#### *John Dowling et al. ads. John Hodge.*

Where proceedings were instituted in the Court of Ordinary, for partition and sale of real estate, and the citation or summons issued by the Ordinary, with the probate of service and return, never has been recorded or returned to the Ordinary’s office, parol evidence is admissible to prove its existence &c., in an action of trespass *guare dmwm fregit.*

*Before*Richardson, J., *at*Gillisonville, *Fall*Term, 1841.

The subjoined report of his Honor, with the grounds of appeal, furnishes the history of this case and the points in issue between the parties.

This was an action of trespass to try title to a tract of land, marked C., on the plat adduced.

The plaintiff shewed a grant to Theophilus Barnes, October, 1793, for 400 acres, who was in possession 40 *210years. In 1818, he divided the tract into four parts, “A. B., C. and D.” He gave A. B. and D. to his children, and retained C. After the death of Theophilus Barnes, proceedings were had before the Ordinary ; the land (C.) was sold and purchased by John Hodges, the plaintiff; sheriff’s title to him 3d August, 1839. The tract, C., was located, and the trespass proved.

The defendant’s counsel made objections to the regularity of the proceedings before the Ordinary; which were all overruled. $

The defendant also set up title by possession: and proved a very long possession. But I considered it plainly permissive, and not adverse to the plaintiff’s title. And accordingly, I charged the jury that the title of the plaintiff was plain and legal; that none of the supposed irregularities in the proceedings before the Ordinary, could invalidate the sale made by the sheriff to him.

That the long possession proved by the defendant, appeared to me to have been by the permission of the grantee ; and if so, it could not give the defendant title by possession. But the jury were the final judges, whether such possession had been permissive or adverse.

The jury found for the plaintiff, and the defendant appeals, on the fifteen grounds annexed.

These grounds require a narration of nearly the entire evidence, as noted from the proceedings before the Ordinary; and also, oí the manner of the defendant’s possession of the land. The evidence is as follows,

*Eoidence.*

1st. Grant to Theophilus Barnes for 400 acres, Oct., 1793.

2d. *Thomas Manker.*Grantee was in possession 30 or 40 years. In 1818, he had the *land*divided *into*four parts, A. B., C. and D. — C. he retained, and gave the rest to his children.

3d. Proceedings in the Court of Ordinary to divide, «fee.

First, citation, (but service does not appear.) Second, order to sell, April, 1838. (These are from the Ordinary’s record book ; originals not produced.)

■ 4th. Title of sheriff to John Hodge, 3d Aug., 1839.

*211
      *W M. Hogarth:*saw the citation, and witness took the oath of W. Mulligan that he served the citation on John Dowling and wife.

*R. G.*Norton, Ordinary: Has searched and cannot find the original citation or summons; he finds the petition.

*Thos. Manker:*has seen the original citation in hands of Mulligan, and his affidavit of service. (The competency of this evidence and Hogarth’s, objected to.) Grantee sold A. — B. was given to a son, and D. to Jas. Dowling, son of defendant; B. was the Eastern, and D. the Western boundary of C.

*Gross-Examined:*Witness was present when the Ordinary gave the order of sale to the sheriff, and Dowling objected.

Dowling had part of the land in cultivation, and had permission to cultivate it. Dowling had it in cultivation for 15, certainly 10 years.

*W. M. Hogarth:*Knows the land, (fee., has seen James, John, and Madison Dowling at work on it. Hodge forbid their working on it; said if Hodge bothered him he would split his head with his axe.

*Defence■*— Possession.

*John Barnes:*John Dowling has lived where he does now 25 or 26 years; he has claimed C. by permission of grantee up to this time. Grantee told Dowling to cut timber, clear it, and keep it till he called for it.

*Cross-Examined:*Defendant lived on Jas. Dowling’s part, and cultivated C. 3 or 4 acres; C. belonged to Barnes, the grantee ; it was called his, and defendant had to it till he called for it.

*Olive*Barnes, daughter of grantee: Defendant did not claim G. as his own, but had permission of her father to cut and use it. It always passed for his ; her father lived on the land where Hogarth lives.

Note. — Defendant, John Dowling, married grantee’s daughter; James and Madison Dowling are grantee’s grand-children.

*Grounds of Appeal.*

1st. Because his Honor permitted the plaintiff to intro*212duce in evidence proceedings in partition before the Ordinary, without a summons regularly returned as served.

2d. Because his Honor ruled that these proceedings were a good record, when the foundation, namely, the “summons” or “citation,” was wanting.

3d. Because it being proved the original papers were not to be found in the Ordinary’s office, his Honor permitted the plaintiff to go into secondary evidence, without his having proved their loss or destruction.

4th. Because the next highest evidence to the originals, is the Ordinary’s record book, and the Court should have admitted no evidence beyond it.

5th. Because the Court permitted the plaintiff to go into parol testimony of the existence and service of the summons or citation.

