Tj*JECTMENT. On the trial the plaintiff offered to give in •*-* evidence the registered copy of a deed to the person under whom he claimed. The dispute depended upon a line being either N. 5 £. or 45 E. If the former, the land in controversy belonged to the plaintiff; if the latter, to the defendant.
The counsel for Parsons objected that the copy could not be read upon the affidavit of the plaintiff: that he had not the ori-gina!, nor could command it, if the defendant could prove that he, the plaintiff, had caused or been privy to its destruction.
The court permitted the defendant to introduce witnesses, who swore to conversations of the plaintiff in substance amounting to this ; “ That he had not possession of the deed, nor had “ ever seen it since a former trial in this court; but that it was “ where it never would be feeer& again ; that they were fools for di producing it at first ; that he believed John Hill Bryant, (who a claimed a part of the land under the same deec) had it sinca u the trial, and he supposed the deed was burnt.” They proved further, that the deed was altered in the place describing the course, and that it had been in the possession of John H. Bryant. The plaintiffs proved that the alteration in the deed was from No. 5 to No. 45, and against his interest- — of course that it would be for his advantage to produce it, as it would shew what was the course originally, which had been altered ; and consequently that the plaintiffs probably did not alter it. The plaintiff swore he had not been privy to its destruction, nor knew where it was. The plaintiff’s counsel urged the court to admit the copy they offered, and to submit to the jury to decide whether the deed was destroyed by the plaintiff — and if so, to pay no regard to the copy; and they urged it the more, as they al-ledged, because as io the point whether destroyed or not, there was evidence on both sides, which it was the proper province of of a jury to decide upon.
Hall, Judge,
The court must determine ii3 in order to de-*381©ide upon tbe admissibility of tbe evidence offered, and will decide it as a jury would. If setting as a juror, I should be obliged to say upon such evidence, that the plaintiff was privy to the destruction of the deed. The copy under such circumstances.* cannot be admitted.
Referred to the Supreme Court.