
    John M’Laurin v. Elizabeth Talbot.
    
      !Tried before Mr. Justice Richardson, at Chesterfield, Fall Term, 1834.
    To show the ginai'deed’.'in'oí der.to admit a iuS¿vidonce°un-d“x grantee was vedbyhSthevj who was iiute-wd that tile Scented- bthat he lived on the years during'his son’s minority, gaveTmd'foML ll|s t0.be madt= cam"ofa|™and í¡;e i\d,miüistra' sed grantee pro-searched among Msmtestate’spa-not findlt: mu, thatth%ev.ide“?e admit a copy from 5° r°Si5' ter s 0fgce<
    Trespass to try titles. The plaintiff attempted to make out the following chain of title : 1. A grant to James Norris: 2. The death of James before the act of 1791, abolishing the right of primogeniture, and that William Norris was his son andheir: 3. A deed from William to Edith Norris: 4. a deed from Edith to her grandson, Edward Norris: 5. the death of Edward intestate, and a sale for partition, by the ordinary, and purchase by the plaintiff. The original deed, from Edith to Edward Norris, could not be produced; and to shew its ex is-tence and loss, the plaintiff proved, by the father of Edward, that the witness had lived on the premises where Edith his mother had lived, for many years while Edward was a boy — that he heard that his mother, Edith, had made a deed to his son Edward for the land; he is illiterate, and does not know that he ever Saw. the deed; that during his son’s minority, he sold the land to Talbot, the deceased husband of the plaintiff, and gave him his bond that his son would make him titles when he came of age ; and 1 albot went into possession, and continued there until his death, and the defendant, his widow, has resided there ever since. Edward died about a year after coming of age. The witnesses to the deed, as recorded, have left the State, The administrator of Edward Norris proved that he had searched among the papers oí his intestate, and could not find the deed tne uouu.
    Upon this evidence, the plaintiff offered in evidence a copy of the deed from the Register’s office, which the Court refused to receive ; and the plaintiff submitted to a nonsuit, with leave to move to set it aside, which he now does, on the ground :— That the evidence of the existence and loss of the original, was sufficient to have admitted the copy from the register’s office.
    
      Graham, for the motion,
    contended that the defendant claimed under Edward Norris, and could not dispute his title. 1 Hill, 380. And at all events, that the evidence given of the loss of the deed, was the best which the circumstances of the case would admit of, and was sufficient to allow the copy to be received; and he cited Dingle v. Bowman, 1 M’C. 177.
    
      Clinton & Hanna, contra.
   Harper, J.

We think there was evidence enough to allow the copy from the register’s office to be given to the jury. In the case of Dingle v. Bowman, 1 M’Cord, 177, it was held, in reference to the act of 1731, (P. L. 133) which provides that “the records of all grants and deeds, duly proved before a justice of the peace, in the usual method, and recorded, or to be recorded, in the register’s office of this province, and also the attested copies thereof, shall be deemed as good evidence in law, and of the same force and effect as the original would have been, if produced, in all the Courts of law and equity that to authorize the copy from the registry to be given in evi. dence, there must be evidence of the loss of the original. It is hardly possible to give evidence of loss, without also giving evidence of the existence and the contents or general purport, to support the evidence of existence and contents afforded by the record. What is the evidence here ? First, there was the testimony of Norris, who was the heir at law of his mother, who heard that there was such a deed, but, being illiterate, does not know that he ever saw it. In the belief of its existence, however, he himself made no claim to the land, but contracted to sell it as his son’s, the intestate’s, and the purchaser went into possession under that contract, and has retained it unmolested ever since. This, I think, is strong proof of the deed’s existence. -Then there is the testimony of the administrator of Edward Norris, that the original was not fo be found among his intestate’s papers, where only it was natural to expect to find it. Supposing it to have been casually lost by the intestate in his life time, it is not probable that more satisfactory proof of the loss could have been afforded. The illiterateness of the father and natural guardian of the intestate, would prevent his being able to identify, or give any account of it. To him the custody of the deed would properly belong during his son’s minority. There may be questions as to the credit to be given to this testimony, or the .effect of it; but these are for the jury.

The motion is granted.

Johnson and O’Neall, Js, concurred.  