
    *Maxwell v. Light.
    [Saturday, November 4th, 1797.]
    Deed Certified Copy — Evidence.--A certified copy of a deed not duly recorded, is not admissible evidence of the contents of tie original.
    Same — Same—Same.—The refusal of a party to produce the original, which is in his possession, on due notice, will authorize the admission of a copy in evidence, on proof of its being a true copy.
    Replevin — Evidence after Verdict — Excessive Distress. —■The Court may hear evidence after verdict in case of a replevin, in order to shew that the landlord distrained for more rent than was due; on shewing which, the judgment will be for the rent merely, and not the double value.
    In replevin by Maxwell for taking his goods and chattels, Light avowed the taking for rent arrear due by indenture on a demise for ten years. The plaintiff replied: 1. That the avowant did not demise, and issue thereon. 2. Lntry by the defendant into parcel and expulsion of the plaintiff. 3. No rent arrear. 4. That defendant did not build certain walls on the premises. 5. That defendant did not permit the plaintiff' to clear and cultivate twenty acres of land in addition to the cleared lands. 6. That defendant entered and expelled the plaintiff from another parcel of the demised premises.
    Rejoinder to the 2d plea: That he entered by consent of the plaintiff, and issue. Demurrer to 4th, and 5th pleas. Rejoinder to the 6th plea: That the defendant did not enter and expel the plaintiff, and issue thereon. After which, follows this entry; “and the said Peter Light by his attorney, demurs generally to the first and third plea aforesaid, of the said James Maxwell above pleaded. Which demurrer, the said James Maxwell by his attorney joins.”
    Upon the trial of the issues, the plaintiff filed a bill of exceptions to the Court’s opinion, which stated that, the avowant offered a copy of an indenture of lease in evidence, the only probat of which was in these words: “At a Court continued and held for Berkeley County, the 18th day of May, 1791. This indenture was proved by thq,oath of Moses Hunter a witness thereto, and ordered to be recorded.
    Teste, Moses Hunter.”
    To which the plaintiff objected, because, it was only a copy, and not so proved and authenticated as to make it legal evidence. That the avowant then proved, that the plaintiff had acknowledged, that a 118 *deed which he said was the original lease, was in the possession of the plaintiff since the date of the said certificate, who did not produce it, though called on to do so, at the trial of the cause. That the plaintiff proved, that Moses Hunter, one of the subscribing witnesses to the said deed, is alive, and within the jurisdiction of the Court. That the Court permitted the deed to go in evidence, without any proof from the subscribing witnesses, that the original had been executed, or that the said copy was a true copy of the original. Another bill of exceptions stated, that the Court directed the jury, that the said copy of the deed was sufficient to prove the demise. A third bill of exceptions, to same effect as the last.
    Verdict for the avowant in these words: “We of the jury, find for the avowant, and also find two hundred and twenty-five pounds Pennsylvania currency, of the value of one hundred and eighty pounds current money of Virginia, to be rent in arrear and due from the plaintiff to the avowant.”
    After the verdict, the plaintiff filed a fourth bill of exceptions, which stated, that the landlord moved the Court for judgment for double the rent found by the jury to be in arrear, to which the plaintiff objected, and offered to provecto the Court, that the avowant had distrained for more rent than the jury had found due and arrear: which evidence, the Court refused to hear, after the verdict received and the jury discharged, because ex parte, irregular and without notice.
    The Court over-ruled the demurrers, and gave judgment for double the rent found by the jury to be in. arrear, and the costs. From which judgment, Maxwell appealed to this Court.
    Washington, for the appellant.
    The copy of the deed ought not to have been permitted to go in evidence to the jury. There are two ways of proving deeds, one by witnesses, and the other by attested copies from the records, where they have been proved as the law directs. The 119 last is as *good evidence, as the original itself would be; but, if the deed tie not proved and recorded as the law directs, then a copy is not good evidence. In the present case, the deed was proved by one witness only; and, although it is recorded, yet that gives no degree of evidence to it; because, it was not done as the law directs. It is, therefore, no more than the Clerk’s certificate, which is not evidence in any case; for, it is not on oath, and is of no more weight than the certificate of any other person. Therefore, the copy was not evidence, without proof that it was a true copy of the original, unless Maxwell’s acknowledgment, that he had possession of the original, altered the case. But, it did not; for, to have that effect, it should have been proved that it was in his possession at the time of the trial, and not that it had been in his possession, at some time before. Because, he had once had it in possession, it did not follow that he was always to have it. Besides, notice should have been given him to produce it, or he was not bound to carry it to Court, or to bring it forward, when called for by the other party. Gilb. Law. Ev. 95, 97. [Roe, on dem. of Haldane et al. v. Harvey,] 4 Burr. 2487. There is a difference between proving the contents of a deed, and proving a copy of a deed. In the last case, the witness must swear that it is a copy. Gilb. Law. Ev. 96. So, that although it should be admitted in any case, that a copy is evidence, still the party who would offer it, must prove, that what he produces is a copy of the original.
    The Court erred in another instance. For, it appears by the bill of exceptions, that they affirmed to the jury, that the evidence offered was sufficient to maintain the issue. Whereas, .they should merely have decided on the competency, and left the sufficiency to the jury; and the decisions of this Court have been so.
    The Court were clearly wrong also, in refusing to hear the evidence, after the verdict, in order to prove that the distress was for more rent in arrear than the jury by their verdict had found to be due.
    ^Williams, contra.
    Three witnesses are not necessary in order to record a deed; for, one is enough to admit it to record, though three are requisite in order to give it effect against creditors. The words of the act of Assembly warrant this distinction, as it does not prohibit probat by one; but only speaks of its being void against creditors and purchasers, unless proved by three, leaving the grantee to prove it as he pleases, between him and the grantor. The County Court, when the deed was recorded, had a right to receive the oath of the witness; and, therefore, the certificate of that probat was sufficient proof of the execution of the deed. But, the deed has been recorded, and that record is effectual till reversed, so that this Court will not examine into it. The copy, therefore, was good evidence, especially as Maxwell, who accepted, is proved to have acknowledged his having had possession, and does not state any subsequent dispossession.
    It was Maxwell who called for the opinion of the Court, and, therefore, he should not be allowed to except to it.
    As to the other point, the quantum due was involved in the issues; and the jury having decided it, no new evidence was admissible after the verdict, as to a point which was proper for their investigation.
    Washington. The copy was inadmissible. None but the copy of a deed recorded, as the law allows, could be admitted. For, if not recorded as the law directs, it is the same as if it was not recorded at all. In England, none but deeds of bargain and sale are enrolled, and a copy of the enrollment is evidence. But, suppose, a feoffment were enrolled, would that be evidence? It was said, that as it had been recorded, it was effectual, till reversed. But, there is no mode of reversing it; no appeal or supersedeas lies ; this argument, therefore, objects the want of that which cannot be. It is said, that Maxwell required the 121 opinion of the *Court. But, that did not authorise them to give an improper direction to the jury.
    
