Carwile v. House

COLLIER, C. J. 1. It has been held as often as the point has been made, that although the copy of a record is admissible ■evidence, yet the original may be used where the party produces it. We can very well conceive why the copies of records and other public documents should be adjudged competent, but no reason suggests itself, why, if the original be present, it should pot be equally satisfactory to establish the facts which it discloses. The argument of the counsel for the plaintiff in error would exclude the executions because they are records, and should not be removed from their proper depository. It may be true that the register of the court of chancery should not have allowed them to have been taken from his office; be this as it may, we have seen that their removal, though improperly permitted, cannot effect them as instruments of evidence. 2. The act of 1821, authorizes the title to lands to be tried by an action of trespass, “in which the plaintiff shall indorse on his writ and copy-writ, that the action is brought as well to try titles as to recover damages.” Here, the plaintiff has made the indorsement which the statute requires, and this according to the practice which has prevailed. ever since its enactment, has been regarded as sufficient, without indicating by the declaration that the plaintiff’s purpose is to recover the possession. Indeed, w'e think no other conclusion could have been attained; for the act itself declaring that the action of trespass shall be the proper remedy, it must have been intended that the pleadings should be-framed as at common law. That the defendant may be advised of the object proposed, the plaintiff informs him by the indorsement on 712 the writ, that the title is to be tried to the lands on Which the Wrongful entry is made. In such case, the' indorsement of the Writ will be looked to, to determine the character of the action, and thus show what is the matter in controversy. [Clay’s Dig. 820, § 43.] 3. We think the court erred in the charge to the jiWy, unless there were facts to warrant it, of which the record does not inform us. In Blackburn v. Baker, et al. [7 Porter’s Rep. 288,] We said, “that the occupancy of eighty acres of land cannot dfaw to its occupancy the adjoining eighty acres, though unoccupied, and a part of the same quarter section. Otherwise, we must suppose not only that an appropriation by metes and bounds, or an inclosure, was not necessary, but that he who acquires one Subdivision of land has also become the purchaser of another subdivision.” The bill of exceptions does not state that the defendant ever was in possession, either actually or by construction, of any “parcel or tract” of land, except that of which he had the pédis possessio. It does not appear that the defendant was a party to the execution, when his possession commenced, or what was its character, or whether any or what claim he set up to any part of the land. Under these circumstances, the presumption cannot be indulged, that because one occupied a forty or eighty acre tract, that his possession embraced other contiguous subdivisions. For the error of the circuit court in thus laying down the law, its judgment is reversed, and the cause remanded.