
    
      J. O. Hill & Wife vs. Hansford Parker. J. O. Hill & Wife vs. Madison Rooks and others.
    
    An incomplete proceeding in Equity, consisting of a bill and certain orders taken by the complainant’s solicitor, binds nobody as a decree: it may be evidence of its own existence, and of consequences thence deducible, but even as an act or declaration affects only the ’complainant and his privies.
    A statement or exhibit in such bill, is generally considered as the act of the solicitor, furnishes feeble evidence even against the complainant, and affects not the defendants or third persons.
    The secondary evidence of law papers, said to be lost, must be evidence of their contents admitted after proof of existence and loss.
    The admission of evidence wholly irrelevant to the question of fact submitted to the jury, is no necessary ground for new trial.
    After examination of old registry books, found in the Clerk’s office at Orangeburg, and of all the legislation concerning Registers of Mesne Conveyances, the Court is of opinion that there was not ever any district Register for Orangeburg appointed under the constitution of 1778, and before the organization of county courts in that district in 1786.
    If there had been such a Register existing before the organization of a county court in Winton, doubtful whether a party might not at his election have had a deed of land in that county registered either at Orangeburg or Charleston: certain that if there was no such Register for Orangeburg, registry in Charleston was proper: Copy of a deed so registered in Charleston, certified by the Register in Charleston, admitted under the Act of 1843.
    
      Before Frost, J. at Barnwell, July, Extra Term, 1851.
    In the case against Hansford Parker, the report of his Honor, the presiding Judge, is as follows.
    
      “ This was an action of trespass to try title. The plaintiffs produced in evidence, a grant to Luke Breen and Henry Hughes, of the 5th June, 1786, for 12,555 acres of land on Saltketcher river, in Orangeburg district. The grant was located, and the land sued for shewn to be within the limits of the grant. A certified copy of deeds of lease and release from Heny Hughes to Nathaniel Twining, dated 13th and 14th days of July, 1786, for one half of the land granted, was produced in evidence.— The deeds had been recorded in the office of the Register of Mesne Conveyances for Charleston district, the first of September, 1786, and the copy deeds were certified by that officer. It was objected to the admission in evidence of the certified copies, that by the Constitution of 1778, a Registry of Mesne Convey-ancés was established for the district of Orangeburg, and all the districts in the State; and so the deed was illegally recorded in Charleston; and a copy, certified from that office, was incompetent. It was denied that any Register had been appointed for Orangeburg district, under the Constitution of 1778; and that no registry of conveyances, in fact, existed in that district; nor any where else for deeds of land in Orangeburg district, except in Charleston, before the organization of the county court, for the county of Winton, (part of Orangeburg district) on the 17th October, 1786.
    Mr. Glover was examined. — He had been Clerk of the Coiftt for the district of Orangeburg, seven years. He produced two unbound books, purporting to be a registry book of Mesne Conveyaces for that district. He said he had no doubt the books produced by him were genuine ; and that he would, from those books, give certified copies of deeds, if required. The following notes were made of some particulars, to which my attention •was called. In one of the books there are twenty blank pages at the beginning. The first entry of a deed to record, is at page 200. The book ends with page 247. The first deed recorded is dated in June, 1781, and the probate of this deed is dated the 16th August, 1783. The last recorded deed is dated in May, 1789 ; and the date of the probate is the 25th April, 1791.
    “ At page 214, the date of the entry on record of the deed is noted as the 4th June, 1785. Before that date, there is no note of the time when the deed was recorded. That can be inferred only from the date of the probate. The same is the case with the subsequent entries, except an entry at page 236.
    “ The name of the register does not appear in any part of the books.
    “ At page 236, a deed of one Bruton is entered. The probate is dated the 4th August, 1785. After the record of the deed and of the probate, follows this memorandum in the record book: “ Ordinary’s office — recorded July 20th, 1788, in book D. p. 236 f and immediately under this entry, the following:— “ The aforesaid deed was recorded the 15th Febiuary, 1789.— James Carmichael.”
    “ When the county court for Orange was organized, 4th Monday in April, 1786, James Carmichael was appointed Clerk of the Court.
    “ On the 25th January, 1790, there is entered in minutes of the county court, an order that “ Charles L. Middleton, Ordinary, do deliver up to James Carmichael, Clerk of the Pleas of the Circuit Court, for the district of Orangeburg, all the records in his office.”
    Mr. Glover also stated that there are in the office of the Register for Orangeburg district, registry books, bound and labelled ; of which the first is labelled No. 1, and was begun in 1791. The series of books is regularly continued to the present time.
    “ With great hesitation and doubt, I admitted the copy deed.
    “ The plaintiffs then proved that Nathaniel Twining was a citizen of Georgia, who died the 17th January, 1818, leaving surviving him, his wife (who afterwards married one Joicey) and a posthumous child, the wife of the plaintiff, who was bom the 28th February,-1818. These persons have always resided in Georgia.
    “ The defendant relied on the statute of limitations.
    
