SEPTEMBER TERM, 1771.

#### Thomas Smith’s Lessee *against*Henry Steele.

EJECTMENT for a tract of land called *Smithfeld,*lying in *Dorchester*County.

At the trial of this cause, the plaintiff, in making out his title, produced to the Court, and offered to read in evidence, a writing purporting to be a copy of the will of *William Smith,*made in the year 1709, together with letters testamentary on the said will, under the hand and seal of *Roger*Woolford, formerly Deputy Commissary of *Dorchester*County, which were annexed to the said copy of the will. And also proved, that diligent search had been made in the Commissary General’s office for probate of wills in this Province, for the original will, and also for the Copy thereof, but that nothing could be found except an inventory of the estate of said *William Smith,*dated the 8th of *October,*1711, in which his wife was styled executrix. And the plaintiff also produced a witness, to prove that the name of *Roger Woolford,*subscribed to the said letters testamentary, and the copy aforesaid, was, in their belief, the hand-writing of the said *Roger Woolford,*who, it was admitted, was Deputy Commissary of *Dorchester*County, at the time when the said letters bear date, and did insist that the same was proper evidence to go to the Jury, to establish the said will, so as to transfer the land in question to the devisee therein mentioned. The defendant objected to the evidence.

*420
      *Hall^*for defendant.

In the infancy of this Province, there were no testamentary laws ; probates now are taken only under the laws of the Province; this will, therefore, must stand or fall by the acts of Assembly. By the old act of 1704, for taking probates of wills, the Commissary General is made the sole judge in testamentary matters. All wills, though proved before the Deputy Commissary, were always transmitted to the Commissary General’s office, to be recorded. This will should have been so transmitted to be recorded. A record then, can only be proved by itself, or by an attested copy from the proper officer. If this paper were admitted as evidence, in every instance a paper having the signature of the Deputy Commissary would be admitted in evidence. They should have proved that a will once existed, and then have produced a copy of it from the records under seal; instead of that, they presuppose an original will, and then that this is a true copy of it. In the year 1707, an act was passed, to aid defects of this nature, where the originals by accident had been burnt while in the keeping of the Deputy Commissary, by admitting copies to be recorded, and to have the same effect as originals.

Goldsborough, for plaintiff.

By our act of Assembly, the jurisdiction of the Chancery and Ecclesiastical Courts, are blended and united in this Province. In England, the copy of a probate of a will is good evidence where the will itself is of chattels, for there the probate is an original, taken by authority, and of a public nature ; *aliter*where the will is of things in *the*realty, because there the Ecclesiastical Courts have no authority to take probates; such probate therefore, is not evidence. 12 *Fin. Abr.*100. pi. 30. 33. 101. pi. 40. 102. pi. 52, 49. *Skinner’s Reps 584. 43 h*1 *Raym. 154..*744. 3 *Salk-*
      *421.154. *Comb.*248. 337. *Gilb.*Evid. 72, 73. 1 *Raym.*252, 263. 4 *Burn. Eccles. Law,*181, 182, 183. Our act of Assembly of 1715, gives the Commissary authority to take probates of wills relating to lands, therefore it is agreeable to the reason of the cases cited, that the probate or the copy of the will, under the hand and se al of the Deputy Commissary, (who is the proper officer,) should be received in evidence. For the probate is nothing- more than a copy attested by the proper officer. *Fid. Wood's Inst.*341. (or 325. last edition.) *Gilb. Evid.*72, 73. which say, that the probate of a will is a copy of the original, delivered to the executor under the seal of the ordinary, the will itself being exhibited in the office belonging to the Ecclesiastical Court, to be there kept by the register. 4 *B. E. L.*18 Í. The reason why probates in the Ecclesiastical Court in *England,*are not evidence of a devise of lands, is because that Court has no power to take such probate; but in this Province, the Commissary or his Deputy, has such power. *Ergo,*such a probate must be evidence. If it were not, great inconvenience would arise, for after the party had done all that the law required of him, by proving the will, and leaving the original in the custody of the proper officer, the Deputy Commissary might lose the original will, or neglect to transmit it, when, if the rule contended for,, should prevail, the party would be left without remedy. It cannot be expected that after the lapse of seventy years, that the plaintiff should be able to prove the existence of the original will in any other manner, the witnesses being-dead. The probate of a will is good evidence in an ejectment, where the original is lost, and so is the register’s book. *Per Holt,*1 *Raym.*751. 12 *Vin. Abr. Evid.*98. pL 9. 1 *Stra.*412, 413. *Skinner,*174. A copy of a will which has been lost, is good evidence. *Allen,*54, 55. *Vid.*Swinburn, 450, 451. *T.*Jones, 146. So if the will be lost, it may be proved by witnesses. Swinb. 451. 1 *Ca. Eq, Abr.*402. So if it be burnt or tom to pieces, it may be proved by witnesses. 8 *Vin. Abr.*tit. *Devise,*119, 120. £ *Fern,*441. 1 *Ca. Eq. Abr.*402. The copy of a will of *422lands, under the seal of the ordinary, is not evidence, but if you prove the hand of the officer who made the copy, it js good evidence. *Clayton's Rep.*90. *57.*Where a record is lost, it may be proved by parol evidence to the Jury. 1 *Vent. 257.*A record which has been burnt, may be proved by other evidence, *Hard.*323. In this case there was an inventory returned, in which the wife is styled executrix, which could not be, unless there had been a will. The act of Assembly does not direct the Commissary General to record wills, but to take the probate of wills, though it concern lands. *Act 1715,*c. 39. s. 2. By s. 29. the Deputy Commissary is empowered to take probate.

