By the Court.—Woodruff, J.
—I.The first exception upon which the appellant insists as a ground of reversal, is, that the referee erred in admitting the certificates purporting to be a certified copy of the incorporation of the plaintiffs, filed in the office of the Secretary of State.
This exception may be properly considered in connection with another, viz., that the referee should have granted a nonsuit, as moved for. by the defendants, on the ground that the plaintiffs did not sufficiently prove that they were duly incorporated under the act under which they claimed such incorporation, viz., the act of February 17,1848. (Lews of 1848, ch. 40.)
In so far as these exceptions proceed upon the form of the certificate given in evidence, or the manner of its authentication, or any supposed defect therein, for want of compliance with the act, it must -suffice to say that the appellant has not thought proper to embody the certificate of association, or the copy produced on the trial, in the case or bill of exceptions, settled and furnished to the Court of Appeals. We are, therefore, unable to discover whether there are or are not any such defects therein, and must assume that no such defects exist, and that the appellant does not rely upon any such defects as grounds of objection, nor were any defects in the form of authentication thereof suggested in the argument of this appeal; and we have only to inquire whether, under the circumstances proved at this trial, the production of a certified copy from the office of the county clerk could be dispensed with, and whether Without such production the incorporation of the plaintiffs could be proved at all, and was sufficiently proved.
'The act of 1848 requires that a certificate be filed in the office of the clerk of the county, and a duplicate thereof in the office of the Secretary of State; and, in the ninth section, the act provides that “ the copy of any certificate of incorporation, filed in pursuance of the act, certified by the county clerk, or his deputy, to be a true copy, and of the whole of such certificate, shall be received in all courts and places as presumptive legal evidence of the facts therein stated.”
In the first place, we do not regard this provision, as necessarily excluding every other mode of proving the fact of incor[189]*189poration; it provides one mode of proving the fact, a simple, and in general an easy mode of doing so.
But if such certificate ought to be regarded as the best evidence, and, therefore, to be produced in the first instance, the rule requiring a party to produce the best evidence only holds when such production is possible ; and on its being shown that, for some reason not within the control of the party, the best evidence cannot be produced, secondary evidence may be given.
Hence the plaintiffs proved, by evidence satisfactory to the referee, that the certificate was duly executed, and was filed with the county clerk, and the fees paid. The party was no longer responsible for the safe-keeping of the certificate, and if it was lost by the county clerk after it had been left with him, the party could not be prejudiced thereby, if he could prove the fact by other competent testimony. This the plaintiff did by the best evidence that can be suggested. They proved the fact of filing, and they proved the contents of the paper filed by the production of a copy sworn to be a true copy of the certificate. From the necessity of the case, resulting from the* loss of the paper filed, it was impossible that the county clerk could certify the paper produced to be a copy, and the plaintiffs were not responsible for the inability of the clerk to certify, and should not be prejudiced by it. Any other doctrine would render the proof of the existence of any corporation so organized dependent upon the care of the county clerk in preserving papers filed ; and in case of the accidental destruction of papers in that office render such proof wholly impossible. Ho such doctrine can be admitted for á moment.
In the next place, if the contents of the certificate could not be established by parol evidence, or by a sworn copy, the duplicate produced from the office of the Secretary of State, was the highest evidence. It was proved that the certificate was executed in duplicate, and one was filed in the office of the Secretary of State. A copy of this was produced, and was not only so certified, but was also sworn to be a true copy. We have no hesitation in saying that, even if there were no other provision by statute bearing on this subject, this proof of the plaintiffs’ incorporation was, after proof of the loss of the paper filed by the county clerk, competent and sufficient.
[190]*190Again: the certificate was filed in the office of the Secretary of State, in compliance with the express provisions of the law; and by the general laws of the State (1 Rev. Stat., 166, § 4), it is enacted that “ all copies of records and papers in the office of the Secretary of State, certified by him, and authenticated by the the seal of his office, shall, in all cases, be evidence equally and in like manner as the original.”
These views are sufficient; and we think they conclusively dispose of all objections founded on the idea that the plaintiffs were bound to prove their incorporation by producing either the original or a certified copy thereof from the county clerk’s office; and, as already suggested, the appellant not having seen fit to insert the paper or papers in his case or exceptions, we have no means of examining the contents, or form, or authentication thereof, to determine whether they are, or are not, a compliance with the statutes. The finding of the referee, therefore, must stand unimpeached by any thing appearing before us on this appeal.
