
    Brown, Executor of Phillips against Hicks, Adm. of Phillips.
    AppbaR from Cranford Circuit Court.
    
    In a suit against a person in a particular capacity, as for example, against him in the capacity of sheriff, guardian, executor, or administrator, it is necessary to be stated in the declaration that he is sued ‘‘ us executor, as administrator, &c.”
    The expression in a declaration “ the plaintiff being the executor as aforesaid” is not a substantive averment of his ¡sueing ah such, or in his representative capacity, and nothing by intendment can supply the allegation “ as exctor as aforesaid.”
    A declaration against “A. B. executor ofC. D.” and refering to him after-wards solely by the expression “A. '5. executor as aforesaid” is not a declara ■ tion against him as such executor, nor will he be liable in such action in his representative capacity.
    The term “ executor as aforesaid” or “ being executor as aforesaid” are mere words of description; the term “ as executor aforesaid” has but one meaning-, which is fixed by law, and is, that the parly sued is sued in Ins representative capacity.
    It was error to permit a, bill of sale of a slave to bo read in evidence, upon proof of the band writing of an attesting witness, when it appeared that such witness resided in the county where the suit was brought, and that ho was at home a short time before the term at which the causo was decided, that he was absent on necessary business, and expected to return in a few months, no subpoena having been issued or served upon him, nor any effort made to take his deposition, and no other facts being proven to warrant the admission of proof of his hand writing.
    It was error to permit the reading in evidence of a copy of a record of a bill of sale for a slave, executed and recorded in Kentucky, upon the testimony of the subscribing witness to such bill of sale, who stated simply that ho believed the copy to be substantially the same with the original, but that he had not seen the 01 iginal for many years, and when it did no; appear that he had ever compared the copy with the original, nor did he pretend to say that it was au exact or sworn copy.
    A bill of sale fur a slave, is not of such a nature as is authorized or required by law to be recorded, in order to give validity or effect to the instrument, and to make it a part of the public documents and records of the country, and therefore the record of such a bill of sals is incompetent to prove the oxisteuce or execution of the original.
    In an action brought by an administrator to recover a slave of his intestate, a leg-al distributee of the estate of such intestate is not a competent witness, lie is legally interested in the event of the suit, although upon his voir dire he swears that he has received his portion of the estate, and receipted the administrator therefor, tho receipt not being produce), or its non-production accounted for.
    This was aa action of detinue, brought, as the parties were described in the declaration by “ Arthur S-Jicks, administrator ése. of John Phillips, deceased, against “ Richard C. £>. Brown, executor of the last will and testament of Thomas Phillips, deceased,” for a mulatto woman slave. The defendant pleaded two picas, non aciinci, and the statute of limitations. The plaintiff took issue on the first, and replied to t.ie second that the action did accrue within five years, to which the defendant joined issue, and on the two issues, the ease went to trial before a jury.
    On the trial, the plaintiff offered ia evidence a bill of sale for the slave in question, from Ellendcr Phillips to Thomas Phillips, and proposed to prove the execution and delivery of said bill of sale, by proving the hand writing of J. D. McGee, subscribing witness thereto. In order to warrant the admission of this evidence, the plaintiff proved, that one of the three subscribing witnesses was dead, that the second was the plaintiff in the action, and disqualified as a distributee, and that McGee, tiie other witness, whose place of residence was in the county of Crawford, had left the county and gone to Washington City, about a week before the commencement of that term of the court, and so was absent from the state. No subpoena had been taken out for him, no commission issued, or applied for to lake his testimony, and no attempt made to postpone the cause, on account of his absence. Upon this testimony the court below, permitted the bill of sale to be proven, by proving the hand writing of McGee, and it was read in evidence.
    The plaintiff then offered Samuel Phillips ns a witness, who being sworn on his voir dire to ascertain his competency, stated that he was the son of John Phillips, the plaintiff’s intestate, and had been as one of his children entitled to a distributive share in his estate, hut that he was not interested in the event of the suit, because he had received his share of said estate from Thomas Phillips, when' the latter was administrator of said estate, and given his receipt for the same. The receipt was not produced, nor shown to the court. Upon this showing the witness was permitted to be sworn and to testify.
    The plaintiff then offered to read in evidence what purported to be a hill of sale for the negro in controversy, from Thomas Phillips to John Phillips and Nelly his wife, executed in Franklin county, Kentucky on the 14th May, 1822, and witnessed by Samuel Phillips. Appended to the copy offered in evidence was the certificate of Willis H. Lee, Clerk of the County Court of Franklin County, that “ the within bill of sale” was acknowledged before him by Thomas Phillips, and duly recorded, dated Oct. 27, 1823, and the certificate of A. 3EL Rennick, clerk of the same court, dated Feb. 17, 1837, that the said copy is truly copied from the records of my office, as wholly as the same remains of record in my office,” as also the certificate of Edward S. Coleman, “ presiding justice of the peace in and for the county of Franklin,” that Rennick was clerk of said county court at the time he signed the certificate, and that his certificate was in due form of law. The court below determined that this authentication was not sufficient to authorize the copy to be read in evidence, and the plaintiff then examined the Said Samuel Phillips to prove it to be a true copy of the original. Ee stated that he believed that it was a copy of the bill of sale, or the record thereof in Kentucky, but that he had not copied it from either, nor had he ever compared it with either,, or seen any person copy it; that he had read the original bill of sale once before and several times after, he signed it as a witness, but that he had not seen it since 1033. He said, however, that the paper produced was a true copy of it, and had been sent him by mail from Kentucky, and that the person who sent it to him stated that it was a copy either of the bill of sale, or the record, hut which ho could not say, but believed it had been taken from the record. The plaintiff was also sworn, and stated, that he did not know where the original bill of sale was, and that lie had never had or seen it, or made any enquiry for it. Upon this testimony the court permitted the paper to be read in evidence.
    The jury found for the plaintiff on both issues, and judgment was rendered for the slave, or seven hundred and fifty dollars. The defendant then moved for a new trial and an arrest of judgment, which motions were overruled, and he appealed.
    Tayioh., for the appellant:
    1st. Detinue may be supported against an executor, upon a bailment to the testator, where the goods have come to the executor's possession. But in no other case. In every other case he'must be sued individually. 1 Chit. 81, 82, 123, 123; 1 Saunders, 216, a; Com. Dig. Administrator 15; Cowp. 371,374. ^
    2d. Samuel Phillips, an heir and distributee of the estate, was not a competent witness. This is the general rule. 1 Phil. Ev., 50, 51. 1 Mawle, and Selwyn, 9; 2 Day, 339. So a residuary legatee is incompetent’even with a release. 1 Phil. Ev. 10 i. 4 Ca/mb. 27.
    The interest of the witness, when it appears or is admitted upon the voir dire, disqualifies, unless it is shown to have been removed by release, and the release he produced in court. 2 Stark. Ev. 755, 756, 760. Corking vs.. Gerard, 1 Comb. 37. And the witness having acknowledged that he was interested, his own statement that his interest had been removed, or no longer existed, could not render him competent, 1 Con. Rep. 46; 2 Stark,.Ev, 756, in note 1.
    
