
    George Bartholomew v. Edward Edwards.
    The existence, identity, and loss of a deed, are questions addressed to the Court, and are first to he decided by it, and afterwards the evidence of its contents goes to the jury; and if the evidence is irregularly introduced on these points, and is left in terms of too general import in the charge by the Court to the jury, the Court will, on motion, set aside the verdict and grant a new trial.
    Action of trespass quare elausem fregit, by George Bartholomew v. Edward Edwards; trial and verdict for the plaintiff*, and motion to set it aside and for a new trial; vide p. 17. The argument was now upon the motion.
    
      J. A. Bayard, for the defendant:
    In the first place, the Court misdirected the jury in their charge as to the effect of the marking and bounding the lands of the defendant, under the commission of the Court issued for that purpose; because the .adjudication under that commission had the same effect as an adjudication in a suit at law on the boundary in dispute, or an agreement in writing between the parties fixing the boundary. In the next place, the Court ought to have charged that the evidence of William B. and George McCrone, who were examined as witnesses on behalf of the plaintiff to that point, was incompetent, on the facts proved, to establish the contents of the deed alleged to be lost, from a person named Grantham to a person named Moore; because they could not state with certainty the names in full, or who were the parties to the deed, or positively that it was signed as a deed by any one, or what were the premises embraced in it; for all they could say was that it was a deed for land covered by water. It was also proved that the lost deed was at one time in the possession of Judge Booth, and there was no proof that search had been made among Ms papers for it. Uo evidence of its contents, therefore, as a lost deed was admissible in evidence on such proof as this, of its existence and validity as a deed at one time having relation to the rights of the parties and the subject-matter in controversy between them. Before evidence can be admitted as tp the contents of a lost deed, its existence as a good and valid deed before its loss, the parties to it, and its formal execution as such, must be clearly proved, and then the contents must be shown with proper certainty, or it would open a wide door to fraud and knavery, or at all events expose the titles of parties, which the law requires should be evidenced and fortified by writing under seal in such cases, to the danger of being invalidated by the loose recollections of a treacherous, infirm, or inaccurate memory. The Court also erred " on this point, in leaving it to the jury to say whether the existence of the alleged deed,-as a deed, prior to its loss, had been sufficiently proved, and if so, then to decide the question of its contents from the testimony before them on that point; for the preliminary question was a matter for the Court and not for the jury to decide, as the formal execution, and existence, and loss of the deed, are preliminary questions solely for the decision of the Court; and when satisfactorily established by proof addressed to their judgment alone, the evidence as to its contents then goes to the jury for their consideration and determination. An-d in the next and last place, the Court omitted to instruct and charge the jury, as they should have done under the facts proved in the case, that where a party claims a possessory title to land, he can claim no more than he has in his exclusive possession; and where he claims by possession the title to land lying outside of the lines of a written grant to him, the rule is the same; and he must prove that he has had the exclusive possession of the land so claimed for a period of twenty consecutive years, in order to establish his title to it.
    Rodney, for the defendant:
    As to the effect of marking and bounding land, the statute expressly exempts the rights of parties in possession at the time of the execution of the commission, because it is an ex parte proceeding; and is not even prima fade evidence of possession up to the boundary. But where the boundary is established by agreement between the parties the case is different, and they may well be concluded by it. In relation to the contents of the lost deed from Grantham to Moore, Mr. Rogers’s testimony was not positive that he had given it to Judge Booth; but he merely suggested that he might possibly have handed it over with other papers to him, on his removal from Hew Castle. The law on this subject is this: the evidence of the execution and loss of the deed is addressed to the Court; the evidence of its contents, when that is established, is for the jury. 16 Johns. 193. The proper course, too, is for the party to prove by his oath that he had a deed from such a person to such a person, and then prove its loss to the Court in the usual method; and this being done, afterwards to call his witnesses to prove its contents to the jury. As to the testimony of the Messrs. McCrone, they were not brought here to prove the loss of the deed to the Court, but the contents of it to the jury, and that having been done, its contents were matters exclusively for the jury to determine; and the Court will not set aside the verdict, even if they differ with the jury as to the effect and sufficiency of the evidence. 1 Stark. Ev. 341; 1 Atk. Rep. 246. In regard to the question as to the possession of the locus in quo, there was a good deal and some contrariety of proof adduced on both sides, and it was) therefore, a matter for the jury to decide, and which the Court very properly left to their decision.
    
      J. A. Bayard:
    
    The marking and bounding of the land after seven years was prima facie evidence of title- to the land up to the boundary located under the commission; but the Court thought and charged otherwise, and in this he contended the Court had erred. As to the deed said to have been lost, his objection was, that the evidence to the Court of its execution and existence, as a once valid and subsisting deed, was not sufficient to let in the evidence either of its loss or of its contents.
   By the Court:

We have taken time to consider of this matter, and upon a review of our notes, and from our recollection of the testimony in the case, we do not think that there was, in the first place, sufficient proof adduced of the loss of the deed in question and of the search for, it (Judge Booth’s papers not having been examined for it) to warrant the admission of the evidence of its contents, the law as to which has been correctly stated in the argument on both sides. The previous existence and subsequent loss of the deed are first to be proved to the satisfaction of the Court; and afterwards the evidence of its contents is addressed to the jury; and to do this, the existence and identification of the deed as a deed, and the parties to it, must be sufficiently proved to the Court, before the secondary evidence as to its contents can be allowed to go to the jury. And in the next place, the evidence on this point, owing to the manner in which the trial was conducted, and as much by the inadvertence of the counsel, as by the acquiescence of the Court, was irregularly introduced on the trial, and left in terms of too general import by the Court to the jury, considering the importance of the deed alleged to be lost in the case, and the loose nature of the proof in regard to it. The motion must, therefore, be granted, the verdict for the plaintiff must be set aside, and a new trial ordered; but we take occasion at the same time, with this exception, to reaffirm the points ruled, and the law as stated in the charge to the jury on the trial in all other respects.

The new trial afterwards proceeded; the evidence of the contents of the deed in question was excluded by the Court, for the want of sufficient proof as to its existence and identity and the parties to the deed; and the defendant-had a verdict.  