WILLIAM ARCHIBALD AND RHODA, HIS WIFE, vs. WILLIAM H. DAVIS.

A copy of a grant taken from a book in the office of the Secretary of State, purporting to be issued in 1710, by Charles Eden and others, who were the Governor and Council, although but lately registered, is admissible as evidence of title.

A record of proceedings of a Court ordering partition of a tract of land, and a long acquiescence and actual occupation by the heirs according to the proceeding, is obligatory on them, and one thus acquiescing, who was mentioned as one of the heirs, in the body of the petition, but was not made a party plaintiff or defendant, is bound by the proceeding, and, therefore, may offer it in evidence in support of his title.

When the report of commissioners, making a partition and appropriation, is confirmed by the Court, and filed in the papers of the case, it is enrolled, so as to meet the requisition of the Act of Assembly.

A plot by a surveyor, representing various tracts and lots of land of the ancestor, corresponding in number with the number of heirs set out in the petition, filed with the papers of the case, and registered with them, was properly taken as the plot referred to in the report of the commissioners, and admitted as-evidence to explain §uch report.

It was Held, not to be error in a Judge to leave it for the jury to decide whether the cutting down of 182 timber trees entitled the party to more than nominal damages, and if so, how much.

This was an actioN of tRespass q. c. f., tried before Manly, J., at the last Beaufort Superior Court, in which the plaintiffs claimed title to the locus in qyio, through a grant from Chas. Eden, Chris. Cale, Era. Foster, Nath. Chevin and Wm. Reed, to Tobias Knight, for 345 acres, dated 9th day of September, 1716, a copy of which was produced and certified by the Secretary of State to be “ a true copy of the record of a grant taken from a book in this office on the back of which copy *134is this entry — ■“ Registered in the register’s office of Beaufort County, in book no. 29, page 45,” — (signed by the register.) The admissibility of a grant from these persons was objected to; and it was further objected that the authentication of this copy was insufficient. These objections were overruled and the deed admitted. Defendant excepted.

Proceedings for the partition of lands between the heirs of James Latham, (of whom the feme plaintiff, Rhoda, was one,) in the County Court of Beaufort, were introduced. . It appeared from the petition and proceedings for partition, that her name was not inserted as a petitioner, nor was she or her husband made a party defendant; and there is no evidence of any service, or other notice, to either of them; but in the body of the petition “ Rhoda Archibald, wife of William Archibald,” is mentioned as being one of the heirs-at-law of James Latham. It appeared further, from the record of the case, that “the prayer” of the petition “ was granted,” and ¥m. Tines and others (naming them) were appointed commissioners “ to divide the landsa writ issued to these commissioners, commanding them to make partition among the heirs-at-law, naming Rhoda Archibald, wife of Wm. Archibald, and six others, as lieirs-at-law of James Latham, dec’d. At May Term, the record of Beaufort County Court shows as follows: “'May Term, 1828. Lands divided. Report of commissioners filed! Report returned and confirmed, and ordered to be registered.” The report is filed in the. office of that Court. It sets out a division of the lands into seven parts or shares, among the seven heirs of James Latham, and is signed by the commissioners. On the record is an endorsement as follows: “-Washington, 17 th of May, 1854. Ido hereby certify that the foregoing report is registered in my office in book no. 28, pp. 510 and 511.” Signed by the register. Plaintiffs entered, and have ever since claimed, under this proceeding. This report was objected to, but admitted. Defendant excepted.

Among the. papers filed in the case, in the County Court, and registered with them,, is a plot, yddeh is thus entitled — ■ *135“ James Latham’s Lands. There is, in all, 2137 acres, belonging to the heirs of J. Latham; surveyed by Reuel Windley, D. surveyor.” A plot is several times referred to in the report above mentioned, and the several lots, and different tracts mentioned in this survey, (13 in number) are referred to consistently in the said report. Without some plot there could be no identification or certainty as to any share of the lands laid off by the commissioners. Objection was made to this paper as evidence, but admitted by the Court. Defendant excepted.

It appeared on the trial, that 182 trees, for timber, had been cut down, but not taken off at the institution of the suit; and it was contended that this would entitle the plaintiff to nominal damages only. His Honor left the question of damages to the jury, with instructions to find the actual damages up to the bringing of the suit. Defendant again excepted.

Verdict and judgment for the plaintiffs. Appeal by defenant.

Donnell and Shaw, for plaintiffs.

Rodman, for defendant.

Battle, J.

On the trial, several objections were made by the defendant, which are set out in his bill of exceptions, and' which we will proceed to consider.

