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.