
    Bailey Barton v. Wm. L. Keith and Allen Keith.
    
      Tried before Mr. Justice Butler, at Pickens, Fall Term, 1834.
    
      fwo i“stioes beingofthoquo* j^eomuutmenT hail a prisoner thoíaSon thore-turn of the wur-hensio°í t ?torse of p“s?mg- counterfeit money.
    two justices of whom'V’of tie ij“1“'u™;.sonsmarr rested «wmspif offences not haul forbidden to bS bailed br lho (aEdTofis)— Pa.?in? “““i01-an offence therein forbidden to be bailed; and if it were, to exclude one from bail under this stat., he must not only be charged •with felony, but on his examination there must appear a violent presumption of guilt ,* and whether this was the case, the justices are to judge.
    
      This was an action of trespass to try titles to ten tracts of land, numbered 1, 2, 3, 4, &c. The plaintiff claimed under a purchase at sheriff’s sale, at which the lands in question were sold as the property of Moses Hendrix; and the defendants claimed through John O. Hendrix, the son of Moses. The questions were whether the sheriff had legal authority to sell; and it so, whether the title was in Moses Hendrix at the time of the sale, or in John O. Hendrix and those claiming under him.
    To support the plaintiff’s title a recognizance to the State was given in evidence, taken by two justices, one of whom was of the quorum, executed by one John Harris, and Moses Hendrix, for $1000, dated 5th April 1831, conditioned for the appearance of Harris at Court, to answer to a charge for passing counterfeit money. It did not appear that there was any commitment; the magistrates had taken the recognizance on the return of the warrant when the prisoner was brought before them. Harris did not appear, and a scire facias having issued and been returned, at October Term, 1832, the rocogni-zance was ordered to be estreated in the following words: *• on motion, ordered that the recognizance ot-- Hams and Moses Hendrix, be estreated.” A writ of fi. fa. was lodged Dec. 1832, under which the lands in question were sold to the plaintiff, in February, 1833, and a deed executed to him by the sheriff in April following. The only seal affixed to the fi. fa. was a wafer covered with a piece of paper. The clerk had received a seal a short time before, but for many years there was none, and it was the invariable usage of his office to seal all process operating in the State with a wafer, and to affix the seal of the Court only to copy records sent out of the State.
    Objections to the validity of a recognizance come too late aftor it has been estreated.
    An order es-treating a recognizance omitting the Christian name of one of the cognizors, is sufficiently certain, especially when connected with the sci. fa. in which tlie names are fully set out, and to which no answer was filed.
    Where it is the usage of a Court to affix a wafer to its process as a seal, this will be suflicient to give validity to a fi.fa., until the usage is changed by order of the Court, adopting a different seal.
    When the original deed can be produced the grantor cannot prove the execution : but where the original deed Ims been destroyed, and the witnesses to it are dead, or without the ¿3tote,thegrantor will be a competent witness to prove the execu-
    As to tract No. I, it was admitted that the title was in Moses Hendrix in 1821, when it was sold under execution and purchased by one Algood, and the titles made to David Hendrix, (the brother of Moses) who conveyed it to John 0. Hendrix, and he conveyed to the defendants: hut Moses paid Al-good’s hid, and continued to reside on the land from that time until this. Much evidence was given in relation to the character of this sale, which, under the opinion of this Court, it is unnecessary to detail.
    As regards tract No. 2, it was admitted that the title was once in John Stephens. After Stephens left it, Moses Hendrix rvent into possession, but did not remain long enough to acquire title by possession. A deed from John Stephens to John O. Hendrix, dated Sepf. 1832, constituting a link in the defendant’s title, was admitted to be voluntary, and in order to prove that it was fraudulent, and that the title was in Mosos , when the levy and sale under which the plaintiff claims was made, John Stephens was introduced as a witness on the part of the plaintiff. Ho testified that when John O. Hendrix applied to him to sign the above deed to him, he refused to do so, unless a deed which he some years before executed to Moses Hendrix was given up ; that his deed to Moses was delivered up to him and destroyed, and ho then executed the one to John O. Hendrix. There were two witnesses to his deed to Moses, one is dead, and the other in parts unknown. It was objected on the part of the defendants, that this witness was incompetent to prove the execution, loss and contents of this deed; but the presiding judge held him competent. It is not necessary to state the evidence in relation to the other tracts.
    When the evidence on the part of the plaintiff closed, a motion for a nonsuit was submitted, on the grounds :
    1. That the magistrates had no authority to take the recognizance, inasmuch as the prisoner was charged with a capital felony ; it was therefore void and could give no authority for the sheriff’s sale.
    2. That the order estreating the recognizance is vag ue and indefinite, — does not refer to this recognizance, fix the a mount for which it shall estreat, or order execution to issue.
    
