dissenting. I am unable to concur in sustaining the fifth exception. Defendants’ counsel offered in evidence a record book from the office of register of mesne conveyance of Chester County to prove a plat called the Otts’ plat, without having given ten days’ notice of his intention to do so, and without offering any evidence that the copy of the plat in the book had been compared with the original Otts plat. Section 2361 of the Revised Statutes permits a certified copy of any deed to be introduced in evidence, provided the party intending to offer in evidence such office copy shall give at least ten days’ notice thereof to the opposite party, or his attorney. If, therefore, this section applies to this case, the evidence was properly excluded for want of the required notice. Did the offering of the record book itself, instead of a certified copy, take the case from under the statutory requirement as to notice? In the case of Duren v. Sinclair, 22 S. C., 365, this Court said: “The defendant proposed to introduce not a copy but *250the books of record, and that, too, without having laid the foundation, by averring as to the loss and by giving the necessary notice as required in the act. We do not know by what authority such evidence could have been allowed. Certainly not by the section above, for the simple reason that it was' not proposed to introduce a copy, as provided for therein, nor was any oath made as to the loss, &c., nor any notice given as to the intent. There was, in fact, not the slightest approach to a compliance with the requirements of the act in such case made and provided. * * * The defendant desired to introduce this copy on the books to show the extent of his adverse holding. Certainly the original deed in which the boundaries of the land were described would have been the primary and best evidence of these boundaries, and was the evidence which the general rules of evidence demanded, and before the defendant could ask that these rules should be suspended in his behalf, he should have brought himself under the act which provides for such suspension. This he failed to do entirely.” Now, it may be that if the statute as to proof of loss and notice is complied with, the record book showing a copy of the original on it might be allowed in evidence as within the spirit if not the letter of the statute, since a copy on the record is as good as a certified copy of the copy on record; but it is settled by the case above cited that the record book is not admissible in evidence to prove a deed, without compliance with the requirements of the statute, not only as to proof of loss of the original, but also as to the required notice. Assuming that there was satisfactory proof of loss of the original, and evidence was still inadmissible under this statute, because of the failure to give the required notice. We know of no other statute under which it could be claimed that the record book is admissible to prove the plat as a part of a recorded deed.
It remains to see if the evidence was admissible under the common law rules of evidence. • Granting that defendant made due proof of the loss of the original plat, how is *251he to prove its contents? He offers a book said to contain a copy of the plat. Now, the rule as to proving the contents of a lost paper by a paper purporting to be a copy of the lost original, requires evidence that the alleged copy has been compared with the original. Mr. Wharton, in his work on Criminal Evidence, 178, says: “According to the English practice, an examined copy to be admissible must be verified by a witness, who will swear that he has compared the copy tendered with the original, either directly or through a person employed to read the original.” Mr. Starkie, in his work on Evidence, 9th Am. edition, 270, says: “The general rule of law upon this subject requires that a copy, in order to be admitted as secondary evidence, should be proved by some one who has compared it with the original.” To the same effect see Phillips on Evidence, 2 vol., p. 480. In this case no proof whatever was offered to show that the alleged copy of the Otts plat, found in the record book, had been compared with the original Otts plat in question. This was fatal to the introduction of the book as a copy. I do not understand that the case of Hobbs v. Beard, 43 S. C., 370, alters this well settled and salutary rule of evidence. In that case the Circuit Judge refused to allow' a witness to speak of the contents of the record of a lost deed, when the record itself had been destroyed by fire. He said, in ruling on the question: “The only way a record of that Court can come into this Court at all is by the mode provided by law, which is, that a notice so many days beforehand shall be given to produce the paper, and in case of non-production, use the office copy. If that book itself were here today, it would be no evidence in regard to the contents of that deed. * * * If you can’t prove by the books themselves, I don’t see how you can prove it by a witness who saw that book.” This Court, speaking through Mr. Justice Gary, said: “As a general proposition, the rule announced by the presiding Judge is correctly stated. This case falls under a different rule, because the record of the deed has been destroyed by fire.” This Court, in overrul*252ing the Circuit Judge, finally said: “If his Honor was satisfied -that the deed was lost, and that the plaintiffs did not have it in their power to produce higher evidence than that offered by them as to the contents of the deed, then the testimony was competent,” &c. (italics ours). As the basis for this conclusion, the Court cited from Hunter v. Glenn, 1 Bail., 542, that “to let in inferior proof, the party offering it must show that no higher is in his power.” This case, therefore, does not conflict with the view herein advanced, for in this case there is no destroyed record of which it is sought to prove the contents; and it cannot be said in this case that the Circuit Judge was satisfied the defendant did not have it in his power to produce higher evidence than that offered as to the contents of the plat. On the contrary, it was shown in this case that there was higher evidence. The Circuit Judge allowed defendants’ counsel to introduce in evidence a plat called the Vincent plat, under these circumstances, as shown at folio 130 of the case: “C. D. Farrar, recalled. Mr. Gage offers plat again. The Court: This plat was made, so this surveyor says, from a plat made by R. J. Otts, and I think, in the light of this other testimony; although the other testimony was not objected to, I think it will be fair to let this plat in under the circumstances.” Now here was a copy of the Otts plat, which had been made b}' a surveyor from the original plat, and it was admissible and admitted under the rule above set forth, requiring evidence that a copy had been' compared with the lost original, before it is admissible to prove the contents of the original. It cannot be said, then, that the evidence rejected in this case was the best evidence of which the nature of the case was capable. Here was higher evidence not only available, but actually availed of by the defendant. Being unable to see wherein the Circuit Judge has committed any error harmful to defendants, I think the judgment below should be affirmed.