
    Jesse Turnipseed vs. John C. Hawkins.
    Phe testimony of one of the executors that lie had made diligen1 search, and had been unable to find a deed, is sufficient evidence of its loss, without examining the other executor, to admit in evidence, a copy, dated 1778, certified by the deputy register, and sworn to he a true copy by a witness who had compared the copy with the record, it being also supported by the testimony of the subscribing witness that some land had been conveyed by the grantor to the grantee. about the date of the deed, and he believed this to be a- copy of the deed.
    .in old survey, 32 years old, reciting that the survey had been made for the grantee, was admitted in evidence, and was the only act of ownership or possession proved.
    The surveyor who made the ancient survey was dead, but the plat was admitted upon the testimony of a surveyor who was familiar with his works, and who swore to the similarity ; though he did not know his hand-writing-.
    The subscribing witness swearing that he saw the testator sign, &c. and that he attested the will in his presence, “and that the other witnesses were also present, and subscribed their names in his presence and in presence of the testator,” is sufficient evidence that the testator executed the will in the presence of all the witnesses.
    The plaintiff'claimed under a deed from executors, authorized to sell the land at public auction; the deed is sufficient without shewing that the sale had been publicly made; for the court will presume that the executors liad done their duty, and had sold in pursuance of the will.
    
      Trespass to try titles, tried at Columbia, Spring Term, 1821, before Mr. Justice Gantt.
    
    ^ILíIIS action was brought to try titles to a tract of 1000 acres of land. The plaintiff produced a copy plat- and grant to William Currie, dated Oth june, 1775, with an affidavit of the loss of the original, under the act of the assembly. He then offered a copy oS' a conveyance from William Currie to John Hannahan, of the same land, dated 2d May, 1778, certified by the deputy register to be a true copy from the records in Charleston ¡ and produced a witness .who swore he had compared it with the recorded deed, and that it was a correct copy. The plaintiff then produced the examination of John Moncrieff'e, who appeared by the copy deed to have been one of the sub-acribing witnesses to it. Moncrieffe deposed that he knew Currie and Hannahan well, and that about the time the copy deed bore date, Curri'e had sold to Hannahan a tract of land in the upper country, near Spring-hill. That the deeds were executed in Charleston, and that he believed he was a subscribing witness, and that the paper presented to him might be a copy of the original deed ; that he could not swear positively that George Lord and Charles Johnston were subscribing witnesses with himself as the copy deed purported ; but he thought it probable, from the fact, that Charles Johnston was the intimate friend of Currie, and attorney for hint after be went to Europe in 1778.— That Johnston was dead, and he believed Lord was also. That he could not have remembered clearly the signing this deed as a subscribing witness, without some circumstances' to remind him of it; but independent of seeing the copy deed, he remembered that Currie sold lands to Han-nahan in the upper country about 1778.
    The plaintiff then produced the examination of William Mcggett, one of the executors of Hannahan, to'whom with his co-executors a power was given by t|ie will to sell the testator’s lands. Meggett deposed “that he had made diligent search for the above mentioned deed from Chirria 
      to Hannahan, but had never been able to find it; be believed it to be lost.
    The plaintiff also proved that Robertson, to whom the executors conveyed the lapd, had made enquiries about this deed, and had always been anxious to procure it.— The plaintiff then offered in evidence an old survey of this land, purporting to have been made on the 15th December, 1788, for Hannahan by John Belton, a deputy surveyor. Belton was proved to be dead, but Mr. Alston, a surveyor, deposed that the plat resembled' Belton's surveys, which lie had often seen, though he could not swear to his handwriting. ' Exception was taken to the admissibility of this paper, but was overruled by the court.
    The plaintiff then offered the copy deed from Currie to Hannahan in evidence, but the defendant’s counsel objected that sufficient evidence had not been offered of the loss of the' original", that the other executors of Hannahan ought to have been examined j that the deed was .dated in 1778, and did not appear to have been recorded until 1798, and was probably still in the register’s office, where many persons leave their deeds either frow carelessness or for safe-keeping, and that the register’s office ought to have been searched ; especially as that was the last place to .which the deed was traced; that it was of dangerous consequence to admit copy deeds upon slight proof of the loss of the original, as it would enable and induce persons to conceal their deeds, and offer alleged copies when there was any thing upon the face of the original deeds ■which might restrict or in any manner affect their claims. And that in this case the plaintiff ought to be held to the most strict proof of the execution and loss of the deed, as neither he nor any of those under whom he claimed had ever been in possession of the land. (3 Johns. Rep. 300. 12! Johns. Í98. Phil. JSv¿ 348. 2 Cons. Rep. 80, Howell vs. House.)
    