      
      Copy of Deed — When Admissible in Evidence. — The copy of a deed acknowledged by the grantor before justices, by them certified to the clerk for record, and by him certified to be a true copy, is admissible as primary evidence, equivalent to the original. Baker v. Preston, Gilm. 235, 285, citing the principal case; Whitacre v. McIlhaney, 4 Munf. 310; Turner v. Stip, 1 Wash. 319; Lee v. Tapscott. 2 Wash, 281. The principal case is cited in this connection in Taliaferro v. Pryor, 12 Gratt. 290. See mono-graphic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      In Ben v. Peete, 2 Rand. 544, the court said: “The case of Maxwell v. Light, 1 Call 117, m ay also be considered as having some bearing on the present; the court deciding there, that if the deed of lease was admitted to record at the instance of the appellant, a copy might, under circumstances, be received as evidence.”
      In Cox v. Wayt, 26 W. Va. 816, the court said; “As a deed when properly admitted to record, becomes in itself a record, which is evidence against any person of the due execution thereof, and stands as notice to all persons of the contents thereof, it follows. that if in this case, as in all others, it appears on the face thereof, that the court or officer making the same, had no jurisdiction over the subject or authority to make the same, it can as a record, have no force or effect whatever. Maxwell v. Light, 1 Call 117; Tavenner v. Barrett, 21 W. Va. 656.”
      The principal case is cited in this connection in Herring v. Lee, 23 W. Va. 672; and in foot-note to Johnston v. Slater, 11 Gratt. 331,
    
    
      
      RepIevin — Statute—Double Rent — How Recovered.— The principal case is cited and distinguished, and the practice established by it declared to be anomalous and inconvenient, in Bargamin v. Poitiaux, 4 Leigh 419.
      Same. — The principal case is cited in Nicolson v. Hancock, 4 H. & M. 501, as a precedent for bringing the action of replevin.
      See generally, monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
   PENDLETON, President.

Upon the third point, the question is, whether the Court or the jury are to assess the double value? For, if the Court, then the evidence was proper; but, if the jury, then it was not.

Washington. It is the province of the Court to assess it; because, they are to render the judgment, and, therefore, ought to hear the testimony on which it is to be founded. The object of the law was, to punish tenants who replevied when the rent was justly due; but the landlord may distrain for more than is due, and if he does, then he is not entitled to double value.

Williams. The practice would introduce inconvenience, and would tend to surprise the plaintiff.

PENDLETON, President. If the landlord did distrain for too much, was he entitled to the double value?

The Court having taken a few days to consider the case;

PENDLETON, President, now delivered their resolution; that the judgment was erroneous on account of the Court’s permitting the copy of the deed to be given in evidence, without any other proof than the Clerk’s certificate of its being proved by one witness. Because, although the copy would have been sufficient, if the appellant refused to produce the original when called on, yet, it ought to have been proved to have been a copy by other evidence. For, its being proved by one witness, did not authorise the recording of it under the act of Assembly. That, therefore, the judgment was to be reversed, and the cause remitted to the District Court for a new trial to be had.

The judgment was as follows: ‘ ‘The Court is of opinion, that there is error in the said judgment in this, that the said Dis-122 trict Court permitted *the copy of the lease from the appellee to the appellant to be given in evidence on the trial without other proof of the execution of the original, or of its being a true copy thereof, than the certificate of Moses Hunter annexed to the copy; since, although the proof of the execution ought to have been dispensed with, on the appellant’s refusing to produce the original in his possession, it was incumbent on him to have proved the truth of the copy by better proof than the certificate of the Clerk from the records; as the recording of the original on proof bj' one witness is not warranted by law. Therefore, it is considered by the Court, that the said judgment be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal aforesaid here, and it is ordered, that the jurors’ verdict be set aside, and that the cause be remanded to the said District Court for a new trial to be had therein, in which, if the appellant shall refuse to produce the original lease, the copy shall be admitted as evidence, upon the appellee’s proving, either that it is a true copy, or that the probat in Berkeley County Court, was made at the instance of the appellant. And, it is further ordered, that upon the trial and after the verdict, if the jury shall find for the avowant, and ascertain the rent due, the tenant shall be allowed to give in evidence to the Court, that more rent was distrained for, than shall be so found due, in order to avoid the entry of the judgment for double the value of the rent, and confine the same to the rent only.”  