      3. That the fi. fa. is void for want of the seal of the Court.
    These grounds were overruled and the motion refused. His Honor charged the jury in relation to tract No. 1, that if the purchase by Algood and the execution -of the title to David', was a bona fide transaction, and for a valuable consideration the defendants were entitled to this land: but if they should believe that the transaction was merely colourable and intended to defraud the creditors of Moses Hendrix, that they should find for the plaintiffs.
    The jury found a verdict for the plaintiff for both tracts..
    The defendants appealed and renewed their motion for a nonsuit, on the grounds taken below, and failing in that, for a new trial on the following grounds :
    1. That the title of David Hendrix derived from the sale under-execution in 1821, was bona fide and for a valuable consideration.
    2. That John Stephens was an incompetent witness to prove a deed executed by himself.
    
      Burt, for the motion.
    As to the first ground for nonsuit.. The recognizance to be valid must have been taken by the authority prescribed in the habeas corpus act. Justices of the peace are not by that statute authorized to enforce its provisions; it is only by the act of 1712, P. L. 21, that they are authorised to execute the habeas corpus act; but by the terms of the latter act, where a felony is distinctly charged in the warrant, the offence is not bailable, at least not by justices of the, peace. Dyer 221. 5. Jacob L. D. 895. At common law magistrates might bail in any case, but their authority was restricted by the statute 3 Ed. 1 c. 15, and they are not permitted to bail for the offences therein enumerated, among which are named “such as are taken for false money,” 1 Chit. Cr. Law, 92, 98. The recognizance, then, was taken by persons without authority, and is therefore void. There is a difference in this respect between a mere irregularity which may be cured by the subsequent waiver of the party, and a want of jurisdiction in the justices ; for, in the last case, the act being absolutely void; cannot be affirmed or made good by any act or omission of the party against whom it is to operate; and therefore, if the recognizance is void, the mere neglect of Hendrix to take this objection on the return of the sci. fa. could not give it effect. The second ground was submitted without argument. On the third ground, he insisted that the fi. fa. being the authority of the sheriff to sell, must be signed by the clerk and have the seal of the Court affixed to it. 2 Faust 314.
    On the motion for new trial. The first ground being a question of fact was not urged. As to the second ground, he cited and commented on, 1 M’C. 466 ; 2 Bail. 91; 4 M’C. 253 ; 2 M’C.138; 2 Bay 464.
    
      Waddy Thompson, contra.
    The restriction on the power ^ jugt¡ces ¡g where “treason or felony is plainly and distinctly set forth in the warrant of commitment.” But in this case there was no warrant of commitment, nor was the charge plainly set forth in the warrant of apprehension. The magis. trates, then, had the right to bail. But the objection comes too late : it should have been made when the recognizance was about to be estreated, 1 Con. Rep. 105; Smith v. Alston. The order for estreating the recognizance was sufficiently definite in its terms, and as to the sum for which it should be es-treated, it will be intended to mean- the whole, unless otherwise expressed. And as for the fi. fa. being sealed with a wafer, it was sufficient if such was the usage, and it was recognized as the seal of the Court. 1 Brev. Dig. 223.
    On the grounds for new trial: — As to the first — the fraud was clearly proved, and it was a question for the jury : and as to the second ground, the grantor was competent because it was the best evidence which the case would admit of. If the original deed could have been produced, and the subscribing witnesses were within the jurisdiction of the Court, it will be conceded that the grantor would be incompetent; but where the deed has been destroyed, and the witnesses are dead or removed, the evidence of the grantor is the next, and the highest which can be produced.
    
      Whitner, same side.
    The magistrates might bail in this case under the 'habeas corpus act, which they are authorised to enforce by the act of 1712,, P, L. 21, because the felony is not plainly set forth in the commitment; and the offence charged is not one of those in which justices of the peace are restrained from admitting to bail. The act of 1787, P. L. 420, declares that a recognizance shall be good and effectual if acknowledged b.efoi'e a judge or justice of the peace. But the party is estopped by the order of estreat. 6 Dane’s Ab. 474. On the second ground for new trial, he cited 1 Mass. Rep. 498, 500 ; 12 lb. 439; 6 T. R. 401; I Hill 415.
   O’Neall, J.

It is said by the presiding judge in his report, that “it did not appear there had been any warrant of commitment : the magisti ates took the recognizance on the return of the warrant of apprehension, and when the prisoner was brought before them for commitment.” This statement of facts divests the first ground taken for nonsuit of all difficulty, even if the defendant could make the objection after the order of estreat. Under the Statute 31, Car. 2,, sect. 3, persons charged with treason or felony, plainly expressed in the warrant of commitment, ave not entitled to the benefit of its provisions. If, therefore, the prisoner had been committed under a distinct eharge of felony, two justices who, by the provisions of our act making of force the stat. SI, of Car. 2, are authorized to grant writs of habeas corpus, would not have had the right to let him to bail.