      But a release to the administrator could be a discharge or acquit-tancc only for so much of the effects of the estate as were then in the hands of the administrator, and were then due and payable. It could not by any language that could be used discharge subsequently accruing effects. 7 Com. Dig. Release of personal things, 229, 230, 231, 232; 4 Maul. & Scl. 423; 1 JA j?., 113; 9 Mass, 235; Salk. 575.' And when the suit is for accumulating interest, to be added to the general fund of the personal estate, the release must be specifically of the witness’s proportion or part of what is to be recovered in that suit, to render him competent. S Stark. Ev. 756, 758, in note I; 9 John. 123; 13 Mass Ji. 391.
    But a receipt is not a release. A release docs and must in such a case as this operate as au estoppel. A receipt never docs. A receipt leaves the party at liberty to show in any subsequent proceedings (in a •suit, for instance, which Le may bring to recover the very sum mentioned in the receipt itself,) that he has not received an amount corresponding with the import of the receipt, or any thin’g at all. But whenever an interested witness is rendered competent, by the interposition of a release, it must have the effect of producing a final and conclusive extinguishment of his interest. 3 Stark. Ev. 1014,1272; 2 ‘T. R. 386, 369.
    But it was not in the power of the distributee while the estate was in ■a course of administration, to extinguish his interest by a release. Because that interest consisted not only of a right to receive from the estate, as it appeal'd had in this case, but in a liability to refund. That was an interest which no person, but some or all of the other distributees or heirs could release. Camp. Dig. €8; Sect. 46.
    3d. The hill of sale from Ellcnder Phillips was not admissible. First, for the want of relevancy. Second, want of proof.
    The hand writing of a witness cannot be proved if the party have been guilty of any negligence, in not producing the witness. 7 Com. Dig. 447, and the authorities there cited. 8 John. Rap. 91; 5 Crunch. 13, 14; Cock vs. Woodrow, and Spring vs. South Carolina Ins. Co. 8 Wheat. 268. There was no attempt to produce the witness, before the resort to proof of his hand writing. If the witness can be produced he must. 1 Phil. Ev. 178, 179, i'2'3.419.
    4th. The paper purporting to be a copy oí a bill of sale from Thomas Phillips, to John and Ally Phillips, was improperly allowed to go in evidence. There was no attempt made to produce the original bill of Sa^e’ before ¿bey resorted to a copy, or copy of a copy. Such a course is inadmissible. The plaintiff must have used every reasonable degree of diligence to obtain the original, and failed in his attempts, before such evidence could be received. I Phil. Ev. 399, 400; 6 T. R. 236, Rex vs. Castleton.
    