II. The next objection urged upon our attention is, that the plaintiffs should have proved a demand of the property before action brought.
Where property is levied upon and taken by a sheriff or constable under an execution, and it appears that when the levy was made, the property was in the actual possession of the defendant in the execution, the sheriff or constable may be entitled to a demand of the property before action brought for such taking. It does not follow that the plaintiff in execution actually directing such levy and taking, is entitled to any such demand, if, in truth, the party so in possession has no leviable interest in the property taken.
In this case, Springsteen, the constable, made no defence; he suffered judgment by default; as to him, therefore, the question does not arise.
But the very question, in whose possession was the property found ? was one of the questions most severely contested on the trial. The same proof that bore upon this question, bore also on the inquiry whether the property belonged to the plaintiffs or to the defendants in the execution ; and it is, we think, entirely clear, that if the proof did not establish that the property belonged to the defendants in the execution, then it did [191]*191not prove that the property, when levied upon, was in the possession of those defendants.
The referee has found that it was the plaintiffs’ property, and, unless that finding was against the evidence, we must regard the same proofs as establishing this point also ; and if the defendant desired a specific finding upon the question, from whose possession was the property taken ? he should have called the attention of the referee to that subject, and procured such finding thereon.
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By the Court.—Woodruff, J.
—I.The first exception upon which the appellant insists as a ground of reversal, is, that the referee erred in admitting the certificates purporting to be a certified copy of the incorporation of the plaintiffs, filed in the office of the Secretary of State.
This exception may be properly considered in connection with another, viz., that the referee should have granted a nonsuit, as moved for. by the defendants, on the ground that the plaintiffs did not sufficiently prove that they were duly incorporated under the act under which they claimed such incorporation, viz., the act of February 17,1848. (Lews of 1848, ch. 40.)
In so far as these exceptions proceed upon the form of the certificate given in evidence, or the manner of its authentication, or any supposed defect therein, for want of compliance with the act, it must -suffice to say that the appellant has not thought proper to embody the certificate of association, or the copy produced on the trial, in the case or bill of exceptions, settled and furnished to the Court of Appeals. We are, therefore, unable to discover whether there are or are not any such defects therein, and must assume that no such defects exist, and that the appellant does not rely upon any such defects as grounds of objection, nor were any defects in the form of authentication thereof suggested in the argument of this appeal; and we have only to inquire whether, under the circumstances proved at this trial, the production of a certified copy from the office of the county clerk could be dispensed with, and whether Without such production the incorporation of the plaintiffs could be proved at all, and was sufficiently proved.
'The act of 1848 requires that a certificate be filed in the office of the clerk of the county, and a duplicate thereof in the office of the Secretary of State; and, in the ninth section, the act provides that “ the copy of any certificate of incorporation, filed in pursuance of the act, certified by the county clerk, or his deputy, to be a true copy, and of the whole of such certificate, shall be received in all courts and places as presumptive legal evidence of the facts therein stated.”
In the first place, we do not regard this provision, as necessarily excluding every other mode of proving the fact of incor[189]*189poration; it provides one mode of proving the fact, a simple, and in general an easy mode of doing so.
But if such certificate ought to be regarded as the best evidence, and, therefore, to be produced in the first instance, the rule requiring a party to produce the best evidence only holds when such production is possible ; and on its being shown that, for some reason not within the control of the party, the best evidence cannot be produced, secondary evidence may be given.
Hence the plaintiffs proved, by evidence satisfactory to the referee, that the certificate was duly executed, and was filed with the county clerk, and the fees paid. The party was no longer responsible for the safe-keeping of the certificate, and if it was lost by the county clerk after it had been left with him, the party could not be prejudiced thereby, if he could prove the fact by other competent testimony. This the plaintiff did by the best evidence that can be suggested. They proved the fact of filing, and they proved the contents of the paper filed by the production of a copy sworn to be a true copy of the certificate. From the necessity of the case, resulting from the* loss of the paper filed, it was impossible that the county clerk could certify the paper produced to be a copy, and the plaintiffs were not responsible for the inability of the clerk to certify, and should not be prejudiced by it. Any other doctrine would render the proof of the existence of any corporation so organized dependent upon the care of the county clerk in preserving papers filed ; and in case of the accidental destruction of papers in that office render such proof wholly impossible. Ho such doctrine can be admitted for á moment.
