delivered the opinion of the court:
The first question presented is, whether the Circuit Court erred in refusing to instruct the jury, on the plaintiff’s motion, that the defendant’s plea of non cepit admitted the property and possession of the slaves in controversy, to be in the plaintiff at the time of the taking alleged in the declaration. The doctrine in regard to the law of replevin on the plea of non cepit is accurately laid down in the case of Rogers vs. Arnold, 12 Wendell, 33. It is there stated “ that the plea of non cepit puts'in issue nothing but the caption, and the place, where that is material, and that under it the defendant cannot show property out of the plaintiff.” And in the case of D'Wolf vs. Harris, 4 Mason, 528; Justice Story has said, “ where non cepit was pleaded, and property in a third person, and not in the plaintiff, that the pleadings narrow the case to the taking of the goods, and whose property they were at the time of the attachment.” 7 John. Rep. 142, Pangburn vs. Patridge.
The plea of non cepit does, in effect, disclaim property and possession to be in the plaintiff. If this be correct, then the court below certainly erred in refusing to give the instructions asked for by the plaintiff. He may have wholly failed in his action on account of the misdirection given to the jury; at any rate, it is but reason able to suppose that his interest was severely prejudiced by it; for it was all important for him to show'property and possession-in himself; and as that fact was expressly admitted by the pleading, he could not be required to prove it.
The second point to be considered and decided, is, did the court below err in instructing the jury that in order to entitle the plaintiff to maintain replevin, it was necessary for him to prove an actual and lawful possession of the property claimed. It is true, that the plaintiff must show a genera! or special property in the goods to support his action, or recover in replevin, coupled with an actual or constructive possession of them at the time of suing out the writ. The right of property, by intendment or operation of law, carries with it the right of possession, either actual or constructive. Upon this principle, it has been held that the assignment of goods at sea, and of their proceeds, if bonajide, is sufficient to pass the legal title to the goods, and also to the proceeds, so that replevin will lie for the latter. The authorities are so full and conclusive on this point, that it is deemed unnecessary to say more on this branch of the subject, than barely to refer to some of the most prominent cases that have been decided. The principle is well settled that a plaintiff who has a general or special property in the goods, coupled with an actual or constructive possession, can maintain replevin. It is the unlawful taking or deprivation of the goods that constitutes the gist of the action; and this taking may be from him who is legally entitled to the property or proceeds of the goods, as well as from him who has the actual possession of them. This being the case, it necessarily follows, that the court below erred in instructing the jury that the plaintiff must have had the actual possession of the property in controversy, in order to enable him to maintain replevin.
The only remaining question to be decided is, did the Circuit Court err in permitting the deed of trust from William Wynn to Grandison D. Royston to be read as evidence on the trial, upon proof of the hand writing of the grantor, without properly accounting for the absence of the subscribing witnesses thereto, or without proving the hand writing of the attesting witnesses.
It is a universal rule of practice, without an exception, that the best evidence which the nature and state of the case will admit of, must be produced. This rule is founded on the most obvious principles of necessity, and of public policy; and it cannot bé departed from with-without manifest injustice, and producing the greatest confusion and uncertainty in all judicial proceedings. It lies at the very foundation of all correct reasoning and induction, and it constitutes the basis and ground work of the law of evidence. Primary evidence stands highest in the scale or grade of proof, because it approaches nearest to the truth of the fact sought to be proved; and for this reason is more conclusive in its results, and less liable to mistake or deception; and wherever the best evidence exists, or can be obtained, it must be resorted to as furnishing the only legitimate and the most unerring test of truth.
To admit secondary evidence, while a higher grade of testimony exists, or can be procured, is to violate a universal principle of the law of evidence, and to destroy at the same time the only fair and legitimate mode of reasoning upon all subjects. The party who seeks to prove a given fact, by inferior evidence, must first lay a just ground for its introduction, by showing that the superior evidence has been lost or destroyed, or that it is not within his power to obtain it, or that it is not within the reach of the process of the court.
