1782.
2d. The plaintiff produced the Proprietary’s warrants to make a ſurvey of the lands in queſtion, for a perſon under whom he now claimed, without ſhewing any actual ſurvey, but only a paper in the nature of a certificate from a former ſurveyor general, ſtating that ſuch ſurvey had been made. It was oppoſed, because the preſent ſurveyor general (Lukens) swore that there was no such ſurvey in the office; that ſurveys of other lots were wanting, and that this paper was copied from a book in the office.
The Court ruled, that the paper ſhould not be given in evidence, being only the copy of a copy; but that the book from which it was taken might be read to the jury: And it was ſaid by M’Kean C. J. that the court has a diſcretionary power to admit circumſtantial evidence of the exiſtence of a record. Aleyn. 18.
3d. The plaintiff offered to prove that certain deeds, neceſſary to make out his title, were in the hands of, and detained by, the heirs of one Iſrael Pemberton, under whom the plaintiff inſiſted that the defendant was only a Leſſee; and alſo to give in evidence ſundry letters written by the said Pemberton. It was objected, that the defendant is not to be affected by the conduct of a third perſon. To which the plaintiff’s council anſwered, that they undertook to prove, that the defendant is no more than a leſſee from the heirs of Pemberton; and the poſſeſſion of the Leſſee, is the poſſeſſion of the perſon entitled to the reverſion. But for the defendant it was ſtill urged that his title is not to be made out by the plaintiff; that he reſts upon his poſſeſſion; and that till the plaintiff can make out a good title of his own, the defendant’s poſſeſſion is good againſt him; for the plaintiff muſt recover upon the ſtrength of his own, and not upon the weakneſs of the defendant’s title.
But by M’Kean, C. J. The plaintiff does not mean to ſhew the defendant’s title, but only his poſſeſſion, which is admitted by the record; if Iſrael Pemberton was defendant, it would be good evidence againſt him, and, if the plaintiff proves that the defendant is in under Iſrael Pemberton, or his heirs, he may give the detention of the deeds in evidence, and alſo the letters, unleſs the defendant ſhews another title; 1 Ld. Raym. 311. A bill of exceptions to this opinion was tendered and allowed; but, I believe, it has never been proſecuted.
4th. The plaintiff proceeded to call a witneſs to prove that the defendant was only Leſſee; and it was ſworn, that ſince the commencement of the ſuit (to writ, two days before the trial) the defendant told the witneſs, that he held under the heirs of Pemberton. This teſtimony was objected to, becauſe it is a general principle, not to receive evidence of an thing that happens after the ſuit. But it was anſwered, that this is only proof of an acknowledgment of a fact previous to the ſuit.
And by M’Kean C. J. I recollect one caſe in the books upon this point; and that is, That an acknowledgment of a debt after ſuit, takes it out of the ſtatue of limitations. Let the witneſs proceed.