      “ He produced in evidence the docket book of the Court, for Barnwell district, for April Term, 1813; in which was entered a case of Nathaniel Twining vs. William Weekley and others, for partition; with an entry by the Judge, in that case, of “ demurrer overruled and respondeat ouster awarded,” — also the docket book from November Term, 1813, to November Term, 1815, in which was entered a case of Nathaniel Twining vs. William Weekley and others, for partition; with an entry by the Judge, “ discontinued.” I have no note nor recollection of any objection to the admissibility of this evidence, nor of the parol testimony which follows.
    “ John W. Freeman, the deputy clerk, testified to a search in his office for the records of the cases stated; and that they could not be found.
    “ John Connolly — Knew Twining, and saw him when in this State, surveying the land. He thinks Twining sued several persons living on the land, for the same now in controversy — James Connolly, Edward Platts, Sr; he thinks also William Creech, Eli Murray and James Campbell; thinks Weekley was sued afterwards. He heard some of the defendants gave up the land to Twining, and paid him for it. Twining came twice to look after the land: in 1808, and again in 1814 or 1815.
    “ Col. B. H. Brown — Knew Twining had a suit about the Saltketcher land. Thinks he sued William Barker, Edward G. Platts and Captain John Creech ; he cannot positively say any more persons were sued. The suit was in 1814 or 1815. It was understood that Twining was defeated. In the evening, Twining got into a drunken row and made an excuse that he had lost his case. Twining claimed no other land than the Breen and Hughes grant in the district. There was much excitement about the suit. The parties were living on the land. He thinks a considerable number of occupants were sued. His impression is, that the parties were sued for the land; not for partition. He has forgotten nearly all about it. He came to village of Barnwell in 1813, and saw Twining twice.
    “ Alex. Harden — Remembers a suit by Twining, against several persons; the witness among them. All of them were on the grant. He remembers William and John Creech, Joseph Connolly, Eli Myrich and William Southwell to have been sued. He thought James Campbell and Barker were also sued. He cannot recollect the date of the suit; but it must have been thirty-five or forty years ago. The suit died away. Nothing was done in Court. It was dropped. . He knew of only one suit. It was for the land, not for division.
    “ The defendants also offered in evidence the record of a bill in Equity, to which William Lyman and Sarah Twining were parties complainant, and Sarah E. C. Talbot and Mary Anna Twining were parties defendant. The bill was filed the 1st March, 1819, and prayed partition of a large body of land on Saltketcher, containing 12,724 acres, according to a survey of Allen, bearing date 9th March, 1815. The plaintiffs objected to the admission of this record, but' the objection was overruled. Exhibit A. was a copy of the will of Nathaniel Twining, dated the 14th June, 1815, by which he devised one-third of his estate to his widow, and one-third to his grand-daughter, Sarah Talbot, and one-third to his daughter, Mary Anna Twining. The following orders in the case were shewn. To take the bill pro confesso, June, 1819 ; for a writ of partition ; for extending the time, 8th June, 1821; for further time, 5th February, 1822; for a new writ, 5th June, 1822.
    “ The defendant also produced in evidence a grant to Jesse Connolly, for 443 acres (surveyed the 5th August, 1808,) on Saltketcher, dated 6th February, 1809. A conveyance by H. D. Duncan, sheriff, to William Creech, of the land granted, under an execution of Moye against Jesse Connolly, dated the 5th September, 1819; and a conveyance from William Creech to Sarah Connolly, a daughter of Joseph Connolly, and now the wife of defendant, dated the 14th July, 1828.
    
