— Two questions arise in this case:
First — Was the preliminary evidence offered by the plaintiff in error, on the trial in the court below, sufficient.to authorise the introduction of secondary proof of the contents of the deed ?•
*535Secondly — Was the paper executed by Smoot and others, a legal division of the slaves?
The rule of law is, that the best evidence' which the subject admits of, must always be produced'; and if evidence of an inferior grade is offered, it raises the presumption, that the higher testimony is withheld for some sinister purpose. Before, therefore, testimony of an inferior grade is permitted to be adduced, the court to whom the preliminary enquiry is addressed, will require satisfactory proof, that the better evidence is not voluntarily withheld.
What shall constitute this satisfactory proof, to authorise the introduction of secondary evidence, cannot easily be reduced to any fixed rule; it is addressed to the discretion of the court, to be governed by the circumstances of the case. The plaintiff here proved, that the deed once existed, and was¡ in the possession of one John 8. Devin, who had intermarried with the grantee of the deed; that the deed had been demanded from him, and that he did not produce it: that he now resided in the territory of Florida. It was also proved, that search and enquiry had been made for the deed, of other persons, who it was supposed might have possession of it, but without effect. We think this was sufficient. The plaintiff could have no motive for withholding it, as he offered to prove its contents by a registered copy, thereby repelling the presumption, that the original was withheld, for any improper purpose.
In addition to this, it is important to consider, that the plaintiff never had possession of the deed, and that Devin- and his wife, who had once sold the negro in question, *536by virtue of a claim asserted under the deed, had after-wards, as executors of the will of N. Beal, assigned the same negro to the defendant. It is therefore not to be wondered at, that the deed is not produced on the demand of the plaintiff. It has been frequently held, that if an original paper is in the possession of a third person, beyond the jurisdiction of the court, and reasonable diligence has been used to procure it, without effect, secondary evidence of its contents may be resorted to— (Minor vs. Tillotson, 7 Peters’ R. 99; United States vs. Rayburn, 6 Peters' R. 352; Baily vs. Johnson, 9 Cowen’s R. 115; Scott vs. Rivers, 1 Stew. & Por. 19; 13 Johns. Rep. 58. The case of Bradford vs. Bradford, at tiie last June term of this court, establishes the same principle.
It results, from what has been said, that the court erred in not permitting secondary evidence to be given of the contents of the deed.-
The division which was made of the negroes, as evidenced by the instrument signed by Smoot and othsrs, is resisted on two grounds. First — That at the time of the division, the negroes (among whom was the one in controversy,) were not in the possession of the executrix, but held adversely, by one through whom the plaintiff in error claims; and that therefore being the transfer of a chose in action, it docs not vest- the legal title in the defendant
The assent of an executor to a legacy, vests in the legatee the legal title; which assent has relation to the will, the source of the legatee’s title; or, in technical’language, he is said to be in by virtue of the wili. This appears conclusively", from what is said in the case of Foster and *537Miles, cited in Saunders’ case, (5 Coke’s Rep.) “If lessee for years devise his term to another, and makes his executor, and dies, the executors do waste, and afterwards assent to the devise, in that case, although between the executors and the devisee, it hath relation, and the de-visee is in by the devisor, yet an action of waste shall be maintainable against the executors.”
The division which was made of the slaves, was not only the execution of a power created by the will, but is also evidence of the assent of the executor to-the legacy, thereby vesting the legal title' in the defendant in error.
We have been referred to the cose of Loyd vs. Goodwyn, decided at the present, term, (See page 237.) as determining this principle. The doctrine of that case, is, that the sale of a chote in, action, where an adxerse claim was asserted to the property, does not convey the legal title to the purchaser. Its applicabil.ty to this case is not perceived. An executor, by assenting to a legacy, cannot in any sense be said t > sell or convey the subject of the legacy. His assent- is not the source of the title. To ascertain what that is, recourse must be had to the will. It would be of most mischievous tendency, to ad-m t that he could, by any act of his, under pretence-of assent, enlarge or abridge the title of t ie legatee.
Secondly — That it does not appear, that Smoot and Garrow, who, with the executrix, and her husband, Devin. made the division of the slaves, had.any authority to act: this objection is well founded. By the will of N. Beal, the power to make the division is given to the executrix, and Samuel Henry and Thomas J. Strong; and, in the event of the death of either, power is given *538to the survivor, to appoint others in their place. It is true, that the instrument by which the division is made, recites that Strong and Henry are dead, and that Smoot and Garrow have been appointed by the survivor in their place and stead. But we do not think the recital was proof of the fact against one who did not claim under it. The proof of the fact, must be made by evidence ab-unde.
Let the judgment be reversed, and the cause remanded.