
    *William Vance v. J. J. Reardon.
    To make out a title to personal property, under a sheriff's sale, the production of the execution, under which the property was sold, is indispensable.
    Under the Act of 1721, authorizing attested copies of all records certified by the clerks of the Court, to be given in evidence, it will not be sufficient to produce extracts ; the whole record must be given.
    Tried before Mr. Justice Oolcock, Charleston, May Term, 1819.
    This was an action of trover, to recover the value of a negro slave, J oe, alleged tó be the property of the plaintiff, and to have been converted by the defendant to his own use, in which the plaintiff had a verdict for the value of the negro, &c.
    The property in Joe was originally in William Harville, and both parties claimed under him; the plaintiff under a sheriff’s sale, alleged to have been made by virtue of an execution founded on a judgment obtained in the Court of Common Pleas, at Orangeburgh, in October Term, 1806, at the suit of Robert Tutte v. Harville, produced a paper purporting to be an exemplification of the proceedings, certified by the clerk. It contained a literal copy of the process, (being within the summary jurisdiction,) the judgment and the first execution. This execution was for $95, including debt, interest, and costs, and was entered in the sheriff’s office the 5th November, 1806. It did not appear that there was any formal return on this execution, but an entry that the second execution was signed March Term, 1807, and upon inspection, the following indorsement was also found : “December 30th, 1806, Received $40. January, 1807, Received $70.” This fact was not stated in the brief, nor was it noticed in the argument, and it is not known whether it was susceptible of explanation- or not. Instead of a literal copy of the second execution, the clerk furnished only an abstract, containing the names of the parties, the amount of debt, inte-*(>001 rest> and c°Ms> with a memorandum of an entry in the ^'sheriff’s office, ° J 2d July, 1808; and a return of nulla bona, without date; and also, that a third execution was signed, 19th March, 1808. There was also a similar abstract of a third execution, entered in the sheriff’s office, 19th March, 1808, on which the following return was stated to have been made, “levied on a negro man, named J oe, sold the same on the 4th April, 1808, purchased by William Vance, for $25110.” The plaintiff also gave in evidence a receipt for the purchase money from the sheriff, and a similar exemplification of another judgment against Harville, at the suit of the same plaintiff, obtained in the same Court, at the same term, for $36 68. An original Alias and Pluries, Fi. Fa., were found, that, like the former, contained a copy of the process, judgment, and original execution, and only an abstract of the Alias and Pluries, Fi. Fa., in the manner before mentioned, but it did not appear that any levy had been made on any of these. The certificate of the clerk to these exemplifications were in these words: “I, Samuel P. Jones, Clerk of the Court of Common Pleas, for the district of Orangeburgh, do hereby certify, that the two sheets of paper ' hereunto annexed, do contain a true copy (or extract,) of the proceedings in a certain cause, wherein Robert Tutleis plaintiff, and William Harville is defendant,” &c. The plaintiff also proved a conversion by the defendant.
    Upon closing his evidence a motion was made for a nonsuit by the defendant, on the ground, that the exemplification was only legal evidence so far as it professed to give a copy of the proceedings, and there being only an abstract of the execution, under which the sale, if any, was made, the plaintiff had failed in the proof of property.
    This motion was overruled, and the defendant proved, that the negro Joe, had been delivered by Harville to his wife, (late Mrs. Hamilton,) in January, 1807, before their intermarriage, and produced a bill of sale from him to her, *3011 the April following, reciting that the sale had been made in Jan-- uary, and ^acknowledging the receipt of $350, as a full consideration.
    
      On the part of the plaintiff, it was alleged, and evidence was given to show that this sale was intended to defraud the creditors of Harville, and indeed, that Joe was only put in the possession of Mrs. Hamilton, to keep him out of the way of the sheriff. It also appeared that he had been in her possession, and the defendant’s, after their intermarriage, for some time, and that the plaintiff obtained possession without their consent, for the purpose of having these executions levied on him, as he was interested to see them satisfied, having been the bail of Harville in those cases, and some time after the defendant regained the possession without plainliff’s consent.
    The defendant moved for a new trial on the following grounds :
    1. Because the Court below ought to have ordered a nonsuit on the grounds taken there.
    2. Because the Court erred in admitting the exemplification in the form presented as evidence of the second and third executions.
    3. Because the verdict was, in other respects, contrary to law.
    
      
      
         Ante, 68.
    
   The opinion of the Court was delivered by

Johnson, J.

That a plaintiff must recover upon the strength of his own title, and not the weakness of his adversary’s, is a rule which, I believe, admits of no exception, and it is, I think, equally clear, that the naked possession of a personal chattel is prima facie evidence of property, and good against all the world, except the rightful owner. Phillips, 118-19.

The defendant’s wife, and after their marriage, the defendant himself, had the possession of Joe, with the consent, and under a bill of sale from Harville, who was the acknowledged owner, and whether fraudulent or not, is not a matter of any consequence as regards the fact of possession. It gave him the right to *hold until some one claiming by a title r*ono paramount should claim the possession, and consequently a right *- t-o retake if he was divested by any other means. And this leads to an inquiry as to the legality of the title set up by the plaintiff on the trial below.