    But a copy of a copy of any document can never be received in evidence, unless the first, from which the last is taken, be made a record by public authority, as cnroled deeds. 1 Phil. Ev. 408,410.
    A copy of a copy can be admitted only under an authentication by the proper officer or its proof by comparison with the original. In this case there was neither authentication nor proof of comparison Gilb. Ev.-, 1 Stark. Ev. 155, 158.
    The original was neither searched nor accounted for in any way.
    The document, if proved, would not have been relevant.
    Walker, and I'qwlbíi, contra:
    
    The court correctly permitted Samuel Phillips to testify. It is true he was one of the heirs of John Phillips, dec’d, but on his oath he stated that he had no interest, whatever in the issue formed, nor had he any interest in the estate, that he. had released his interest, and given a receipt. See Archbold’s Practice,, p. 171, where it is laid down clearly that it is not necessary to produce the release.
    The bill of sale was correctly recorded and certified in the state of Kentucky. It needed no additional proof to give it authenticity, and the court below, improperly as it is conceived, excluded the certified copy of the bill of sale, until it was proven by one who had read and examined the original before it was recorded, and swore that it was a true and perfect copy from the original. The only other exception taken, is relative to the exclusion of evidence in the admission of the bill of sale from Elcnor Phillips to Thomas Phillips. This bill of sale was proven by establishing the signature of the grantor after accounting for the absence or incapacity of the subscribing witnesses. / 2 Call. 574; 4 Johnson’s Reports, 461. Upon examination of the bill of sale it will be found that the evidence it aiioidcd was not prejudicial to the appellant’s interest, and could not have affected the decision of the jury. See 4 Planing & Munford, 550; 2 ditto, 55.
    Unless the exception is to the authentication of the bill of sale, the . court will presume that objection waived. See 2 Lilleti, 104.
   Lacy, Judge,

delivered the opinion of the Court: This is an action of detinue brought bj the appellee, administrator, of John Phil" lips, deceased, against the appellant, executor of the last will and testament of Thomas Phillips, deceased, for the recoverj of the slave in the declaration mentioned.

