
    Mary Linning, et al. v. William Crawford.
    To intitle the plaintiffs, where there are more than one, to give in evidence a certified copy of an original grant, they must all make the affidavit required by the act of 1803, that the original is lost, or destroyed, or out of their power, &c: the affidavit of one only is not sufficient. The rule would be the same, if the evidence were offered by several defendants.
    Where the action is by trustees, they, and not the eestuy que trust, must make the affidavit: The legal estate is in them, and they will be presumed to be in possession of the muniments of title.
    After a verdict for plaintiff founded on evidence improperly admitted, the Court will award a new trial only, and not a non suit; unless it appear, that the whole case is before the Court, and that the objectionable evidence cannot be supplied by such as is competent.
    Tried before Mr. Justice Richardson, at Abbeville, Spring Term, 1831.
    Trespass to try titles. The plaintiffs made title under a grant to Edward Blake, and claimed in the character of trustees ; but it appeared, that Mary Linning, one of them, had become exclusively intitled to the beneficial interest. The original grant was not produced, but a certified copy from the Secretary of State’s office was offered in evidence, under the usual affidavit, piade, however, by Mary Linning alone, that the original was not in her power, or possession, &c. It was objected by the defendant, that the affidavit should have been made by all of the plaintiffs; but the objection was overruled by the presiding Judge, and the copy admitted. Verdict for plaintiffs.
    The defendant now moved to set aside the verdict, and for a non-suit, on the ground, that the copy of the grant had been improperly admitted in evidence, and that the plaintiffs had made out no title independently of that evidence.
    Burt, for the motion.
    Ward law, contra.
    
   Johnson, J.

delivered the opinion of the Court.

We are very clearly of opinion, that the copy grant was improperly admitted in evidence. The act of 1803, 2 Faust, 498, makes it lawful for any party, plaintiff, or defendant, to produce a certified copy of a grant in evidence, under the proviso, that the person or persons, who offer to do so, shall swear that the original is lost, or destroyed, or out of his, her, or their power to produce, &c. According to the letter, the persons who offer a copy, must make the oath required. If there are more than one plaintiff or defendant, then all must make it. If we consult the spirit or policy of the act, the same conclusion follows. The object of requiring the oath, was to protect the opposite party from frauds in suppressing the original, and giving in evidence imperfect copies; and unless all the parties are required to make the oath, one might suppress the original, and another safely take the oath. It is not supplied by the oath of the cestuy que tmst. The legal estate is in the trustee, who is intitled to possession of the muniments of title; and will be presumed to have them, unless the contrary is shewn.

The motion is for a non-suit, but we think a new trial only ought to be granted. The Circuit Court admitted the copy grant in evidence on the oath of one of the plaintiffs only, as plenary proof; and but for this, it does not appear but that the oaths of the other plaintiffs might have been supplied on the instant. As a general rule, I am disposed to think, that a non-suit ought never to be ordered by this Court, where a verdict has been founded on incompetent evidence; unless it appear, that the whole case is before the Court, and that such evidence cannot be supplied by that which is competent. A new trial is therefore ordered.  