1. The defendant objected to the introduction by the plaintiff of a grant from Charles Eden, Christopher Gale, and others, to Tobias Knight, for three hundred and forty-five acres of land, lying in the precinct of Hyde, (now part of the County of Beaufort,) made on the 9th of September, A. D., 1716. A copy of this grant has been obtained from the Secretary of State, in whose office it was found deposited, and had been recently registered in the office of the register of Beaufort County. The objection is, that the persons who purported to make-file grant had no power to do so, and that it had not been properly proved and registered; at least, not in due time. The answer is found in what is called “The great deed of grant,” from, the Lords Proprietors of the province of Caro*136lina to Samuel Stephens, Governor of the County of Albe-marle, and to his councillors, bearing date May 1st, 1668, by which they granted “ full power and authority unto the said Governor and his successors, by and with the consent of the council or major part thereof, to issue grants for lands lying in the Coimty of Albemarle, to the inhabitants thereof, to be held upon the same terms and conditions upon which the inhabitants of Virginia held their lands.” See 2 Eev. Stat. 13. The grantors, in the present case, were the Governor and Council of the Province, at the time when the grant was issued, and the grant itself was recorded in a book now on file in the office of the Secretary of State. The grant was, by the provisions of the great deed, required to be registered, which, as far as we know, was not done; but by the last clause of the 24th section of the 42nd chapter of the Eevised Statutes, it Avas enacted that, “ it shall, and may be, lawful for any person to cause to be registered in the office of the register of the County where the land lies, any certified copy of a grant from the office of the Secretary of State, for the lands lying in such County; and such registration, duly made, shall have the same effect in law as if the original had been registered. There does not seem to be any limitation as to the time within which such copies must be registered, but if there be, it has been extended by the acts which are passed at eArery session of the General Assembly, for the purpose of allowing all such grants, deeds and conveyances, to be proved and registered, which have not heretofore been done so.

2. The second objection was to the admissibility of the records of the proceedings for the partition of the lands of James Latham, among his heirs-at-law, because the feme plaintiff, who was one of the heirs, was not made a party to it; and further, because the return of their proceedings and the appropriations made by the commissioners, were not enrolled as required by 1 Eev. Stat., ch. 85, sec. 1, (Eev. Code, ch. 82, sec. 1.) The first part of the objection is clearly untenable. The wife of the plaintiff was not, indeed, made a party, but she is mentioned in the petition as one of the heirs among. *137whom the partition was prayed ; a share was allotted to her, and she and her husband have acquiesced in it ever since it was made in the year 1828, and now claim under it. It is too late for her, much less a stranger, to obj ect to it at this time. The other part of the objection is equally unfounded. The proceedings were enrolled when they were placed by the clerk among the records of his office, just as acts of the Legislature are enrolled when they are duly ratified and deposited in the office of the Secretary of State. They are not required to be recorded in “ proper books,” like wills, (Revised Statute, ch. 122, sec. 4; Revised Code, ch. 119, sec. 13,) nor in a “well-bound book,” like the returns of justices’ executions levied on land, (1 Rev. Stat., ch. 62, sec. 16 ; Rev. Code, ch. 62, sec. 17,) but simply to be enrolled ; that is, placed by the clerk of the Court among the records or rolls of his office. This will satisfy one meaning of the term “enrolled,” and as the proceedings are required to be '“registered” also, we can hardly suppose that the Legislature intended that they should be recorded in another book.

3. The third objection was the introduction of the plot of the survey of the division of the lands among the heirs, because it did not purport on its face to have any connection Avith the partition made by the commissioners. It Avas registered with the other papers, and was found among them in the clerk’s office. A plot is referred to in the return of the commissioners as being “ herewith.” The one offered in evidence purports to be a survey of the lands of James Latham, dec’d., and the lands are divided into lots corresponding with the number of heirs. Under these circumstances, we think, the plot in question formed a part of the proceedings in the cause, and Avitli them was properly admitted in eA'idence by the presiding Judge. The case of Morrison v. Laughter, 2 Jones’ Rep. 354, cited by the defendant’s counsel, does not apply, because there the .petition did not refer to the deed in question, nor any deed as containing a more certain description.

4. The fourth and last objection was to the charge of the *138Judge upon the question of damages. The defendant contended, that as, at the time when the writ issued, the trees which he had cut down had not been carried away, the plaintiffs were entitled to only nominal damages. The case states that the question of damages "was left to the jury to find the actual damages up to the bringing of the suit. Under tin’s instruction, the jury gave a verdict for seventy-five dollars, damages, the proof being that one hundred and eighty-two trees had been felled. As the damages were certainly more than nominal, we thought at first that the jury might have misunderstood the charge, and taken into consideration the carrying away of the trees, and that the charge was liable to objection for not being sufficiently explicit; upon reflection, we have come to a different conclusion. There was no testimony, so far as we can see, that the trees had been made into timber and carried off at all by the defendant; but if there were, the fact was called to the attention of the jury, that they were not so before the suit was brought, and then the jury were expressly told that the actual damages up to the bringing of the suit was the rule by which they were to be governed. We have no means of knowing that the cutting down simply of one hundred and eighty-two timber trees was not an actual damage to the plaintiff to the amount of seventy-five dollars, which is at the rate of- about forty cents per tree. In the absence of any such information, we must suppose that the verdict was correct, according to the instruction which the jury received. If there were any actual damage at all, the instruction was undoubtedly a proper one.

There is no error, and the judgment must be affirmed.

Pee Curiam. Judgment affirmed.