    To this the plaintiff’s counsel replied that the executor of Hannahan had proved that he had made diligent search, and that he could not find the deed, and that he believed it 
      £o be lost, That the Court wpuld presume that he hac|. inquired of the other executors, and had searched the register’s office, and in short, had done every thing which would authorize him to say that he had made diligent search. That this rendered it unnecessary to examine the other executors, or the register’s office. That it was clear Robertson had not the deed, nor had the executors, or they would have delivered it to Robertson, when they sold to him. That it could not be required of the plaintiff to examine the register’s office, because it was to be presumed that when deeds were recorded, they would be taken away by the owners. 'That they were lodged in the office for a special purpose, and when that purpose was accomplished,, it was to be presumed they were taken away; and that it would not do to bottom a general presumption upon the supposed carelessness of a few individuals. The plaintiff’s counsel relied also upon the great lapse of time, 43 years since the deed was executed, and 23 years since it was recorded, the death of Hannahan in 1804, and the minority-of his children; that the existence and execution of the deed were fully proved by Moncriejfe, and the copy from the records ; and that the court would presume a deed after such a lapse of time, especially as the survey by Belton for Hannahan in 1788, proved an act of ownership exercised soon after the date of the deed; fS Johnson’s Reports, 300, 304, 306,) and on the act, (P. L. 133,) by which it is enacted, “ that the records of all grants in the office of the said auditor-general, or his deputy, and the records of all grants and deeds duly proved before a justice of the peace according to the usua.l method, and recorded or to be recprded in the register’s office of this province, aqd also the attested copies thereof, shall be deemed to beasvgood evidence in the law, and of the same force and effect as the original would have been if produced, in all courts of law and equity.”
    The copy deed was then admitted by the court.
    The plaintiff then produced the original will of Hanna-kan¡ and read the examination of Donald McLeod.', who proved “ that he was present and saw John Hannahan sign, seal, publish, and declare the same as his last will and testament.”' And in answer to another interrogatory said, “ that he subscribed the will as a witness in the presence of the testator, and that the other witnesses M. Mackey and Timothy Kelly, were also present and subscribed their names in presence of the testator as witnesses, and. also in the presence of this deponent.”
    The defendant’s counsel objected to the admissibility of the will, because it did not appear from the evidence that the testator signed the will in the presence of Mackey and Kelly, or that he ever acknowledged his signature to them. But it v/as answered by the plaintiff’s counsel that the witness swore he was present and saw Hannahan execute his will, and that he subscribed the will as a witness in lian-nahan’s presence, and that Mackey and Kelly were also present, &.c. which last words referred as well to the execution of the will by Hannahan as to McLeod's attestation.
    The objection was overruled by the court,
    The will gave the executors power to sell.
    And the plaintiff next produced and proved the"execution of a deed from the executors to William Robertson, dated 15th March, 1817, and a deed from Robertson to the plaintiff, dated March, 1818. The plaintiff objected to the executor’s deed, because it did not appear that they had sold the land at public auction as directed by the will, but the court answered that it would presume that the executors had done their duty.
    Tire location and trespass were proved, and the plaintiff dosed. ,
    The defendants counsel moved for a non-suit upon the grounds that the loss of the deed from Currie to Hanna-han was not sufficiently proved to authorize the admission of a copy in evidence.
    And 2dly. That the execution of the will of Hannahan in the presence of three witnesses, was not proved.
    The motion was refused.
    The defendant then offered an evidence a grant to Win* 
      