      “ The defendant also produced a conveyance from Henry Fisher, to himself, dated 22d March, 1831, for 200 acres of land, being part of a grant to Joseph Connolly, for 632 acres.
    
      “ The Jesse Connolly grant adjoined this piece. The defendant resides on the 200 acre tract, and has a field on the Jesse Connolly grant.
    “ On the subject of possession of these several parcels of land, John Connolly testified that, thirty-seven years ago, Jesse Connolly had possession of the land granted to him. Jesse Connolly took possession three or four years after the grant to him. He lived on it more than thirty years, and until it was sold to William Creech. Joseph Connolly took possession after Creech’s purchase, and continued to occupy, by permission of Creech and Sarah Connolly, until his death, in 1850 or ’51. After the death of Joseph Connolly, the defendant took possession.
    
      “ The defendant has had possession of the 200 acre parcel (part of Joseph Connolly’s grant) for twenty-one years. David Thompson and Francis Bassett lived on it, each, two years before the defendant. Joseph Connolly (the father of the witness) cleared about five acres in 1809, and cultivated it for five years; and then the witness had possession for ten years by the permission of his father; and until the land was sold by the sheriff. He at first cleared ten acres, and afterwards extended his planting to twenty and thirty acres. Jesse Connolly planted ten acres on his grant. When Twining sued, the witness was living with his father. William Creech bought at sheriff’s sale, for Joseph Connelly, who gave the land to his daughter, Sarah. The defendanc lives on the Parker parcel of the Joseph Connolly grant, and plants on it about ten acres. He also plants about twenty acres on the Jesse Connolly grant. There are thirty or thirty-five acres on the Joseph Connolly grant cleared, but not worked by defendant.
    “ Michael Connolly — Jesse Connolly first lived on the land granted to him, about forty-two or forty-three years ago. It was surveyed in 1808. Jesse went into possession as soon as he could build a house. Jesse lived there two or three years, when John Connolly, his son, took possession and kept it until the land was sold by the sheriff.
    “ Joseph Connolly first settled on his grant, about the time of the grant to Jesse. Witness knows the lines of Joseph Connolly’s possession. Joseph claimed the whole tract to Creech’s land. Joseph staid on this land ten or fifteen years, until he died. Jesse at first lived on the Parker part of the Joseph Connolly grant. Joseph Connolly lived below that, and on his grant. Jesse planted eight or ten acres, on the Parker parcel; at the same time he was on his own grant. Jesse was overseer for Stone one year. He first planted on the Joseph Connolly grant.
    “ William Creech — Knew the land in dispute, thirty-three years ago. Joseph Connolly lived on the Jesse Connolly grant; not in the Parker house. Jesse worked for the father of witness — ten or fifteen acres were cleared on the Jesse Connolly grant. It was old land when Jesse worked it thirty three years ago. It was poor and worn out. Jesse planted ten to twenty acres until Joseph got there. Joseph and Sarah Connolly lived on the land. Parker married Sarah C. on the land, and has lived there ever since. When the witness first knew the Joseph Connolly grant, David Thompson had possession — thirty-three years ago. It was then an old place. Joseph died on the Jesse Connolly grant.
    
      “ John Connolly, recalled. — Joseph Connolly built on the land before he got his grant. He worked a five acre field outside of the Parker land. The field on the Parker parcel was cleared by Thompson. Bassett planted the field next, and went off. William Connolly (a son of Joseph) succeeded Bassett, and. staid five to seven years by his father’s permission. Parker succeeded to William, and remained until the land was sold by the sheriff. Joseph built a mill before he made the survey, and planted five acres for-five years, about the year 1808 or 1809.
    “ It was shewn that the land granted to Joseph Connolly was sold by the sheriff in February, 1825, to B. H. Brown & Co. It was described as eight hundred acres of land, the mill and residence of the defendant. Brown & Co. sold the land to Fisher. At the time Brown & Co. purchased, William and John, the sons of Joseph, were living on the tract.
    