The declaration contains but one count, founded on a supposed case of bailment, and the unlawful detention of property. The defendant pleaded two pleas in bar of tho action. The first was a plea of non detinct, and the second, a plea of the statute of limitations. The plaintiff took issue on the first plea, and putin his] replication to the second —to which there was a joinder and issue. The parties went to trial on the issues thus formed, and the plaintiff to support his cause of action, read in evidence a bill of sale from Ellender Phillips, and a copy of a bill of sale from Thomas Phillips to John Phillips for tho slave in con1-troversy; and, also, called Samuel Phillips as a witness, who testified in the ■case. The defendant objected to the reception of tho bills of sale, and the testimony of Samuel Phillips as inadmissible evidence, but the court overruled his objections, and suffered the testimony to go to the jury. He then filed three several bills of exceptions to the opinion of the court, setting forth the nature and character of the testimony received, and the circumstances under which it was offered, spreading the whole matter upon the record. Tho case was then submitted to tho jury,.who found the issues for the plaintiff, and judgment was accordingly entered up in his favor for the slave in question.

The defendant then filed a motion for a new trial, and one in arrest of judgment. The court overruled both motions. He then prayed an appeal to the Supreme Court, which ivas granted.

The assignment of errors presents several highly interesting and important questions for our consideration and decision.

The first is, that detinue will not lie against an executor or administrator, except where goods are bailed to the testator or intestate upon a contract to redeliver them, or where he sells and agrees to deliver specific goods at a future day, and the goods come to the hands of tho executor or administrator. It is insisted, on behalf of the defendant’ that the present action does not fall within either class of these cases, and therefore cannot be maintained.

This question we do net consider as now properly before us, because the record shows no such state of facts as would legally give rise to it. By a critical analysis of the declaration, it will be perceived that the first object of our enquiry ought to be, to ascertain in what character the defendant is charged. In order that this matter may be put in a clear'point of view, vve shall have to copy the declaration:

Richard C. S. Brown, executor of the last will and testament of Thomas Phillips, deceased, was summoned to answer Arthur Hicks, administrator of all and singular the goods and chattels, rights and credits of John Phillips, deceased, heretofore unadministered upon, of a plea that he render unto the said Arthur Hicks, administrator as aforesaid, a certain mulatto woman slave named Sylvia, about 35 years of age; and thereupon the said Arthur Hicks, administrator as aforesaid, by attorney complains. For that, whereas the said Arthur Hicks, administrator as aforesaid heretofore, to wit, upon the 1st day of May, 1837, at the county of Crawford, and within the jurisdiction of this court, delivered to the said Richard C. S. Brown, executor as aforesaid, a certain mulatto slave named Sylvia-, about 35 years of age, belonging to and being part of the estate of John Phillips, deceased, heretofore unadministered upon, of great value, to wit, of the value of one thousand dollars, good and lawful money, to be delivered by the said Richard C. S. Brown, executor as aforesaid, to the said Arthur Hicks, administrator as aforesaid, when he, the said Richard C. S. Brown, executor as aforesaid, should be thereunto after-wards requested; yet the said Richard C. S. Brown, executor as aforesaid, although he was afterwards, to wit, on the day and year last aforesaid, at the county of Crawford aforesaid, requested by the said Arthur Hicks, administrator as aforesaid, soto do, hath not yet delivered the said mulatto slave named Sylvia, about 35 years of age, to the said Arthur Hicks, administrator as aforesaid, but hath hitherto wholly refused and still doth refuse, and unjustly detains the same from the said Arthur Hicks, administrator as aforesaid, to wit, at the county aforesaid, to the damage of the said Arthur Hicks, administrator as aforesaid, fifteen hundred dollars; therefore he brings his suit.” The plaintiff in conclusion of his declaration, made profert of his -letters testamentary on the estate of John Phillips, deceased.

Is the defendant here charged in his representative, or in his individual character? Wherever his name appears in the declaration, it will be seen that he is described “ executor as aforesaid.” Do these terms charge him as executor? or are they any thing more than a mere personal description?

