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![handle is hein.slavery/ssactsengr0866 and id is 1 raw text is: OSBORNE V. HARVEY
In the course of the cause Mr. Cooper and Mr. James Parker, for the Plaintiffs,
tendered in evidence an examined copy of a deed relating to the Bounty Hall estate ;
such copy not being taken from the original, but from the copy of the original, as
registered in the island. They relied on the Act of Assembly, 4 Geo. 4, c. 5, sect. 2.(1)
[115] Mr. Simpkinson and Mr. Rennalls, for the Defendants, objected to the
reception of this evidence. This is a copy of the instrument as entered in the
registry books, or, in other words, a copy of a copy (Locke, Hum. Und. B. 4, ch. 16,
sect. 10), and, therefore, on general principles, not receivable in evidence. [THE
VICE-CHANCELLOR. If the copy in the registrar's office was brought over here, would
you object to that *] We should, unless it were examined, and notice to, produce
given. The evidence must be according to the law of this country, and not that of
amaica. How can an Act of Assembly allowing copies of copies to be evidence be
recognised here? It applies only to proceedings in Jamaica. The original must be
proved as in any other case ; or, at all events, the Plaintiffs must prove that it is lost or
mislaid, or that the attesting witness cannot be found. Brown v. Thornton (6 Ad. &
Ell. 185); Appleton v. Lord Braybrook (2 Stark. 6); Airton v. Datis (1 Mont. & A.
258).
THE VICE-CHANCELLOR [Sir J. L. Knight Bruce . I must receive this copy in
evidence. It relates to immoveable property in another country. The original is an
instrument, the domicile of which (so to speak) must have been in a foreign country,
and there is no constat that it ever arrived here. By the law of that country the
deed is to be enrolled and recorded; and the enrolment and record are to have the
same force as the original. The record and enrolment cannot be brought here: what
is tendered is an examined copy. Without regarding the evidence which has been
given of search for the original, I am of opinion that this copy, being an examined
copy, ought to be read.
In arguing the foregoing case on the merits, the Defendants' counsel disputed the
authority of the Court to make any decree to settle the boundaries of lands in
Jamaica, [116] and in support of their argument cited Penn v. Lord Baltimore
(Vez. sen. 444); Pike v. Hoare (2 Eden, 182); and Bayley v. Edwards (3 Swanst. 703).
The Vice-Chancellor, however, gave judgment, without mentioning any doubt as to
the jurisdiction.
[116] OSBORNE v. HARVEY. Dec. 10, 1841.
Where a purchaser is let into possession of the estate under the contract, his dealing
with the property in a manner contrary to former usage, or contrary to the usual
course of husbandry, may be ground for ordering him to pay the purchase-money
into Court, or for the appointment of a receiver; but will not authorize a decree
against him to compel him to accept the title on the ground of waiver of objections.
A receiver may be appointed at the hearing though not prayed for.
(1) By which, in order to prevent the difficulty that attends the proving titles
to estates where the original patents, wills, or deeds are or may be lost or mislaid, or
the witnesses who attested the same are dead, or gone off this island, or not to be
found, it is enacted, that the record of any letters patent enrolled in the secretary's
office or office of enrolment in this island, andthe record of any deeds duly executed
and proved, or acknowledged and enrolled in the said office or any other office of record,
according to the several Acts of the Governor, Council and Assembly, in that case made
and provided, and the record or enrolment of any last wills and testaments duly executed
according to law, and proved before the Governor or Commander-in-Chief by one or
more of the subscribing witnesses thereto, shall at all times hereafter be deemed judged
and taken to be sufficient evidence of the several persons' titles to any lands, tenements,
negroes, hereditaments or estates whatsoever, real or personal, claimed under the said
patents, deeds,- conveyances or wills; and the same shall be read and allowed in all
and every Court or Courts of law or Equity within this island as if the original patents,
deeds, conveyances or wills were actually produced, proved and read in all and every
the said Courts. See Howard's Laws of the Colonies, vol. h p. 48.
815
I Y. & C. C. C. 115.](ViewImageLocal?handle=hein.slavery/ssactsengr0866&div=1&collection=&method=preview&ext=.png&size=3)