#### *Whitacre v. M’Ilhaney.

Argued Wednesday, March 23d, 1814.

1. Evidence — Copy of a Copy of a Deed.* — A copy of a copy of a deed or decree is not legal evidence, if the original, or a copy thereof, could he had.

2. Ejectment — Instructions — Weight of Evidence.†-— Where a record is offered as evidence on a trial in ejectment, the court ought not to admit it to go to the jury, “to prove that the land in dispute was assigned to the plaintifffor this would be undertaking to decide not only the legality and relevancy of the evidence, hut also its weight and effect. It should be admitted, only, as legal testimony, in relation to the subject in controversy;— leaving the jury to determine what facts are proved by it.

See Keel & Roberts v. Herbert, 1 Wash. 203.

In the trial of an action of ejectment in behalf of Cecilia M’llhaney against Benjamin Whitacre, in the superior court of law for Loudoun county, the plaintiff, having first read in evidence a patent for the land in dispute, from the late proprietor of the Northern Neck, to Gidney Clarke, grandfather of Gidney Clarke the younger, dated November 23d, 1740, farther offered in evidence a document described as “a record in suit in the high court of chancery, *between*Mary Hall executrix of Upton Law plaintiff, and Mary Clarke executrix of Gidney Clarke the grandfather, Gidney Clarke the grandson, and others defendants but which appeared to be a copy, certified by the clerk of the district court holden at Dumfries, of certain papers which were copies exhibited in evidence in that court in a suit between James M’llhaney plaintiff, and Joshua Whit-acre defendant, which was determined at October term X800. The first of these was a copy certified by the clerk of the high court of chancery, of a decree, dated March 15th, 1794, directing a sale by commissioners, (any two of whom were empowered to act,) of the land in the county of Loudoun, whereof Gideon Clarke the grandfather was seised at the time of his death, and which was charged by his testament with the payment of his debts, and descended so charged to his grandson, the defendant, Gidney Clarke.” The second was a copy, certified by the clerk of Loudoun county court, of a deed, made the 8th day of May, 1796, from Samuel Love and Hugh Stuart, two of (the commissioners, to Theodorick Lee, the third commissioner, reciting the decree as bearing date on the 15th day of March, 1795, and as being in favour of Susanna Hall, executrix of Upton Law deceased, and stating that “the sale of the said tract of land was by the said commissioners advertised in the manner directed by that decree, and, upon the day for that purpose expressed in that advertisement, was exposed to sale to the highest bidder *at public auction, upon a credit of six months, and the said Theodorick Lee, one of the commissioners, having offered for the said land the sum of 24201. current money of Virginia, and no other person making any farther offer for the same, the said lands were, by directions of the said Samuel Love and Hugh Stuart, struck off to him the said Theodorick Lee,” to whom therefore they made the conveyance; on the back of which they certified that Theodorick Lee had produced a receipt from James Taylor (attorney in fact for Susanna Hall) for 24201., being the consideration within mentioned. The third was a like copy of a deed from Theodorick Lee and Catharine his wife to James M’llhaney.

To the reading of which, the defendant (“having first waived all objections that might be made because the bill was not a part of the said record”) objected ; but the court over-ruled the said objection, and permitted the said record to go in evidence to the jury ; to which opinion of the court the defendant excepted.

The plaintiff also offered in evidence a record of the proceedings in a suit in chancery between Nathaniel Davidson and Nancy his wife, Lewis Ellzey and Rosanna his wife, plaintiffs, and Margaret M’llhaney and others, defendants, brought to compel a division of the real estate of James M’llhaney deceased, among his representatives, from which it appeared that he left a considerable real estate, a widow, and nine children ; that partition was made of the land in nine portions, the widow taking a third of each portion as her dower; that the plaintiff Cecilia was one of those children; and that one of the farms allotted to her by the commissioners who made the partition, was described in their report as occupied by Benjamin Whitacre :• — to the reading of which the defendant objected; which objection was over-ruled by the court, “and the said record permitted to go to the jury, to prove that partition had been made between the said representatives, and that the land in dispute in this suit had been assigned to the plaintiff to which opinion the defendant also excepted.