      “ Robert Anderson. — It is thirty-five or thirty-six years, or more, since Jesse settled on the land. Witness knows Joseph Connolly’s grant. Joseph settled on it thirty-five or forty years ago, before Jesse settled on his. William Thompson settled on the land claimed by defendant.
    “ The plaintiff, in reply, shewed that Nathaniel Twining had a daughter, Anna E. Talbot, who died in 1807, leaving a daughter, Sarah Ann, who was born the 18th March, 1807, married George W. Lamar, the 22d May, 1823, and died the 2d November, 1833, leaving surviving her, her husband and four children, who were infants when this suit was commenced.
    “ The jury were instructed that the plaintiffs had shewn a good paper title ; and that the claim of the plaintiffs was protected by minorities against any adverse possession which may have commenced since the death of Nathaniel Twining, or which, having commenced before, had not been continued long enough, during his lifetime, to have barred an action, by him, for the recovery of the land in dispute. They were accordingly directed to consider and determine whether Jesse Connolly and Joseph Connolly had an adverse possession, for seven years or more, on their several grants, before the death of Nathaniel Twining, — or if either had had such possession on his particular grant; and to find a verdict in conformity to the evidence of ’adverse possession, as it might affect the plaintiff’s rights, in the manner explained to them. All the evidence was brought to their attention, and they found a verdict for the defendant.”
    In the cases against Madison Rooks and others, the following is the report of his Honor, the presiding Judge.
    “This case was also an action of trespass to try title, called for trial next after that of the same plaintiffs against Hansford Parker, a report of which is prefixed to this. The land claimed was a part of the Breen and Hughes grant; and the evidence of the plaintiff’s title was the same as in the case against Parker. It was agreed between the counsel that the evidence to support the introduction of the office copy of the deeds of lease and release from Henry Hughes to Nathaniel Twining, which was offered in the case against Parker, should be read from the Judge’s notes as evidence in this case.
    “Having had, before the call of this case for trial, an opportunity to reflect on the question of the competency of the office copy of the deeds from Hughes to Twining, I came to the conclusion that the testimony of Mr. Glover, and the books produced by him, did furnish sufficient evidence that a registry for deeds of conveyance had, in fact, been establish-, ed in Orangeburg district, in conformity with the provisions of the the Constitution of 1778, before those deeds were executed ; that the deeds should, therefore, have been recorded in the office of the Register for Orangeburg district; and that the record of them in Charleston, being unauthorized by law, an office copy from the registry in Charleston was not within the intent of the Act of 1843, making office copies of deeds evidence; and that the same were inadmissible. — The plaintiffs, thereupon, submitted to a nonsuit, and have given the annexed notice of appeal.
    “The other cases of the same plaintiffs, against a number of defendants, involving the plaintiffs’s claim to recover from them portions of the Breen and Hughes grant, of which they are in possession, were successively called and nonsuited.”
    In the case against Hansford Parker, the plaintiffs now moved for a new trial, on the grounds,
    1. That the plaintiffs made out a clear case for recovery, and the defendant failed to establish his defence.
    
      2. That, in particular, the defendant failed to prove a sufficient adverse possession to the land in dispute.
    3. Because his Honor admitted in evidence the proceedings in the Court of Equity for partition.
    4. Because his Honor admitted the Judge’s docket and parol evidence of the suit brought by Nathanisl Twining vs. William Weekley and others.
    
    
      And in the cases against Madison Rooks and others, the plaintiffs also moved that the nonsuits be set aside, on the ground that the office copy of the deeds offered in evidence by them was admissible.
    
      Bellinger, Hutson, for appellants,
    cited 4 Rich. 56; 3 Stat. 613; 5 Strob. 189.
    
      Patterson, Bauskett, Aldrich, contra,
    cited 1 Bay, 263 ; 1 Bay, 491; 2 Rich. 184; 1 Rich. 474.
   In the case against Hansford Parker, the opinion of the Court was delivered by

Wardlaw, J.

What is called the record of a bill in Equity, is at best an incomplete proceeding, which was interrupted after some interlocutory orders but before any final decree. Certain steps were taken by a solicitor for the complainants, but there was no service of process upon the defendants, nor judgment against them, nor evidence of their participation in the matter, or assent to it. The proceedings, then, can have no effect against any body as a judgment: but the papers which contain them may be evidence of their own existence and of the consequences which thence result: and the acts which they exhibit may avail, as declarations would do, to bind those who did them. It may be presumed that the complainants’s solicitor had the warrant of complainants: it would follow then, at most, that William Lyman and Sarah Twining, the complainants, and those claiming under them, are bound by his acts, and that the proceedings are evidence that these complainants did file the bill in Equity, and after certain orders did abandon their proceeding. Whatever may be deduced from these facts might be urged against William Lyman and Sarah Twining : but the plaintiffs here do not claim under them, and cannot be affected by any deduction drawn from their acts.