But, it appears to me,, that the 3d. sec. of the 1 and 2 P. & M. c. 13, provides for the case in which the justices did act; and that they were at liberty on the return of the warrant of apprehension, in the exercise of a legal discretion, to bail the prisoner. It provides “that any person or persons arrested for manslaughter or suspicion of manslaughter or felony, being bailable by the law, shall not, after the said first day of April, be let to hail or mainprize by any justice of the peace, if it be not in open sessions, except it be by two justices of the peace, at the least whereof one to be of the quorum,” &c. The question is, under this clause of the statute, who are “bailable by the law ?” The first clause of the same statute declares, that “no justice or justices of the peace shall let to hail or main-prize, any such person or persons, which for any offence or offences by them or any of them committed, be declared not to be replevised or bailed, or be forbidden to be replevised or bailed by the statute of Westminster primer made in the Parliament holden in the 3d year of the reign of King Edward the First.” The offence charged in this recognizance is not one of those forbidden to be bailed- by the statute, of Westminster ; indeed it is not distinctly provided for at all, by any of its provisions. It may or may not be a felony; for to- pass counterfeit money without knowing it to be counterfeit, is no offence at all. To exclude the prisoner under the words of the statute of Westminster, asoné forbidden to be bailed,he must have been not only charged with felony, but on his examination there ought to have appeared a violent presumption of his guilt. Who was to judge whether this was the case. Unquestionably the justices before whom he was brought for commitment ? Again, is the prisoner entitled to be bailed under the directions of the statute declaring who shall be bailed ? The words under which he could claim are “of light suspicion.” Who must judge whether it be a light suspicion of felony of which he is charged ? The justices who examine the prisoner, is the answer. They ought not to bail if there are good grounds to believe the prisoner to be guilty of felony. But, if they err in this respect, it is an error in fact and law, and not in jurisdiction, and the recognizance would be good. 1 Chitt. Crim. Law, 96, 97.

If, however, there was any thing in this objection, it could not avail the defendants. It is res judicata against their privy xu estaÉe! and must be so against them. When the scire facias was returned, the defendant was to shew cause, if any he had, “why judgement should not be coifirmed against him.” Having failed to make the objection then, he is concluded by the 01'der of the estreat, which is the confirmed judgement by recognizance, or more properly speaking, judgement upon the recognizance, State v. Morgan, 2 Bail. 602.

The objection to the order of estreat was not insisted on, and indeed it could not avail the defendants in any point of view. For it was sufficiently specific as against Moses Hendrix, in its words, and when connected with the sci. fa. admitted to have been issued and returned, it became sufficiently certain against both Harris and Hendrix ; for it is then a part of the proceedings, had on the very recognizance under consideration.

It is a sufficient answer to the ground for nonsuit then, to say, that, to give validity to th eft. fa., it was not necessary that any particular kind of seal should have been used. Whatever was the usual and customary seal of the Court was sufficient. The proof very clearly shews that the execution was sealed according to the usage of that Court; and until that usage was changed by the Court directing a different seal to be adopted, the clerk acted right in sealing as he did in this case.

The first ground for new trial was a mere question of fact, and with the verdict of the jury we are well satisfied. The second ground makes the question, whether, under any circumstances, a grantor can be a competent witness to prove his own deed ? The general rule is very clear, that where the original deed is produced, the grantor cannot prove the execution. Barry v. Wilbourne, 2 Bail. 91. But where the original deed cannot be produced, the rule does not apply. The best evidence cannot, in the nature of things, be produced, and secondary evidence of necessity must be resorted to. In a case like the present, if the person who executed and destroyed the deed cannot be allowed to prove its execution, it is not probable that any evidence could be obtained which would prove it. But in such a case there is no rule excluding him from being a witness, and from necessity he must be allowed to testify,

The motions for nonsuit and new trial are dismissed.

Johnson and Harper, Js. concurred. 
      
      
         In connection with this point, the reporter will briefly state a decision in relation to this subject, in the case of The Executors of Hill v. Hill, at Columbia, May 1829.
      On the trial of the case, a copy of a deed, (not recorded) the original of which was proved to have been lost or destroyed, was received in evidence on the part of the plaintiffs, on proof by Mr. Clendinen that he once had this deed before him in drawing the will under which the plaintiffs claimed ; that he knew the hand writing of the parties, and believed it to be genuine; that observing it was skilfully drawn, and by an eminent conveyancer, (Mr. Hooker) he copied it into his form book, which was the copy offered in evidence; and that Wm. E. Hayne, of Charleston, was a subscribing witness. On appeal to this Court, it was held, that in the application of the rule which requires the best evidence of which the case is susceptible, Mr. Hayne the subscribing witness, being within the jurisdiction of the Court, should have been examined : That proof of the execution by the subscribing witness is entitled to more credit than that derived from-mere recollection and knowledge of hand writing. Delivery, too, is necessary to the perfection of every deed, and of this he might speak with more confidence, that the mode of proof adopted here exposes the party to imposition from forgery, which the examination of the witness would be calculated to prevent. And although the Court cannot know that the subscribing witness will recollect the execution and contents, yet according' to the reason and nature of things, the most reasonable conclusion is, that he who is a party to a transaction, and from that circumstance called on to treasure up in his memory all the minutim connected with it, would be more likely to retain them, than one who obtains his information from a secondary source, and is therefore to be preferred. That the evidence of Mr. Clendinen was therefore improperly admitted — and a new trial was ordered on that ground. R.
     