain the judgment of the Court below. Judgment affirmed.