It is even more clear that the plaintiffs are not bound by the statement of the will of Nathaniel Twining made in the bill in Equity or in an exhibit accompanying it: for the statements of a bill in Equity are, ordinarily, considered as the acts of counsel, and furnish only feeble evidence of admissions even against the complainants.

The entries in the Judge’s dockets, preceded by evidence of the loss of papers, may have been sufficient to shew that Nathaniel Twining did commence in the Court of Common Pleas a suit in partition against William Weekley and others, and that this suit was discontinued. Any inferences from these facts are binding on the plaintiffs who claim under Nathaniel Twining. Who were the others sued along with William Week-ley, of what land partition was sought, and why the suit was discontinued, are all matters about which no proper evidence has been given: for the testimony of Col Brown, Alexander Harden and John Connelly, (which gives vague impressions about things perhaps never well understood by the witnesses,) seems to relate not to a proceeding in partition, but to an action to try titles, and was not that secondary evidence of the contents of law papers, which would have been admissible after their existence and loss had been established.

We perceive, then, that testimony was received on the trial, which should have been excluded : but we cannot see how the result was thereby affected. If the admission of the copy will and of the probates written thereon, served, as it is said, to contradict Mrs. Joicey, by shewing that Nathaniel Twining died in 1817, and not in 1818 as she testified, the case of the plaintiffs is in no way injured by the contradiction. If Nathaniel Twining brought a suit in partition, no letting fall of such suit could bar him, as the letting fall of an action of ejectment without bringing a second action might have done; and so the jury were instructed. If admissions of these plaintiffs were argued from the acts of the complainants in the bill in Equity, such admissions affected only the question of title, and were wholly irrelevant to the only question which was submitted to the jury,, when they were told the plaintiffs had shewn a good title, and that they must enquire whether Jesse Connolly and Joseph Connolly had an adverse possession for seven years or more before the death of Nathaniel Twining. The jury have found that Nathaniel Twining, in his lifetime, was barred by adverse possession; and of this the report shows that the evidence was ample.

We cannot presume that the jury were influenced by irrelevant testimony or misled by illogical inferences, when their verdict is well supported by competent evidence. The improper admission of incompetent testimony, which does not bear upon the questions of fact really in controversy, has often less influ ence upon the jury than the sly introduction oí irrelevant topics, or the unfair use of circumstances contained in the evidence, both of which often occur in the argument of cases. But these latter improprieties could not usually be made reasons for granting a new trial, without serious delay of justice; and as to the former, this Court must endeavor to exercise a sound discretion, and not to be led by an arbitrary rule to ascribe importance to that which it sees was wholly unimportant.

The motion is, therefore, dismissed.

O’Neall, Evans, Withers and Whitner, JJ. concurred.

Frost, J. concurred in the result.

In the cases against Madison Rooks and others, the opinion of the Court was also delivered by

Wardlaw, J.

In the case of Hill vs. Sanders (4 Rich. 526,) decided at the last term, it was held, in reference to the admission of tbe same copy deed which is now in question, that the county court of Winton not having been organized when the deed was registered, and no district Registry of Mesne Conveyances for Orangeburg appearing then to have been in existence, the deed was properly registered in the oflice of the Register of Mesne Conveyances at Charleston : and so the copy from that office was admissible. The case now before us is supposed to have been made different from Hill vs. Sanders, by the introduction of two old books, which have been found in the Clerk’s office for Orangeburg district, and are thought to shew that there was, at the time when the deed was registered in Charleston, a Registry of Mesne Conveyances existing in Orangeburg district.