In considering this question, I will begin by noticing the sheriff’s receipt for the money bid by the plaintiff for the negro, Joe, at a supposed sale. This, it is insisted, is prima facie evidence of the authority of the sheriff to sell, and put the opposite party to the proof of the negative. This question is, I think, conclusively settled by this Court, in the case of Barkley v. Scrivin, 1 Nott & McCord, 408, in which it was determined, that although it was not necessary to produce all the executions intervening between the judgment and that under which the sale was made, the latter was indispensable, as the authority under which the sheriff acted, and that the judgment on which it was founded, ought also to be introduced. It is true, that in that case, lands were the subject of litigation, but I am unable to see any reason why the rule will not equally apply to personal estate. If it were otherwise, the whole property of the community would be at the mercy of a sheriff. This process runs through the whole State, and to compel a party to search and procure certificates from the office of the clerk of every district in the State, would be unreasonable; whereas, if he w'ho sets it up, is required to produce it, the execution under which he purchases points directly to the office where it is to be found. This argument must therefore fail.

The next question arises out of the admissibility of the exemplifications so far as they profess only to give extracts of the proceedings in relation to the second and third executions, under the latter of which the levy and sale is alleged to have been made. This inquiry is wholly superseded, if the memorandum endorsed on the first execution of the receipt of two sums amounting to $110, when only $95 was due, is not susceptible of ^RflRl explanati°n j for, if that is to be ^regarded as evidence, the exe-0 cution was more than satisfied, but as it has not been noticed in the argument, it may become necessary to consider the ground taken.

At common law, the copy of a paper writing could not be given ill evidence when the original was in existence, and in the power of the party; but the Act of the Legislature of 1121, P. L. Ill, 1 Brev. Dig. 315, authorizes attested copies of all records, certified by the clerks of the Courts, to be given in evidence. When an Act of the Legislature is in abrogation of the common law, it is to be strictly construed, and even without the aid of this rule, it appears to me obvious that the Legislature never intended by the term copies, to make extracts evidence; the terms themselves are of different import, and besides the mischiefs of confounding them appear to me too manifest to need exposure. A party is not presumed-nor is he bound to ¡know what evidence his adversary will adduce against him; and if he be permitted to extract from a record only so much as he may deem necessary to his own side of the question, and to give it in as evidence, he will always take care to leave out that which makes against him. By the same rule, the opposite party would have the same right to 'extract so much as was subservient to his side of the question, which, from the specimen of extracting furnished by this case, would produce inexplicable difficulties. Thus, in this case, we find that on the first fi.fa., when only $95 was due, $110 had been paid, and yet an alias issued, and also a pluries ; and, as if to force conviction upon me of the necessity of a literal copy, the extract represents the pluries to have been entered in the sheriff's office on the 19th March, 1808, and the alias, which must necessarily precede it, as having been entered on the 2d July, 1808, nearly four months after.

But it has been argued, that these extracts were admissible as prima facie evidence of the existence of such judgments and executions. I confess I do not understand how this sort of evidence can apply to a *R(H1 case> w^en the court sees from the evidence produced, *that better -I and more ample proof of the fact does exist, and is in the power of the party, and appears to me to be at war with that universal rule, that the best evidence should always be adduced, and can only apply when there is no higher evidence.

I think, therefore, these abstracts were inadmissible, and if admitted, they proved nothing, and the motion ought to be granted.

Nott and HugéR, JJ., concurred.

Coioook, J.,

dissented :

This was an action of trover, to recover a negro. The plaintiff produced a bill of sale or receipt from Timothy Barton, Sheriff of Orange-burgh district, and also an exemplification (or that which was called and considered as such,) of a judgment and three executions, which had been lodged in the Sheriff’s office of Orang-eburgh district, at the suit of Robert Tutle v. William Harville ; and he proved that he had been three years in possession of this negro, by virtue of a sale,, which, as it was contended, appeared by these executions, and the testimony of Mr. -. Also, he proved that Harville had been in the possession some years anterior to his, (plaintiff’s possession,) and that he was then considered as his property, and an actual conversion by the defendant.

The defendant’s counsel moved for a nonsuit, on the grounds as stated in the notice given to me, and as argued on the trial before me 1. Because the plaintiff rested his claim entirely on the sale by the Sheriff of Orang-eburgh district, and the possession under it, and no execution was offered in evidence; and, 2. Because the exemplification, if admissible evidence, showed an irregularity in the proceedings which was explicitly animadverted upon and pointed out; which motion I overruled, And a motion is now made for a new trial, on the ground that a nonsuit should have been ordered, and for other grounds which it is not necessary to notice, becamse the motion is granted by my brethren on this ground alone, and *beeause, i-*o0k on the trial of the case, I was, on the other grounds stated, L inclined to think that a verdict ought to, and would, have been found for the defendant.

On the ground that a nonsuit should have been granted, I am constrained to differ from my brethren.