6th. Because his Honor permitted the plaintiff to prove by a witness, that he had heard the man who served the summons say he served it, when there was no evidence that the person serving it was out of the reach of the process of *subpoena.*

7th. Because his Honor ruled that the Ordinary’s proceedings were collateral, whereas they constitute a distinct link in the plaintiff’s chain of title.

8th. Because his Honor charged that the judgment of the Court of Ordinary could not be controverted.

9th. Because his Honor charged that the proceedings appeared to be regular, and the defendant was bound to shew they were irregular; whereas they were irregulay on their face.

10th. Because it was proved that the defendant objected to the sale and proceedings in partition before the Ordinary, and the Ordinary recites that “no objection was made,” which in itself proves an irregularity.

11th. Because his Honor charged the jury that this case differed from Sumner and. Murphy, (2 Hill 488) — so as not to be governed by it.

12th. Because the defendant made out a clear case of statutory possession, whereas his Honor charged the jury that he had failed to do so.

13. Because it was proved that the defendant, John Dowling, went into possession under these words from his *213father-in-law: “take the land, use it and clear it, plant it, and keep it until I call for it.” That he never called for it, and died without doing so. That 22 years elapsed between John Dowling’s going into possession on this permission, and the bringing of this suit, which established a presumption of a gift.

14th. Because as against James T. Dowling and Madison Dowling, this was strictly an action trespass *quare clausumfregit,*and it was absolutely necessary to prove entry and possession to maintain an action; and the plaintiffs failed so to do.

15th. Because the verdict was in other respects contrary to law and evidence.

*W. F.*Hutson, for the motion.

The proceedings before the Ordinary are a distinct link in plaintiff’s title. The citation not being produced, it is not a record. *Miller vs.*Alexander, 1 Hill Ch. 27 ; *Ordinary vs. Condy,*2 Hill 313. The sentence or decree of the spiritual Court is not conclusive ; all the proceedings must be produced. 1 Esp. 5, Duchess Kingston’s case, 1 Leach’s C. C. 146; 1 East. P. C. 468. The citation being absent, no secondary evidence could be adduced, unless its actual loss or destruction was proved.

The next highest evidence was the Ordinary’s record book; and as that did not shew service of the citation, nothing beyond could be admitted.

If the Ordinary’s book had been destroyed, the next highest evidence was the person who served the citation. Yet the Judge permitted the magistrate who swore him to the service, to testify that he had done so. This was, however, a clear case for the Court to presume a grant or title from Barnes to defendant. See *Sumner and*Murphy, 2 Hill 488, and the circumstances of this case, as presented in the report. No entry and possession was proved in plaintiff; and this is necessary to support T. Q,. C. F. 3 McC. 422 ; 1 Bail. 306; 2 Hill 466.

*W. E.*Martin, contra.

The decision of the Ordinary, and the regularity of the proceedings on which it is based, cannot be enquired into in this collateral manner. McMul-*214Ian 85; 1 Bailey 25. If, however, the want of service was an objection to the strength of plaintiff’s title, that service was fully proved by the magistrate, before whom service of the summons was sworn to, viz: Wm. Hogarth.

Curia, *per*

Richardson, J.

The mere facts of the case have been well disposed of by the verdict. The plaintiff had unquestionable titles from the grantee down to himself, to justify the finding. The objections are to the introduction of the Ordinary’s record book to justify the order for the sale of the grantee’s land, which the plaintiff purchased from the sheriff. The only original paper wanting, was the Ordinary’s citation, and the return of the service, so as to bring the case legally before the Ordinary for judgment in partition. All the original proceedings after citation, were recorded in the record book.

To justify the evidence of the citation, as set out in the record book, the Ordinary swore he had searched for and could not find the original citation, but found the petition for the partition of the land. But the service or return of the citation was not set forth in the Ordinary’s record book. To supply this, as the citation and return on it were not to be found, Hogarth was allowed to prove that he had seen the citation in the hands of Wm. Mulligan, and that he made probate of the service before the witness; not that he had merely heard Mulligan say so. Thos. Manker swore he had also seen the citation in the hands of Mulligan, with his affidavit in the probate annexed; not that he had merely heard him say he had served it; and also, that John Dowling was present when the Ordinary gave the order of sale to the sheriff; and when Dowling objected, but not for want of citation; he claimed the land. Upon this secondary evidence, the Court held both the citation and the service legally proved; and that the Ordinary’s record book proved the subsequent proceedings before him ; the book being itself the original record of such proceedings.

This cannot be questioned. It is equally clear that the citation and probate of service having been lost, the evidence that they once existed, was very competent to supply the loss. The Court can lay down no im*215perative rule for the introduction of such secondary evidence. All secondary evidence is of itself a departure from the strict rules, from necessity, and must depend upon the infinite variety in the position of cases, where the best evidence has been lost.. But the suppletory proof of this case is full and satisfactory.

The motion is, therefore, dismissed.

We concur. Josiah J. Evans, A. P. Butler.