The court is well aware that there exists a very general and deep rooted repugnance in the minds of a number of distinguished jurists against what may be termed legal subtleties or technicalities, and that many of the more modern decisions have gone very far to free the rules of practice and evidence from these over nice distinctions and unmeaning absurdities. It is worthy of being remembered that all the higher and more enlightened judicial tribunals of our own country, as well as in England, have been extremely cautious in introducing these improvements, and have displayed a laudable zeal and resolution in guarding the science of correct pleading from all improper innovations and unwarrantable encroachments, well knowing that proper legal forms and their corresponding appropriate remedies have their true origin in the highest sources of inductive philosophy, and lie at the very foundation of all the great and essential principles of political liberty, as well as of civil, justice; — and whenever they are lost sight of, or totally disregarded, the spirit and substance of things cannot and will not he long continued or preserved.

The object of all judicial proceedings is to arrive at legal certainty, and by this is meant certainty in general, in the names and characters of the parties that sue or are sued; certainty in the cause of action and breaches assigned, certainty in the issues and verdict, and certainty in the judgment and its incidents. This can only be arrived at by a fair and reasonable interpretation of the words used and their in-tendment, of the context and subject matter in dispute, of the supreme will or intention of the law, of the evils complained of, and of the remedies to be applied. It follows from these rules that the demandant or plaintiff, and the tenant or defendant, should be therefore well named, that the court may see in what character or capacity the parties sue or are sued, in order that they may be able to pronounce a valid judgment.

If a plaintiff sue a defendant and bis cause of action arises against Mm out of his office, he should be named or described in the declaration by his title of office. For instance, a suit against a sheriff’or collector. So, if land be demanded of a person held in right of his church, or if dower be demanded against a guardian, or an action brought against an heir. In all these cases the defendant should be charged, as sheriff, as collector, as parson, as guardian, and as heir; for without such an allegation, or one of equal certainty, a party cannot be held responsible in his representative character. 15 Edd. 4, 27; T. H. 1, 6, 64; S. 4. And in an action against an executor, the plaintiff ought to name the defendant as executor, and if he fail to do so, unless it somewhere appear in the pleadings, or by the assignment of the defendant, that there is a substantive allegation charging him as such, he cannot be considered as sued in his representative character. 1 Salk. 296; 2 Bos. & Pull. Brigden vs. Parkers, 424; 1 Com. Dig. Abatement, 89 (F. 20,) Ibid, Pleader (2 D. 2.) If the rule was different, the defendant could not plead ne ungues executor; or that he was not an administrator, or any thing else that would abate the suit or writ. Rattoon vs. Overacker, 8 Johnson's Rep. 97: 2 Call, 49.

Where the process is to answer the plaintiff in a special character or right, as if it describe him as suing qui tan, or as executor, or as assignee of a bankrupt, the declaration can only be in the same character or right; and if the plaintiff declare generally, the court will set aside the proceedings.

And if it has been ruled that, although the process describe the plaintiff “being the executor,or administrator, or the assignee of a bankrupt,” withoutintroducing any words that showed that he was sued as such, the plaintiff might nevertheless declare generally, treating the description as a mere superfluous addition, just as if any other idle, or unmeaning word had been in the declaration. 1 Chit. Pleadings, 284; Tidd's Prac. 459; 8 T. R. 414; 3 Wils, 616; 4 Bur. 24, 17; 3 Chit. Prac. 182.

In the case of the Dean and, Chapter of Bristol vs. Guyse, reported in 1st Saunders, 112, it was objected upon demurrer that tho plaintiff had mistaken his causa of action, for the defendant is sued in his own right, and not as executor, as he ought to have been. Fiiz. Brief, 111, 940. The counsel for the plaintiff said if it was not on the roll, that he would ask leave to discontinue. But on examining the roll it was found that although the defendant was not named as executor in the beginning of the declaration, yet in the subsequent part of it, he was so declared against, and consequently the averment was held to he good. For in the declaration it was expressly averred that William Guyse made his will and appointed the defendant executor, and entered, and was possessed as executor. This averment, the defendant might have traversed, and this was the reason why the allegation that he entered and was possessed as executor, was deemed sufficiently certain to charge him in his representative character. Holiday vs. Fletcher, 2 Ld. Raym. 1510; Kamns vs. Plughes, 7 Bro. Prac. Cas. 550.

