By the Court.
Lumpkin, J.,delivering the opinion.
■We shall affirm the judgment of the Court below; and as such is our conclusion, it is unnecessary to elaborate the minor points argued before us, especially as the counsel for *397plaintiffs in error expressed his indifference as to those points unless there was a reversal on the principal error alleged. I content myself, therefore, with saying, that as to the plea of non est factum, a defendant in an equity cause clearly has a right to deny the execution of any document annexed as an exhibit to the bill, and thus put the complainant on proof. The formality of the plea is immaterial.
As to the testimony rejected of the sayings of Thomas Persons, Sr., we think the Court was cleqrly right. A party having two titles to the same property, certainly has a right to elect, under which he will defend; and when he has disclaimed all benefit of one title, he surely ought not to be burdened with any disability attaching to him as a privy in estate. The law attaches such disabilities as consequences of his claiming the benefits of the title; when he declines the latter, he relieves himself of the former. Nor do we perceive any inconsistency in the titles set up by defendant in his several answers. They seem to be portions of a series of acts all tending to the same purpose to perfect title in him.
The main question in this case is the admissibility in evidence of the copy-deed of gift. It was offered in various ways by the ingenius and able counsel for plaintiff in- error, in the Court below, and being rejected as often as offered, many errors are assigned. I shall notice each separately, but consider the entire question at once. The papers might be admissible: 1st, under the common law rules, or 2d, as a copy from the registry, or 3d, under the Act 1855-6. Did the case presented to the Court below make it admissible under either?
1. Under the common law to admit such secondary evidence, three facts must appear to the Court: 1st. The existtence and genuineness of the original. 2d. Its loss or destruction, and 3d. Evidence that the paper offered is either an examined or sworn copy. As to the first requisite, slight evidence is said, by some of the authorities, to be sufficient, and where no issue is made by thepieadmy as to the existence of the original, this seems to us to be right. When such an issue is made, as in this case, the Court ought to require some more cogent and satisfactory evidence, and such as we do not think appears in the record.
But if there was, this was no examined or sworn copy, but a copy of a copy, and hence inadmissible under the common law without other proof to annex it to the original.
*3982. Was it admissible as a copy of a registered deed ? It purports to have been attested by two witnesses, neither of them officially. Plow came it upon the record ? No probate accompanies the copy. Shall the Court presume it probated properly before recorded ? In those States where the probate and order for registry is a judicial or quasi judicial proceeding, such a presumption might be urged upon the Courts, and with plausibility. But can it be done in this State where the registry is made without notice to a grantor and by a ministerial officer, who is allowed no discretion in the matter? We think not. A copy from the registry must show that the same came properly on the registry. The only evidence offered of that fapt here, was the certificate of the Clerk that there was a probate attached to the deed on the record. Two fatal objections show this evidence to be insufficient, viz: 1. That this was a judicial opinion of the Clerk to which he was not competent to testify. 2. That the evidence of the Clerk himself disproves the truth of this certificate.
3. Was the copy admissible under the Act of 1856 ? That Act prescribes that “ where in any counties in this State the pnblic records of the county have been destroyed by fire, any deed or other instrument in writing that is found to have been recorded, and the record burnt, such deed or other instrument in writing shall be taken and held to have been recorded legally and upon sufficient proof of execution in all the Courts of this State.” The 2d section allows the contents of the record to be proved by any person who at any time may have read the record. Two questions arise upon this statute, 1st. Is this presumption of proper probate conclusive or only prima facie, and subject to rebuttal? 2d. If traversable, before whom should the issue be heard, the Judge or the jury? Upon the first point we are, without difficulty, unanimous. The intent of the Legislature was clearly to relieve persons from the effects of such conflagrations by creating a presumption of proper probate in behalf of all their title papers. This was wise and generous legislation. But to go further, and to say to contestants of these titles, you shall be barred from showing the truth by legal evidence, would be unwise and iniquitious legislation, and such as the Courts would not lightly attribute to this co-ordinate branch of the government. Upon the 2d point we have had more difficulty. *399But a majority of the Court have arrived at a conclusion as to the proper construction of this Act, which is conformable to the general principles of law, and yet seems to offer every benefit which any party could claim under it.
The admission of secondary evidence is a question exclusively for the Court. When once admitted, the other party has no right to introduce evidence to the jury to show that the Court erred in admitting such evidence. The decision of the Court quoad hoc is final. If,' then, this presumption is traversable, the rebutting, evidence must be heard by the Court before he admits the secondary evidence. What reason is there for receiving evidence which afterwards must be withdrawn on production of further testimony to the Court ? If the rebutting evidence was submitted to the jury, what would be its effect? To call on the jury to decide a question which by law is properly for the Court, viz : whether a proper foundation is laid for the reception of secondary evidence? It would be a very anomalous question for the determination of a jury. Now, if there is much evidence, and conflicting evidence produced to the Court, we think the Judge might, of his own motion, call on a jury to decide this preliminary issue ; or if either party demanded it, we think the Court ought to grant him a jury to decide this question of fact; otherwise, and in this case, we think the Court did right to hear the evidence on this preliminary question himself.
The decision of the Judge upon the facts proved meets bur approval, and consequently, we see no error in his withholding this copy from the jury under the Act of 1856.
Several questions have been argued before us with zeal, and much research manifested in respect to them, upon which we express no opinion, especially as to the effect of our Registry Laws, in allowing copies of lost deeds to be given in evidence without further proof. There are unquestioned evils connected with the law practice which has obtained in the State, but we forbear to decide so momentous a point when it is unnecessary to the cause.