I lay it down as a position not to be controverted, that in an action of trover for the recovery of a negro, that the production of a bill of sale by the plaintiff to himself, stating a valuable consideration, and upon its face, fair and unexceptionable, with proof of its execution, and a conversion by defendant, is sufficient evidence, unless rebutted, to entitle him to a recovery; and in ninety-nine cases of one hundred, tried and determined in our Courts, it is all that is produced in the first instance by a plaintiff. If authority be necessary, I refer generally to 2 Sel. N. P. 1266, wherein it is expressly laid down, that an absolute or special property, with a right of possession, is sufficient to maintain this action ; that is, it is sufficient if not opposed; it is sufficient to put the defendant to the proof of a better title. Yet, further, the bare possession is sufficient. The finder of goods may maintain this action ; what would be his proof? The possession and a conversion by the defendant. Here was proof of a possession, and an actual taking of the negro and sale of him. by the defendant.

But if it were necessary, to the support of plaintiff’s case, that the exemplification should be considered as complete, I conceive, by a critical examination of it, it will be found to be so.

The clerk of the Court, the keeper of records, first sets forth the process, verbatim et literatim, then states all the matter contained therein ; thus entered: “February 21st, 1806. Tim Bakton, s. o. d. next the return of the sheriff, in his own words; next the proof of that return, before L. Lestarjette, the clerk of the district; next the decree of the Court for the amount of- the note and interest; then the usual endorsement of the time of issuing the execution, viz., 29th October, 1806 ; he then sets forth, verbatim et literatim, the judgment and execution which is according to the form of ^proceeding in our Courts, which is followed by these words: Indorsement on the execution, which is a detailed statement of the debt and costs, and the words, “ entered November 5, 1806. T. Barton, s. o. d.” Then he adds, without repeating the words of the execution, “2d execution, signed March term, 1801 endorsements on the 2d execution, which are, as on the first, a statement of debt, interest and costs, and “ entered July 2, 1808. T. BARTON, s. o. d. Nulla bona.” 3d execution, “signed March 19th, 1808. Nulla bona,” a statement, as before, of debt, interest and costs, “entered March, 1808. T. BARTON, s. o. d.,” and these words, “March 19th, 1808, levied on negro man, named Joe, sold the same on the 4th April, 1808, purchased by W. Yance, for $251 10. T. Babton, s. o. d.” Then followed the certificate of the clerk, Samuel P. Jones, in which he states that the paper contains a true copy or extract of the proceeding as appears by the records remaining in his office. Prom this it is apparent that the officer professes to set forth all that is within and without the papers in the case, except that he does not repeat the words of the second and third executions. And this I did consider, and do still consider, as wholly immaterial, for if it had been found, upon their being set forth, that there had been any error, it was amendable, and would be amended by the Court to perfect the sale; see the case of Toomer v. Purkey, (1 Con. Rep. 323), which is only a repetition of what has often been decided in our Courts. Now if it is immaterial whether the words were those which, according to the forms of our proceedings, ought to have been used, I am at a loss to conceive why they should have been put down, to the great trouble of the officer and expense of the party.

Again, is there any prescribed mode and form of exemplification ? I know of none. It is admitted that in exemplifications the whole is exemplified. But much depends on the purposes for which they are to bo used. It is said something is kept back. I ask, if the officer does not say what that is ? I think he does, as plainly as if he had said that I deem it ^unnecessary to repeat the body or formal part of the execution ; but I give you all the endorsements thereon, and these it is to be observed, cite the only important parts of the execution.

The case of Barkley v. Scriven is relied on as authority, to show that the execution must be produced to support a claim of personal property acquired by a sheriff’s sale. But that was an action to recover real estate, and the observation of the judge was only incidental, and not to the point before the Court, and therefore cannot be considered as authority.

It was further contended, that as the plaintiff iu this case had proved possession in Harville, it was incumbent on him to show that Harville had been dispossessed of the right of property. This is undoubtedly the case in actions for the recovery of real estate, which cannot pass but by deed, but cannot apply to the case of personal property, which may pass by delivery. The possession of Harville was not inconsistent with a subsequent legal possession in him ; it did not necessarily destroy his title; on the contrary, his subsequent possession furnished, as to a mere chattel, a presumption of a sale, which was to be left to the jury.

The second ground contains objections which apply more to force and effect, than to the competency of the evidence. If I thought the irregularities such as to affect the sale, and render it null and void, still I conceive it my duty to submit to the jury the question, whether that which was called irregularity, might not be a mere clerical mistake. And as it regards that which appears to be, in the opinion of the counsel, the greatest irregularity, I entertain no doubt myself that it is a mere clerical mistake ; that 1808 is written for 180T, by which it appears that the second execution issued after the third.

Simons, for the motion. Sunt, contra.

Bay, J., concurred with Colcock, J.

Post, 418, 566; 1 N. & MoC. 408. 
      
       7 Stat. 176, § 39; Post. 472; see 3 Stat. 179, 704; Trott’s Laws, 437, 450, 380; 1 MoM. 134.
     