The principle here decided is directly in point, and the case certainly a very strong one. But it is not altogether so conclusive as the case of Hempstall vs. Roberts and others, reported in 5th East, 154.

That case is a counterpart of the present one, and essentially the same in all in facts and allegations. There the action was upon a promise alleged to have been made to the plaintiffs, Executrix and Executors as aforesaid, anda proferí was made of the letters testamentary; and there were also other counts in the declaration, showing that the plaintiffs sued in their representative character. Upon this state of case, it was argued that by a necessary implication, as the promise was alleged to have been, made to the plaintiffs themselves, Executrix and Executors, it must be taken to be made to them in their representative character, and meant the same thing as if it had been said as Executrix and Executor as aforesaid; and more especially as the latter words as aforesaid had reference to the antecedent counts, in which it is admitted that they sued in their representative characters. This position was, however, deemed untenable, and Lord Ellen-borough in delivering the opinion of the court, said that the allegation in the declaration, the plaintiffs being the Executrix and Executors as aforesaid, is not a substantive averment of their suing as such or in their representative capacity, and that nothing by intendment can supply the allegation as Executrix and Executors as aforesaid.

The case there decided is similarly situated in all its features and proceedings, with the one now undor comideration, and the allegations in the two declarations are identically the same.

In both cases the letters testamentary were brought into court, but there the plaintiffs were suing, and the action founded on a promise made to themselves. Here the defendant is sought to be charged on a supposed case of bailment. In that case there were other counts in the declaration, which showed conclusively they sued in their representative characters. Here there is but one count, and it no where appears, cither in the beginning, the body, or conclusion of the declaration, that the defendant is charged as Executor.

The allegations in each declaration arc precisely the same, and even the terms of expression exactly similar. How, then, does the present case stand?

It is evident that there is no allegation or averment in the plaintiff’s declaration, charging the defendant as Executor, or any words tantamount or equivalent thereto; and it is equally certain that, unless there is some such allegation, he cannot be held responsible in his rep-rcscntativc character. The term “ as Executor ” is not words of form, but of substance, essentially entering into the nature of the averment, and constituting the substance or gravamen of the action.

There is astriking and wide difference between the averment in a declaration “ Executor, or being Executor as aforesaid,” and the direct allegation “as Executor aforesaid.’’’’ In one instance, Executor, or being Executor as aforesaid,” are mere words of description, having exclusive reference to personal identity: In the other, the term “ as Executor aforesaid,” has but one meaning, which is fixed bylaw, and that is the party against whom the charge is made, is sued in his representative character.

This being the case, the defendant in the action is not charged as the Executor of Thomas Phillips, deceased; for the declaration no where alleges that he was sued as such, and the words used, Executor as aforesaid, are mere matter of description and surplusage; and the antecedent as aforesaid, refers only to the personal description of the defendant. Indeed, it is very questionable whetherthe plaintiff him■self any whore shows that lie sues in his representative character, and certainly he does not, unless the declaration and subsequent pleadings clearly establish that fact. The questions still remaining to be decided by the assignment of errors, we will now proceed to dispose of in the order they have been made.

The bills of exceptions furnish a conciso statement of the proceedings of the court below, and they set forth with certainty and perspicuity the grade and nature of the evidence received, and the circumstances under which it was admitted. That the court erred in permitting the bill of sale from Ellender Phillips to Thomas Phillips to be read in evidence, is most certain. It was admitted upon the proof of the hand-writing of J. D. McGee, the only attesting witness that was examined as to its execution, or that was sworn upon that subject. It was not shown that the witness had become interested after his attestation, or that he had become infamous by the conviction of a felony, or that he was dead, insane, or that he was beyond the jurisdiction of the Court, or that it was utterly impossible, by due diligence or inquiry, to obtain his testimony, or to procure his personal attendance. It is stated that the witness resided in the county where the suit was brought, and that he was at home a short time before the term at which the cause was decided; and that he was absent on necessary business, and expected to return in a few months.

