
    Marane against Carroll.
    
      Columbia,
    1804.
    An affidavit of the loss of an original grant in order to permit an office copy of it to be given in evidence must be made by the plaintiffin. the actioiij agreeably to the words of theactof 1803, and not byany third person.
    Where the Judges are e-qunlly divided in opinion,the* partybringing the case up, takes nothing' bv his motion.
    TRESPASS to try title to land in Abbeville district. Nonsuit ordered. Motion to set aside the nonsuit.
    Oh the trial of this cause, the plaintiff’s attorney offered to read the affidavit of the plaintiff’s son, shewing the loss ©f the original grant under which his father claimed, in order that an office copy of it from the records might be read in evidence to the jury, (the father being then so old and infirm as not to be able to attend at court, for the purpose of making it himself,) agreeably to the directions of the act passed in 1803. But the presiding Judge (Grimkk) refused to admit the son’s affidavit, as the act required that the affidavit to prove the loss of the original grant should be made by the plaintiff in the action, in order to admit an office copy in evidence. And therefore ordered a non-suit, on the ground that the plaintiff had failed in making out his title.
    This was a motion to set aside this nonsuit, and to have the cause reinstated on docket for trial at the next court.
    
      In support of the motion it was contended, that the spirit and intent of the law was more to be regarded in the construction of statutes, than the strict letter. That the intent and meaning of thb act was, that the proof of the loss oí the original grant should be made, before an office copy should be received in evidence; and it was not of so much importance by whom this proof was to be made, as that the fact itself should be established before the office copy should be allowed to be given in evidence. Besides, it was more congenial to the principles of the common law, that this proof should be made by a third person not interested in the cause, than by the party himself in his own case. It was further urged, that the old and infirm situation of the plaintiff in the action, was a strong and forcible reason why the court should have relaxed in a rigid and literal construction of the act, and permitted the son’s affidavit to have been received, to prove the loss of the grant.
    To this it was answered, ;on behalf of the defendant, that the act was positive that the affidavit should be made by the plaintiff' in the action, in order to make an office copy admissible evidence, and that expressio unius pst exclusio alterius ; that there was no room for a contrary construction in this case, the act was imperative. It was also urged, that if courts of justice once begin to make the spirit of a law their rule of action, regardless of the letter of the statute, it would be opening a door for vague construction without end, which might entirely go to defeat the purposes of the law. If it was necessary to amend the act under consideration, the wisdom of the legislature would correct the evil; but until that is done, this court has no right to say that such affidavit shall or may be made by any other person than they have declared by their act, it shall be made.
   The Judges,

after deliberating on the proper construction to be given to this law, differed in opinion upon it?

Waties and Bay

held, that, as this act of 1803 was a remedial law, and in furtherance of justice, it should have a liberal construction. That the spirit and meaning of an act was the principal thing to be regarded, and wherever that can be discovered, it should be the governing principle in carrying the act into execution. That in the present case, the proof of the loss of the original grant was the thing tQ be regarded, before the office copy could be given in evidence. And whether that proof was made by the plaintiff himself in the action, or by another on his behalf, it equally answered the end and design of the act, by-establishing the loss of the original. The main fact the law had in contemplation as a prerequisite to the admission of the copy, was proof of the loss of the grant. They therefore thought the affidavit should have been received to prove this loss; consequently, that as the nonsuit was ordered for want of such proof, it should be set aside, and the cause restored to the docket.

Brevard and Lee,

thought they were bound by the terms of the act, that “ the oath should he made of the loss ef the original by the plaintiff in the action.” That it might have a dangerous tendency, to open a door for construction, where the words of the law were sufficiently plain without it. In doubtful and obscure statutes, they admitted the principle, that the spirit and meaning should be the governing rule of construction; not so, where the words of the act were- plain and explicit, as in the act under consideration. They therefore were of opinion, that the presiding Judge was regular in rejecting the affidavit offered, and that the nonsuit should stand confirmed.

As the presiding Judge (Grimke) was precluded bylaw from giving any opinion on any point which he had previously decided, the other Judges were equally divided, consequently the plaintiff took nothing by his motion.

The nonsuit, therefore, stood confirmed.  