#### CALEB OSBORNE vs. BAKER BALLEW.

The copy of a grant from the Register’s Office is good evidence, where the production of the original is, from any cause, ‘dispensed with.

The case of *Candler*v. Lunsford, 4 Dev. & Bat. 19, cited and approved.

Appeal from the Superior Court of 'Law of Ashe County, at the Fall Term, 1846, his Honor Judge Dick presiding. .

This was an action of trespass *quare clausum*fregit. The writ issued in March 1841. .

The plaintiff produced and read in evidence a conveyance made to him by one Dobson, in the year 1836, which covered the *locus in quo,*and proved that he took immediate possession under it, and that he is still in possession. To shew the trespass he gave in evidence the copy of a grant to the defendant, bearing date in 1840, which covered the land in dispute, and alleged that the trespass consisted in running and -marking the lines, preparatory to the taking out of his grant. He further alleged, that, before the land was entered by the defendant, it had been granted to another person. To prove this, he offered in evidence the copy of a grant, from the Register’s office of Ashe County, where the land lay; and at the same time, filed his own affidavit, that the grant was not in his possession, and those of other persons that it could not be found. The plaintiff, further, disclaimed deriving any title under it. The introduction of the copy was opposed by the defendant; *first,*because a copy from, the office of the Secretary of State was better evidence, and, *secondly,*bécause the plaintiff had not accounted for the original. The Court rejected the evidence. The plaintiff, in submission to the opinion of the Court, suffered judgment of nonsuit to be entered, and appealed..

*418No counsel for the plaintiff.

*Boyclen*and *Iredell,*for the defendants.

Nash, J.

If this were a case, in which the plaintiff was bound to produce the original grant, he had entitled himself to the use of secondary evidence, by his own affidavit and those which were tendered. As the latter were not read, we are to presume, they were dispensed with, as unnecessary, and that the fact was as alleged, that the grant could not be found. But the plaintiff was not bound to account for the original. The copy offered was that of a grant, under which he did not claim title, and to the possession of which he had no right. The plaintiff was entitled to give in evidence a copy of the grant in question, *Candler*v. *Lunsford,*4 Dev. & Bat. 19 ; and the only enquiry on this point is, was he entitled to use the copy tendered. It is objected that he was not, because a copy from the Secretary’s office was better evidence. It is a presumption of law, until the contrary appears, that the grant was recorded, as directed in the Act; and we are of opinion that the objection is untenable. It is founded on the principle, that the best evidence, within the power of the plaintiff, had not been offered by him — that better testimony was behind, to-wit, a copy from the Secretary’s office. It is a general rule, that the best evidence shall be produced, to prove every fact in controversy, which the nature of the case admits and which is in the power of the party; in other words, secondary and inferior testimony shall not be substituted for that, which is of a higher and superior character. The rule is one of policy and is founded on the suspicion of fraud. For if, from the nature of the transaction, it is evident, that there is better evidence of the fact to be established, which is not produced, a presumption at once arises, that it is withheld, because its production would be injurious to the party offering the inferior testimony. But in this case the testimony offered, and that which, it *419is’alleged, ought to have been offered, are both secondary and not primary. It is admitted, a copy from the Secretary’s office would have been legal - evidence.- What would that be but a copy ? It would have been admissible, because it was the copy of a record. The rule, requiring the best evidence to be produced, being intended to guard against fraud, its operation ceases, when that presumption does not arise. It does not arise in the case of a record, and its production is, therefore, dispensed with and a copy substituted. To require the production of the record would often be inconvenient. 1 *Stark. Ev.*393. *2 Steph. N.P.*1514. The copy, then, of a grant from the Secretary^ office is the copy of a record, *Candler*v. *Lunsford,*4 Dev. & Bat. 19; and a copy from the register’s office is a copy of the original grant.- The grant is, in fact, the original in each case. Each, therefore, is but secondary evidence *-,*and in such case, there are no degrees. When a party is entitled to give such' evidence, he may give any species of it at his pleasure, 2 *Steph. N. P.*1517. Nor is it any objection that the copy from the Register’s office may be weaker in its effects, than one from the office of the Secretary of State,- or that all the testimony of the same grade has not been produced, that might. Thus the contents of a notice to produce a letter may be proved' by any one, who knows its- contents, without calling the person, who wrote it — - and hand-writing may be proved, without calling the writer himself.-

His Honor therefore erred in rejecting the copy of the grant from the Register’s office.

Ter Curiam»- Judgment reversed *imd- ventre de novo,-*