These old books have been laid before this Court, and we have carefully examined them and noticed the testimony of Mr. Glover, the clerk, who produced them. The books, in the report, are said to be “ two unbound books, purporting to be a registry book of Mesne Conveyances for that (Orangeburg) district.”. They manifestly contain copies of deeds which are therein recorded, as is said therein ; but no where do they purport to have belonged to a district registry as distinguished from a county registry. Whether they belonged to the registry which was kept by the county court for Orange county, or io one which was kept by a Register of Mesne Conveyances for Orangeburg district, they are now, under various Acts of the Legislature, (7 Stat. 269; 296; 298) properly kept by the Clerk of the Court of Common Pleas for the district of Orangeburg, and Mr. Glover, the clerk, would be in the course of his duty in certifying copies from them. But that does not help us in the question which is to be resolved concerning them, — for if they belonged to the registry for the county of Orange, they furnish no evidence of the existence of a district registry, and their introduction serves no purpose.

The second one of them contains no date shewing any registry made prior to April, 1787, — it plainly is altogether the work of the Clerk of the County Court for Orange. The first one only is then material, and the only entry in that, which leads to the supposition that it was the act of a district Register and not of the county Clerk, is the entry on page 214, in these words,— “ Recorded 4 June, 1785.” The argument is this: The County Court for Orange was not organized until April, 1786 ; the first entry in the minutes of the County Court, dated April, 1786, shews that the clerk and sheriff were then appointed by the Judges : recording done in June, 1785, could not then have been done by the Clerk of the county; and as the Constitution of 1778 provides in sec. 29, that, amongst other officers, “ the Register of Mesne Conveyances in each district,” shall be chosen by the Senate and House of Representatives, and in sec. 31, that in case of vacancy in any of the offices directed to be filled by the Senate and House of Representatives, the Governor and Council may appoint others in their stead,” it is to be presumed that a Register for Orangeburg district was either chosen or appointed between 1778 and 1785, and continued to discharge his duties, from his entry into office until he was entirely superseded by the organization of the County Court in every one of the four counties into which, by the Acts of March 1785, (4 Stat. 664; 7 Stat. 212) Orangeburg district was divided.

To understand the force of the entry made in the old book at page 214, upon which all this argument depends, we must observe that, first: — In the old book, the numbering of its pages begins with 176, blank, leaves are left, the first writing is on page 200, — the whole book is made up of sheets loosely stitched together, and additions to its original size seem to have been made, and could easily -be made either at the beginning or the end.

Second : James Carmichael was Clerk of the Court of Common Pleas for Orangeburg district, when the County Court Act was passed in March 1785, and continued in that office until 1790, and afterwards ; and he was also appointed by the Judges of the County Court for Orange, clerk of that County Court:— Third: The old books now spoken of, were manifestly the books of registry, in which James Carmichael, as Clerk of the County Court, did register deeds, whether the first book was begun by him or not.

Fourth: After, by Act passed 19th February, 1791, (7 Stat. 269) the County Court of Orange was suspended, and the County registry of deeds was transferred to the district Register, a new book was begun by the district Register, (Bruce, who was elected the day before the ratification of this last mentioned Act,) and a regular series of books has since been continued.

These observations, apart from all other evidence concerning the existence of a Register for Orangeburg district in 1785, seem naturally to conduct to the conclusion that the writing in the old book, from its beginning at page 200 to page 214, although not in the handwriting of Carmichael, was done by his authority, as Clerk of the County Court, and was probably all intended to be embraced by the entry, Recorded June 4, 1785. The date of that entry, we think, may be explained by one or both of two suppositions; first, that the majority of the Judges of the County Court had, in fact, between March, 1785, and June, 1785, appointed Carmichael to be Clerk of the County Court, although the court was not fully organized, nor a minute of its proceedings kept, before April, 1786; and, second, that even if the recording was done after the organization of the County Court, date was given to it, according to the day when the deeds were left with Carmichael, then clerk of the district Court, and either-appointed, or expected to be appointed, clerk of the County Court. The blank leaves left and the provision made for prefixing more in the old book, seem to shew that he who made these contrivances did not intend to write regularly onward in the book, but for some reason designed to give precedence, in the order of entering, to some deeds over others; and a circumstance, which an examination of the old book has disclosed, gives additional probability to one or both of the suppositions we have made. That is this, — all the deeds recorded between pages 200 and 214, relate entirely to personal property, except, perhaps, one, which seems to cover all the grantor’s property in Camden. The 45th sec. of the County Court Act, (7 Stat. 232) may well have been construed to mean, that all deeds should be recorded in the Clerk’s office of the County Court, but that the mode of proving deeds in open court therein provided, was required only as to conveyances of real estate, (see also 7 Stat. 234, 1785, § 47; 244, 1786, § 10; 247, 1788, § 1). Before the County Court met, a county clerk, if appointed, might have considered it proper to record deeds of personalty; but he could not, without plainly violating the letter of his instructions, have admitted to record any conveyance of real estate. We accordingly find that, on the next page after the entry dated June, 1785, a deed of real estate is recorded ; and in Carmichael’s handwriting, on page 216, it is said to have been “recorded 28th March, 1787.” The recording of deeds of personalty was no where, perhaps, (except in Georgetown, 5 Stat. 187) within the duty of a Register of Mesne conveyances, as the duties of that office were defined by the Acts of 1698 and 1731, and were afterwards understood, prior to late Acts concerning the recording of marriage settlements and mortgages. A very faint presumption that one was doing the duty of such Register, could then arise from his having, in 1785, recorded deeds of personalty and no others. On the other hand, a registry embracing deeds of all kinds, is just such as the County Court Act contemplated should be kept by the clerk of the county court.