*Hollyday,*same side.

This is a case of great importance; for as the original wills are left in the hands of the Commissary, accidents may often happen to them from neglect, or some unavoidable casualties in the transmitting of them to the Commissary General, when proved before the Deputy Commissary. The act of 1707, c. 9. shews, that by the ordinary course of transmitting wills, they are subject to casualties. It is a matter of importance in the settlement of estates; for if the will happens to be lost, it will be contended the testator died intestate, and the property would not pass agreeably to the will of the testator. Where there is jurisdiction, the law gives credit to the acts of the officer, and admits his probate as evidence. *Skinner,*431. 583, 584. 174. *Gilb., Evid.*24. The act of 1704, c. 20. gives power to the Deputy Commissary to take probates, although it concerns lands, which removes from this case the objection made to probates out of the Ecclesiastical Court in *England.*We propose to give the best evidence the nature of the case admits of, and more cannot be required, *Gilb. Evid.*4. 16. We shew that search has been made, and that no original will is to be found, and then we produce the probate, and make it appear that it was granted by the Deputy Com«missary.

*423
      *Johnson,*for defendant»

The practice of Courts is evidence of the law» It has always been the practice in this Province to produce the copy of a will from the record. The inconvenience sup» posed has never happened; for it has never been necessaiy in this Province to prove a will by any other method than by producing the original will, or an authentic copy under seal from the Deputy Commissary’s office. The plaintiff’s counsel, in this instance, propose to prove the hand-writing of the Deputy Commissary; but if this doctrine is once established, we shall next have old copies offered in evidence, without any such proof of the hand-writing of the officer. Originally in *England*there was a contest between the Ecclesiastical Courts and the Courts of Common .Law about the taking of probates of wills. Where the will eoncerned both real and personal property, the Common law Courts granted prohibitions absolutely against the Ecclesiastical Court taking any probate. Afterwards prohibitions *quoad*the real estate were granted, but at length the Ecclesiastical Courts were allowed to take probate of wills concerning both real and personal property, but the probate concerning the lands was rejected by the Common Law Courts as being no evidence. About the time that the law was thus settled in England, our first acts of Assembly upon the subject were made, and the same construction has ever prevailed here, that under the words of the ■act, the Commissary should give probate as it related to personal property, although the will contained a disposition of real estate. If this probate be evidence, though in An-*gland*such probate would not be evidence as to the real estate, such doctrine would take away the power of juries, who are the proper judges upon the issue *devisavit vel*non» There would then be no need of producing evidence as to the execution of the will, and thereby the Commissary General would have a power almost absolute respecting wills, and such a power as was never intended by the act of Assembly. No inconvenience would follow from this doctrine ' contended for; for wilfe when lost might be established *t&.*
      *424a Court of Chancery, and the heir at law, on proof of the loss, would be compelled to convey the estates as the will had directed. But, on the other hand, fraud might be introduced by producing old copies as evidence.

*Jenings,*
      *(a)*
      **for plaintiff.