No subpcenawasissued, or served upon him; nor was there any effort made to take his deposition, or to secure his personal attendance.— Such being the slate of the case, it was clearly inadmissible to suffer the hand-writing of the attesting witness to the bill of sale, to be proved, and thereby establish the execution of the instrument itself by secondary evidence. This assignment of errors is, therefore, well founded. 1 Stark, 337; 5 Tr. Rep. 371, Gross vs. Stacker; 1 P. W. 289, Cunriffe vs. Sifton; 2 East, 183; Strange, 34.

It is apparent that a paper offered by the plaintiff in evidence and which purported to be a copy of a bill of sale from Thomas Phillips to John Phillips and wife, was clearly inadmissible as evidence. Should this court regard it as a private instrument between the parties, still the loss or destruction of the original is not satisfactorily accounted for upon any principle of evidence, or rule of action. It does not appear that the subscribing witness ever compared or examined the supposed copy with the original, nor did he pretend to say that he knew it to be an exact or sworn copy. All he states is, that he believes the contents of the two instruments are substantially the same, but he has not Seen the original for many years. He is the only subscribing witness, as appears from the copy, and his testimony constituted all the proof that was taken as to the execution, or contents of the original bill of sale. 7

Again: Is the bill of sale of such a nature as is authorized or required by law to be recorded, in order to give validity and effect to the instrument, and to make it a part of the public documents, or re" cords of the country? We are clearly of opinion that it is not. And such being the case, the supposed copy was inadmissible to prove the existence of the original, or its execution. As the instrument was not legally authorized to be recorded, the record itself would have been insufficient to establish that fact; and, therefore, much less can a supposed copy of a copy be allowed as competent evidence for the same purpose. 1 Stark, 154; 156 Bac. A. & T. 333, A. 8; 1st Mod. 117; Stark. 225; Gilb, 89; 5 Mass. 547.

It is a universal rule of practice, that a party will never be permitted to resort to secondary or inferior evidence, while it is in his power to adduce a higher grade, or more conclusive testimony. The best attainable evidence shall be adduced to prove every disputed fact.— 1 Stark. 389. This rule of evidence is founded upon a supposition of fraud, and its operation is every w ay highly salutary and important, an<^ ^ aPP^cs peculiar force to the proof adduced in support of both bills of sale. 1 Stark. 380. If a deed be lost, a copy is not evidence, if the deed itself be in existence or attainable. The subscribing witness that proves the bill of sale, or the supposed copy of a bill of sale from Thomas Phillips to John Phillips, is clearly incompetent, and ought not to have been permitted to give testimony in the cause. It is admitted that the witness, Samuel Phillips, is the son of the plaintiffs intestate, and that he is the legal distributee of the estate.

The plaintiff endeavored to restore his competency by swearing him upon his voir dire, and proving that he had received from, and receipted to the administrator for his portion of the estate. The receipt was not produced in court, nor was its non-production attempted to be accounted for in a legal manner. That the witness had a direct, certain, and vested interest in the event of the suit, cannot be denied, and that his interest was never relinquished or released, is equally evident. Where a witness, under a mistaken belief,- supposed he had released all demands and claims against the estate; but upon his own showing it appeared that he was, nevertheless, clearly entitled to his distributive share, he is still held to be incompetent.

This suit is instituted for the recovery of assets, and consequently the witness is legally interested in its event, and wholly incompetent. 1 Stark. 125, Matthews vs. Smith; 2 Y. & S. 426; 2 Dall. 124; Strange, 829.

If the view the court has taken of this subject be correct, and that it is they do not doubt, it follows as a necessary consequence, that all the material evidence relied on by the plaintiff to support his cause of action, was illegal and incompetent, and had it been excluded from the jury, as it ought to have been, a verdict of course must have been rendered in favor of the defendant. The admission by the court of improper or illegal testimony, is a good cause for a new trial. The Circuit Court, therefore, erred in not awarding a new trial in the case.

The opinion of the court below upon all the points reserved on the trial, must be reversed, the judgment set aside with costs, the cause remanded to be proceeded in agreeably to the decision of this court, a new trial awarded, and leave granted to the parties, to amend the pleadings, if asked for or desired.  