* Verdict and judgment for the plaintiff; from which the appeal was taken.

Stanard for the appellant.

Williams for the appellee.

December 15th, 1814,

*

Evidence — Copy of Deed. — Tbe copy of a deed acknowledged by tbe grantor before justices, by them certified to tbe clerk for record, and by bim certified to be a true copy, is admissible as primary evidence, equivalent to tbe original. Baker v. Preston, Gilm. 235, 285, citing principal case. See further, *foot-note*to Maxwell v. Light, 10allll7; monographic *note*on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276; monographic *note*on "Deeds” appended to Fiott v. Com., 12 Gratt. 564.

Ejectment. — See monographic *note*on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

†

Evidence — Province of Court — Province of Jury. — It is elementary, and is firmly settled in Virginia that tbe court responds to questions of law and the jury to questions of fact. The court must decide on the admissibility of evidence, that being a question of law; but not as to its weight after it is admitted, that being a question of fact. The decided cases evince a jealous care to watch over and protect the legitimate powers of a jury. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the fact that when evidence is parol, any opinion as to the weight, effect, or sufficiency of the evidence submitted to the jury, any assumption of a fact as proved, will be an invasion of the province of the jury. To this effect, the principal case is cited in Brooke v. Young, 3 Rand. 114 ; Cornett v. Rhudy, 80 Va. 716; Richmond, etc.. R. Co. v. Noell, 86 Va. 9 S. E. Rep. 473; Tyler v. Chesapeake, etc., R. Co., 88 Va. 394, 13 S. E. Rep. 975. See *also, foot-note*to Baring v. Reeder, 1 Hen. & M. 154; *foot-note*to McDowell v. Crawford, 11 Gratt. 377; *foot-note*to Davis v. Miller, 14 Gratt. 3; *foot-note*to Ross v. Gill, 1 Wash. 88; monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192; mono-graphic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733; monographic *noteon*“Evidence” ppended to Lee v. Tapscott, 2 Wash. 276.

JUDGE ROANE

pronounced the following opinion of the court.

It is the opinion of the court, that there is error in the judgment and proceedings *135of the Superior Court of law in this ; that the decree offered and admitted in evidence, and stated in the first bill of exceptions, being only a copy of a copy, was inadmissible, and ought not to have gone to the jury. On the same ground, of its being a copy of a copy, the deed from Samuel Love and Hugh Stuart, two of the commissioners, to Theodorick Lee, the third commissioner, acting under that decree, if the same was offered in evidence and objected to, ought to have been rejected: and, even to the original of that deed, the other objections taken in the argument of this case, and particularly the objection, that the bargainee, being an acting commissioner under said decree, could not purchase, appear to the court very iniportant, and worthy of consideration : but, it not clearly appearing by the exceptions, that that copy was offered, and objected to, and admitted in support of the plaintiff’s title, the court refrains from pronouncing any opinion thereon; and for the further reason, that it is understood that this latter ■ question is now pending before this court, and to be decided, in the appeal from the final decree in the suit of Mary Hall, executrix of Upton Law, and Mary Clarke and others, referred to in the said bill of exceptions. (1)

The court is also of opinion that the Superior Court erred **in admitting the record stated in the last bill of exceptions, to go to the jury, “to prove that the land in dispute had been assigned to the plaintiffthe court thereby undertaking to decide, not the legality and relevancy of that evidence only, but also its weight and effect; although the same may have been legal testimony, tending to prove that fact.

Eor these reasons, the judgment of the Superior Court is reversed with costs: the verdict of the jury is set aside, and the cause remanded to the Superior Court of law for a new trial to be had therein, according to the principles herein before declared.

(1)

 Note. The appeal here mentioned was, afterwards, viz. on the 17lli of March 1815, dismissed as having been improvidently allowed ; it appearing, “that the testator of the appellant was not included in the decree, and that, of consequence, his rights not being affected, he was not aggrieved thereby.’’ — Note in Original .Rdltion.