Whether a will was made is a matter of fact; but the construction of a will is a matter of law; therefore the first is determinable by a Jury, the latter by the Court. The legality of evidence is a question of law; of the sufficiency of that evidence, the Jurors are the sole judges; therefore, if it appear that the proposed evidence in this case be legal, the sufficiency of it is immaterial, for of that the Jury are the sole judges. The objection to it is grounded on the rule, that the best evidence the nature of the thing will admit of, should be produced. They say a copy from the record should be produced; and that being better evidence than the copy certified by the Deputy Commissary, the latter should not be admitted. When we speak of the best evidence, we should agree in our explanation of it. The farther evidence is removed from the fact, the weaker it is in legal idea; and the more immediate relation it has to the fact, the better it is. A copy, therefore, from a copy of a will, is not so good evidence as a copy from the original will; therefore the evidence now contended for is, according to the rule, better evidence than that which it is contended ought to have been produced below ; for the record is a copy from the will, and the certified copy from the record would be a copy of a copy. It was, therefore, formerly debated, whether a copy from the record should be admitted as evidence, as the party might procure an immediate copy from the will itself, tested by the proper officer. In *England*there are two ways of proving a will to have been executed as to personal estate. 1st. By pro*425ducing a probate of the will* 2d. By producing a copy from the record. The probate of a will is nothing more than a copy of it certified by the proper officer. *Wood’s Inst. 325.*341. *Gilb. Evid. 72, 73.*Those probates are made in *England*by the ordinary, or by his surrogate. The ordinary is so called from his having the common ordinary jurisdiction, and is generally the bishop. The surrogate, as the name implies, derived, from *surrogatus,*is his deputy. These answer to our Commissary General and his deputy ; and to prevent disputes, the law particularly empowers the Deputy Commissary to take probates of wills. Where a law gives power to an officer, it gives credit to his acts. Gilb. *Evid. 27, 72, 73.*Skinner, 431. *Wood’s Inst. 325.*341. 1 *Raym.*262. 154. Probates in *England*are not evidence of a will respecting land, because there is no authority to take *them; ergo,*if there was authority, they would be good evidence. Here the Deputy Commissary had authority. Suppose a will was proved before the Commissary General, would not his probate have as much effect as a copy from his book, with a certificate that he had recorded it, and that the writing produced was a true copy ? for any immediate copy certified by him would be entitled to as much credit as the copy of a copy. 2d. There is no law obliging a Commissary to record wills; but it being the practice of the office, a copy of the record is admitted as evidence. It is just as much the practice of the Commissary to grant probates of wills, therefore they are evidence. It may be said, that, if the probate is conclusive as to real estates, it would prevent an inquiry into frauds on the issue *devisavit vel*non. But a reasonable effect may be given to this probate, and yet the matter may be left for trial, by construing the probate presumptive evidence as to the lands. By the laws of *England,*neither the probate of a will, nor a copy from the record of the will in the Register’s book, is any evidence in ejectment, but the original will must be produced. But a copy from the record in the Register’s book is evidence of a will respecting personal estate, because the Court has a *426jurisdiction respecting it. A copy from the Commissary’s or Register’s book, it is admitted, is evidence here of a devise of lands, because an act of Assembly gives him a power to take such probates; for if we proceed strictly without regard to this act, a copy from the record could, not be evidence in these cases. When a copy from the record is produced, it is presumptive evidence in those cases, but the other party may be, admitted to prove fraud. The probate of a will in England, and a copy from the Register’s book, are in equal degree in point of evidence. So here we contend a copy from the record and the probate are in equal degree, the copy from the record being only presumptive evidence, and so ought a probate of the will to be. It will be more reasonable to give reasonable efficacy to the officer’s certificate, than to construe his act as a mere nullity. The Commissary does not derive his power respecting wills of personal estate from an act of Assembly: the line of his duty is not entirely marked out by that law; but where the act has not made provision, he is to proceed according to the laws of *England.*By the law of England, as ordinary, he is sole judge in testamentary matters respecting personal property, and having a judicial power, when he has executed his act is concluí sive; therefore the probate in these instances is conclusive evidence. By the law of *England*he has no judicial power respecting a devise of lands. The Commissary has no judicial power given him by our act of Assembly.

The rule of evidence is to oblige parties to produce the best in their power, but not to compel them to perform impossibilities. When it is said, then, that a record must be produced, it must mean if the record be in *existence;*for no rule of law can be fraught with so much injustice and absurdity as to command what cannot be done. It is said a copy from the record must be produced ; but'that must suppose the record to be in existence, for if it be lost, then the next best evidence is admissible. 1 *Raynn 731. 1 Stra.*412,413. *Allen,*54, *53. T. Jones,*146. *Vaugh.77.*Vin. *EAd,*284. 1 *Salk.*285. 2 *Bac. 307,*308. *Corny ns,*531. *4272 *Stra.*1109. 2 *Ray.*1292. *Skin.*15. *Gilb. Evid.*56. 65. The records are not in the party’s keeping, they are subject to many accidents ; and unless evidence of this nature be admitted, it will be of great injury and ruin to the Inhabitants. For instance, if a man has the copy of a patent, and the original should not be found on the records of the land-office, it might with equal propriety be contended it was not evidence. And yet numbers of patents were granted in former times, which do not appear on record, and some of the land-office books are lost. Suppose a copy was produced purporting to be a true copy from the records, certified by the proper officer, and yet the will was not to be found on record. It is admitted every day, for it is to be presumed there was such a will, otherwise a copy from the record could not have been procured. So here. And the evidence offered too is drawn nearer the source, for in the instance put it would have only been a copy of a copy. But this is an immediate copy from the original will itself.

These appear to have been notes for argument in the Court of Appeals.

*The Court*declared themselves to be so far satisfied with the evidence offered by the plaintiff, that they were of opinion, that the letters testamentary, and writing thereto annexed, ought to be read in evidence to the Jury, on which the jury might or might not, according to their own opinion of the weight and fulness of such proof, find the said writing to be a copy of the last will of *William Smith;*and the Court did thereupon allow the said letters testamentary and writing to be read in evidence to the Jury. The defendant excepted to this opinion, and appealed ter the Court of Appeals, where the appeal abated.