For to allow a party the privilege of resorting to secondary evidence while primary testimony exists, or can be had, would be to fen able him to commit a fraud, and to obscure and render doubtful the issue to be proved. By keeping in view these plain and obvious principles we shall find little or no difficulty in solving the questions now before us. The plaintiff objected to the deed of trust, in the first place, as inadmissible testimony, for the want of proper authentication. The court sustained the objection, and the defendant thereupon introduced two witnesses who stated, “ they had no knowledge of the subscribing witnesses to the deed, and had never known of their residing in this State.” The record shows that the deed was duly acknowledged before a Notary Public, in the city of New-Orleans, and that it was subscribed in the presence of two witnesses, whose names and attestations were affixed to it. Upon this state of the case,- the court below permitted the hand writing of William Wynn, the grantor, to be proved, and upon proof thereof, the deed was declared duly executed and allowed to be read as evidence to the jury.
The record shows that the defendant claimed title to the property in question under and by virtue of the deed of trust executed by Wynn to himself. It is acknowledged before a Notary Public with his authentication attached to it, to which is annexed a certificate of the Governor of Louisiana, showing that the Notary Public was duly commissioned and in office at the time he affixed his official signature to the instrument. See Revised Statutes of the State of Arkansas, 53.
This cannot be considered as a judicial record of another State, and it is certainly not entitled to be read as evidence in this State, simply on the authentication of a Notary Public of New Orleans. It must then be proved as other deeds of equal grade and dignity are required to be. The law places the subscribing witnesses around the transaction for the sole purpose of proving it, and their testimony cannot be dispensed with, unless it be first shown that they are dead, or interested, or have become infamous since the subscribing of it, or unless a most diligent search be made for them, and they cannot .be found or heard of; or they are out of the reach of the process of the court. When these facts are proved, then the law dispenses with the best evidence that the case will admit of, and allows secondary evidence to be introduced, by proving the hand writing of the attesting witnesses. In such cases, proof of the hand writing <?f the witnesses proves the execution of the instrument. And if the hand writing of the witnesses cannot be proved, after proper diligence has been used for that purpose, the party ipay then resort to a third grade of evidence, and prove the hand writing of the obligor or grantor, as if there had been no subscribing witnesses. Johnson vs. Mason, 1 Esp. 89; Abbot vs. Plumbe, Doug. 216; Barnes vs. Trompousky, 7 J. R. 261; Call vs. Dunning, 4 East. 253; Fox vs. Kiel, 3 J. R. 477; McPherson vs. Rathbone, 11 Wendell, 98. 'The authorities show that the hand writing of the subscribing witnesses, even when they have become incompetent since their attestation, must be proved. And in Patterson vs. Jackson, 11 Wendell, 123, the cases are enumerated in which the execution of a deed may be proved by establishing the hand writing of .a party, or by admitting that he executed it. They consist of these: where a witness is interested, or infamous, where he denies having any knowledge of its execution, where the name is fictitious, where there is no witness, where he is dead or out of the jurisdiction of the court, and where, after diligent inquiry, no proof of his hand writing can be made, and when, upon inquiry, nothing can be heard of him, so that he can neither be produced, nor his hand writing proved.”
This enumeration includes all the cases where the hand writing of the grantor is allowed to be proved. It certainly cannot be contended that the defendant has brought himself within the rules here laid down. The witnesses to the deed are not shown to be dead, infamous, or interested, to deny having a knowledge of its execution, orto be fictitious personages, or out of the reach of the process of the court, nor is it shown, that after diligent inquiry, the defendant is unable to make any proof of their hand writing, or that nothing has been heard of them; so that they can neither be produced, nor their hand writing proved.
No attempt was ever made to prove the hand writing of the attesting witnesses, nor was any search or inquiry instituted for that purpose. No effort whatever was made to procure their attendance, or to obtain their testimony. The witnesses who were examined on the trial, simply stated “that they had no knowledge of the subscribing witnesses to the deed; and that they had never known of their residing in this State.” No question, so far as the record shows, was ever asked them in regard to their knowledge of their hand writing. In’the absence, therefore of all those requisites, which are held to be indispensable for introducing a third grade or species of evidence, to introduce the deed; the court below unquestionably erred in permitting the deed to be established by proving the hand writing of the grantor.
It has been already shown that the court erred in refusing the instructions asked for by the plaintiff, and in giving those asked for by the defendant, and also, in overruling the plaintiff’s objection to the proof of the execution of the deed of trust; and this being the case, the court should have nwaided the plaintiff a new trial, which was refused. This being the case, the judgment of the court below must be reverse!!.