#### JOHN LAMBERT vs. JOAB LAMBERT.

Where a party offered in evidence the copy of a deed, for the purpose of showing the receipt of money, and it appeared that the deed had not been proved nor acknowledged by the supposed bargainor, but notice had been given to produce the original. Held, that the copy was not admissible •for any purpose, as the original would not be, until property proved.

Appeal from the Superior Court of Law of Randolph County, at the Spring Term 1850, his Honor, Judge Bat-tue, presiding.

This was an action of assumpsit for money paid by the plaintiff, as defendant’s surety.

On the part of the plaintiff it was proved, that the. defendant was indebted to Abel Cox and several other persons, and being about to leave the State, and not being able at the time to pay the debts, an arrangement was made between him and his son, John R. Lambert, and the plaintiff, that the said John R. and the plaintiff should as> *163sume his debts, or should become security for them, upon-his conveying to them a certain tract of laud and certain articles of personal property to be applied to the payment of them. The defendant therefore executed to the plaintiff and John R. Lambert, absolute deeds for two tracts of land, and made a verbal assignment of the personal property, and they took up and cancelled the notes held by the defendant’s creditors, and gave their own notes for the debts, which the plaintiff subsequently paid, the other surety, John R. Lambert, having become insolvent.

The defendant insisted, that the agreement between him and the plaintiff and John R. Lambert, was, that the two latter were to pay the debts of the defendant upon his conveying to them his land and other property i and consequently, the notes which they gave to the defendant’s creditors, were given as their own in discharge of the defendant’s liability — and that when they were paid by the plaintiff, it was a payment of his own debts and not as surety for the defendant. He gave in evidence a letter. The defendant contended further, that if this were not the true agreement between the parties, but his property was conveyed to the plaintiff and John R. Lambert as collateral security only, that then the plaintiff and John R. Lambert had sold this land and the plaintiff had received more than enough to pay the amount of the debt, which he now seeks to recover. And to prove this, he offered in evidence a copy of a deed for the land, alleged to have been executed by the plaintiff and John R. Lambert to John Lambert, Sen., the father of both the plaintiff and defendant. This was objected to, because the original was not produced, and because, though it had been acknowledged by John R. Lambert and registered, it had never been proved or acknowledged as the deed of the plaintiff, and consequently had not been registered as to him. The defendant then showed a notice to the plaintiff to produce the original: that John Lambert, Sen,» *164was dead: and that the plaintiff and another were his executors: and that at the time of his death, the testator had property amply sufficient to pay $400, the consideration recited in the deed. He then stated that the deed was offered only for the purpose of showing an acknowledgment by the plaintiff, that he had received the amount or at least half of the amount of the consideration money recited in the deed, and for this purpose and this alone it was received by the Court, it was then proved, that John R. Lambert had received $50 only of the purchase money, and it appeared that the proceeds of the personal property had been applied to the payment of debts not claimed in this action.

The Court instructed the jury, that if they inferred from the letter offered in evidence by the defendant, that the agreement between the parties was as the defendant first contended, then the plaintiff could not recover; but, if they found that the land and other property were conveyed to the plaintiff and John R. Lambert as collateral security, then the plaintiff was entitled to recover; unless they were satisfied by the evidence, that he had actually received from the proceeds of the land sufficient to pay the amount now claimed by him.

The jury returned a verdict for the defendant; and the plaintiff moved for a new trial, because the presiding Judge had left the construction of the letter to the jury, instead of deciding upon its meaning himself; and because of the admission of improper testimony, in suffering the defendant to read the deed from the plaintiff and John R. Lambert to John Lambert, Sen., for any purpose_ The Court thought there was nothing in either of these objections, of which the plaintiff had a right to complain, and therefore x’efused the motion for a new trial and gave a judgment for the defendant, from which the plaintiff appealed.

*165 Mendenhall, for the plaintiff.

W. II. Ilaywood, for the defendant.

Nash, J.

The plaintiff asks for a venire de novo on two grounds. The first, for error in the Judge in submitting to the jury the construction of the letter, which was given in evidence by the defendant. The second, for error in suffering the defendant to read to the jury the copy of the deed from John and John R. Lambert to John Lambert, Sen. for any purpose. In the argument here, the first ground has been properly abandoned, The instrument is so worded, that the Judge committed no error in law in submitting the construction to the jury. In admitting the paper purporting to be the copy of a deed of conveyance from the plaintiff and John R. Lambert, there wus error.

The deed had been proved and registered as to John R. Lambert, but not as to the plaintiff. His Honor rejected it as evidence of a conveyance of the title of the land, but upon notice to the plaintiff to produce the original, admitted it as evidence of a receipt of the money pr a portion of it, for which it was said the land sold.— But as far as the case discloses the fact, there was no evidence whatever, that the plaintiff had executed the paper, of which the one offered in evidence was alleged to be a copy. The supposed original therefore would not have been evidence against him. Upon what rule of evidence could the copy be ? The sole question presented to us at this time, being the competence of this evir dence, our view of the case is confined to it. And being of opinion that it was erroneously admitted, the judgment must be reversed and a venire de novo ordered.

Per Curiam Judgment reversed and venire de novo]