To the preceding, other considerations may be added, which oppugn the inference of an existing Register of Mesne Conveyances for Orangeburg district in 1785, that has been drawn from the old book we' have examined. No evidence has been adduced to shew that a Register for Orangeburg was ever either chosen by the Senate and House, of Representatives or appointed by the Governor and Council, before the election of Bruce in 1791. The Constitution of 1778, although it directs how a district Register shall be chosen, does not define the duties of that office, and seems to contemplate the intervention of the Governor and Council only for the appointment of officers instead of others who had been chosen and left vacancies. In 1786, (4 Stat. 722) an Act was passed, providing that Registers should be appointed for the districts of Georgetown and Beaufort, and should be vested with the like powers as were then exercised by the Register of Mesne Conveyances in Charleston. The terms of this Act confirm the conjecture, which the unsettled condition of the country during the Revolutionary war and soon afterwards, and all that we have heard concerning the officers that existed in the other districts into which the State was then divided, would, in view of the Constitution of 1778, of themselves have made probable, — that between 1778 and 1786, no Register was appointed out of Charleston. This Act made no provision for Orangeburg, nor for any district besides the two that were named in it, because, in every district besides Charleston, Beaufort and Georgetown, county courts were in the course of organization, and the registers intended to be kept by the county clerks rendered a district register unnecessary. When, by Act of 19th February, 1791, (7 Stat. 269) county courts were suspended in Orangeburg, and the existence of a district Register was recognized, — a Register had been elected the day before the Act passed: becaúse, by this suspension, a district Register was made necessary, and the provisions made for Beaufort and Georgetown had sufficiently defined the duties of the district officer, the mode of whose appointment had been settled by the Constitution of 1778. Where county courts were established, the district Ordinaries, whose powers had been transferred to the county court Judges, were required to deliver all the records of their offices, to the Clerks of the Common Pleas in their several districts (7 Stat. 249): When county courts were suspended in Orangeburg district, and the offices of Register of Mesne Conveyances and Ordinary that had been superseded, were thereby again rendered necessary, provision was made for transferring the county court records, — those which related to the business of the Ordinary to the Ordinary — those which related to judicial business to the district clerk, and all other records to the Register of Mesne Conveyances (7 Stat. 249): — when clerks of the district courts were made ex officio Registers, they became ipso facto keepers of the records of the Register’s office in their districts respectively, (7 Stat. 296): — when county courts were abolished, the records of each county were transferred to the court of the district in which such county was included, (7 Stat. 298): — But no provision was made by the county court Act, or any other Act, for transferring to the county courts, or to any other office, the records of the district register, in any district where such Register, if existing, must have been superseded by the establishment of county courts. This is exactly consistent with the fact, as we believe it to have existed, that when county courts were established, there were no district Registers, besides the Register in Charleston: but in this state of the' legislation on the subject, it would be very hard to explain how the records of a Register for Orangeburg district could have come to the keeping of a clerk of the county court for Orange (one of the four counties into which that district was divided) and should have been continued by him, without any caption, or even a black line to denote the change.