      Busby, dated 1st February, 1S08, which included the/ecus, and a deed from Busby to John Lever, dated 4th May, 181a, and Lever to defendant, in November, 1816. He also prov en a possession in Busby more than 5 years.
    The plaintiff replied by proof that Ilannahan died iu 1804, a few weeks after he made his will, and that some of his chilcren were yet minors.
    The court charged in favor o.f the plaintiff, grid the jury found accordingly.
    The present motion was,
    1st. Fora non-suit, on the ground that there was not sufficient legal evidence of the existence and loos of the lease and release from Currie to Ilannahan to warrant the presiding Judge in permitting the contents or copies thereof to be given in evidence to the jury ; and for a new trial:
    1st. Because the presiding Judge permitted copies of the lease and release from Currie to Ilannahan, not duly ■certified or attested, to be given in evidence to the jury, without sufficient legal proof of the execution and loss of the same.
    2d. Because the presiding Judge permitted Belton's survey' to be given in evidence to the jury, without any proof of its execution or even antiquity, although it was admitted that neither Currie nor any one claiming under him had ever been in possession of the land in dispute.
    3d. Because the charge of the presiding judge, and the finding of the jury, that there was a lease and release from Currie to Ilannahan, was contrary to law and without evidence.
    4th. Because the charge of the presiding Judge, and the finding of the jury, that Ilannahan signed his will in the presence of three witnesses, or acknowledged his signature to them, was without any' evidence.
   Mr. Justice Gantt

delivered the opinion of the court.

From the view which has been taken of this case by the court, it is deemed unnecessary to animadvert upon the first ground taken in the brief, as the court are of opinion that the evidence objected to and relied upon as a ground of non-suit, tvas properly and legally permitted to go to the jury.

On the first ground for a new trial, I think myself that under the act of assembly, making attested copies of deeds as good evidence as the original would have been if produced, it is questionable whether there exists any legal necessity of accounting for the loss oí the original, to sanction the admissibility of an attested copy. The act is silent as respects the loss of such original deed, and expressly declares that an attested copy shall.be as good evidence as the original. But the evidence of the original deed being lost in this case, was entirely satisfactory. It was positively sworn by one of the executors of Hannahan that he had used due diligence to obtain it, and he believed that it was lost. It is worthy of observation too, that no one claiming under Currie opposed the legality of the plaintiff’s title, which in every point of view, appears to have been duly and fairly obtained.

The testimony of Moncrieffe leaves no doubt as to the feet of sale made of this land by Currie to Hannahan, anc. after so great a lapse of time, the cautious manner in which this witness deposes to facts of such long standing, with his belief that he did attest the execution of the deed, and proved it, and this evidence corroborated by the attested copy itself, wherein his name appears as a witness, See. — - these concurring evidences of the loss and execution of the original, were entirely sufficient to justify the attested copy’s going to the jury, as the best evidence which the case afforded, independent of the act of assembly.

On the 2d ground I would' remark that although Mr. Alston, the surveyor, had never seen Belton write, yet he had often seen plats which he had made out, and the one introduced as evidence, purporting to have been made for Hannahan, resembled those that he had seen. Now it is very clear that one person may become acquainted with the hand'writing of another, so as to be entitled to give ■"vidertce in relation to it, although he may never have seeq die party write. The clerk of a merchant may, after a correspondence between his principal and another, in relation to their mercantile transactions, kept up for such a length of time, and having access to the same, the hanii writing of the other had become familiar, he would be fcompetent to give evidence of the hand writing, although lie had never seen the correspondent; and I think the principle applies with equal force here. Being a surveyor himself, Mr. Alston had seen many old surveys of Bel-ton’s, he had become familiar with his hand writing, and might give evidence of the same under the. circumstances of this case in a court of justice. The two last grounds-taken for a new trial, have, in the lengthy report of this case, and the comments already made, been so fully taken notice of, that I deem it unnecessary to enlarge upon what has been said. I will only add that from an attentive review of the evidence which was permitted to go to the jury on the trial of this case, I am clearly of opinion that the evidence was proper and legal, and that the defendant is not entitled to a new trial; and this is the opinion of the court.

Gregg, for the motion.

De SaiiSfMre, contra.

'' Justices Colcock, Johnson, linger and Richardson, concurred.  