This Court, then, upon the evidence before it, attains the conclusion that there was no Registry of Mesne Conveyances for Orangeburg district, at the time the deed to Nathaniel Twining was recorded in the office of the Register of Mesne Conveyances at Charleston, to wit, the first day of September, 1786. In attaining this conclusion, we have avoided the question which has been raised, as to the admissibility of newly discovered documentary evidence which the appellants have offered for our consideration. We have noticed only the evidence which was offered on the circuit, and the public Acts of the Legislature, with the single addition of the fact that Bruce was elected Register for Orangeburg district on the 18th day of February, 1791. The fact of such an election having then taken place, serves only to explain the recognition of an existing Register which the Act passed in February, 1791, (7 Stat. 269) contains: and in default of proof, might well be inferred from the course of legislation which we have adverted to, and the appearance of the registry books soon afterwards begun.

The impossibility of Twining’s having his deed registered in the county court of Winton before that court was organized, forbids us, as is shewn in Hill vs. Sanders, from holding that the county court Act required that of him: but it is supposed that although he could not have obtained registry in the county where the land lies, the imperative provisions of the county court Act rendered registering any where else insufficient — that the impossibility may have exempted him from penalties for not registering in Winton, but did not authorize him to register in Charleston. In this view, there would have been, in strictness, no more authority for registering in the office of a Register for Orangeburg district, than in the office at Charleston. The general scheme of legislative provisions on the subject, however, gives no more countenance to this view than it received in Hill vs. Sanders. The Acts of 1698 (2 Stat. 137) and 1731 (3 Stat. 296) required registration of mesne conveyances for prevention of frauds, and gave advantage to him who was diligent in procuring it to be done in the single office which then existed in Charleston for the whole province. When the form of government, adopted by the Legislature in 1778, had provided for the manner in which a Register should be chosen for each of the judicial districts into which the State was then divided, the office in Charleston still subsisted; and it was until further provision made, the office for all districts wherein no separate Register was appointed, if, indeed, it would not, after mere appointment for other districts should have been made, still have continued, at the election of parties, an office for the whole State; for mere appointment, without any other provision, could hardly have had any other eifect than to create various offices of registry between which a choice might have been taken. The county court Act of 1785 intended to multiply places of registry, and to increase the stringency of previous regulations, particularly by requiring, as it for the first time did, that registration should be in the office of that territorial division within which the land lay. An amendment made in 1789, (5 Stat. 128) shews that, as to deeds not previously recorded, it was considered immaterial whether they should be afterwards registered in the Clerk’s office of the county, the Secretary’s office, or the office of Register of Mesne Conveyances for any district, where county courts were not established. By the county court Act it was designed that county courts should have been established in Charleston, as in every other part of the State, and after their complete organization the Register in Charleston, as other Registers (if others then existed) would have been, rendered unnecessary: — yet no provision was made for transferring the records of the registry in Charleston, and many subsequent provisions shew that the continued existence of the Charleston Register was conformable to the views of the Legislature, and that the cessation of his duties, before the substitute which county courts every where organized would have afforded, was not contemplated. The same expectation of continuance which prevailed as to the Charleston Register, would have prevailed as to any district Register that might have been appointed, until the substitute for him was ready to act. Before the organization of all the county courts in his district, such district Register would have continued to perform his duties, either as the exclusive register for those portions of his district which were as yet unprovided with other registers, or as one of two or more, to whom a party at his election might have resorted. Wherever no district Register had been appointed, and county courts had been established but not organized, it would have been proper to resort to the Register in Charleston, as if neither the Constitution of 1778, nor the county court Act had been passed ; for neither of them would as yet have made any change, and it would have been much more consistent with the wise purposes for which registration was designed, to hold that the existing officer was intended to go on in the performance of his duties until a contemplated substitute was ready to take his place, than to hold that a prospective improvement repealed useful provisions before better could be carried into effect.

Thus, it will be seen, that there is much more reason for saying that before the organization of the county court for Winton county, deeds of land lying in that county might have been registered in Charleston, even although there had been then existing a Register of Mesne Conveyances for Orangeburg district, than there is for saying that such deeds could not properly have been registered in Charleston, if no such Register for Orange-burg district had ever previously been appointed.

The motion to set aside the nonsuit is, therefore, granted.

O’Neall, Withers and Whitner, JJ. concurred.  