In the next place, if the contents of the certificate could not be established by parol evidence, or by a sworn copy, the duplicate produced from the office of the Secretary of State, was the highest evidence. It was proved that the certificate was executed in duplicate, and one was filed in the office of the Secretary of State. A copy of this was produced, and was not only so certified, but was also sworn to be a true copy. We have no hesitation in saying that, even if there were no other provision by statute bearing on this subject, this proof of the plaintiffs’ incorporation was, after proof of the loss of the paper filed by the county clerk, competent and sufficient.
[190]*190Again: the certificate was filed in the office of the Secretary of State, in compliance with the express provisions of the law; and by the general laws of the State (1 Rev. Stat., 166, § 4), it is enacted that “ all copies of records and papers in the office of the Secretary of State, certified by him, and authenticated by the the seal of his office, shall, in all cases, be evidence equally and in like manner as the original.”
These views are sufficient; and we think they conclusively dispose of all objections founded on the idea that the plaintiffs were bound to prove their incorporation by producing either the original or a certified copy thereof from the county clerk’s office; and, as already suggested, the appellant not having seen fit to insert the paper or papers in his case or exceptions, we have no means of examining the contents, or form, or authentication thereof, to determine whether they are, or are not, a compliance with the statutes. The finding of the referee, therefore, must stand unimpeached by any thing appearing before us on this appeal.
II. The next objection urged upon our attention is, that the plaintiffs should have proved a demand of the property before action brought.
Where property is levied upon and taken by a sheriff or constable under an execution, and it appears that when the levy was made, the property was in the actual possession of the defendant in the execution, the sheriff or constable may be entitled to a demand of the property before action brought for such taking. It does not follow that the plaintiff in execution actually directing such levy and taking, is entitled to any such demand, if, in truth, the party so in possession has no leviable interest in the property taken.
In this case, Springsteen, the constable, made no defence; he suffered judgment by default; as to him, therefore, the question does not arise.
But the very question, in whose possession was the property found ? was one of the questions most severely contested on the trial. The same proof that bore upon this question, bore also on the inquiry whether the property belonged to the plaintiffs or to the defendants in the execution ; and it is, we think, entirely clear, that if the proof did not establish that the property belonged to the defendants in the execution, then it did [191]*191not prove that the property, when levied upon, was in the possession of those defendants.
The referee has found that it was the plaintiffs’ property, and, unless that finding was against the evidence, we must regard the same proofs as establishing this point also ; and if the defendant desired a specific finding upon the question, from whose possession was the property taken ? he should have called the attention of the referee to that subject, and procured such finding thereon. In the absence of such finding, we must take the fact to be favorable to the plaintiffs who have prevailed, since the evidence would, we think, clearly warrant such a finding. (Fish a. Wood, 4 E. D. Smith's R., 627; Hardin a. Palmer, 2 Ib., 172 ; Viele a. The Troy and Boston Railroad Company, in Court of Appeals, December, 1859.)
It is only when the property is lawfully in the possession of the defendant that a previous demand before suit brought is necessary.
III. It is claimed that, inasmuch as the person in charge of the manufactory pointed out the property as the property of the defendants in the execution, the plaintiffs are, therefore, concluded.
The mere circumstance that Hazzard, the person referred to, was in the employment of the defendant, wrought no such consequence. He was not the general agent of the defendant. It is testified that one Griffin was the plaintiffs’ agent; that Hazzard stayed there and watched the building; was employed to take in and put out goods, and to watch the premises, and sometimes sold small quantities of oil. He could not estop the plaintiffs by consenting to a levy in satisfaction of the debt of a third person, any more than he could lawfully deliver the plaintiffs’ property to the defendant (the judgment-creditor) in payment of his judgment. Besides, Hazzard testified that he requested the defendants not to take the property, and that while he remained there they did not remove it; but he locked the door and left, in order to find and consult the plaintiffs’ agents, and in his absence the defendants, by some means, opened the door, and were removing the oil- when he returned.
IV. It only remains to consider, whether the finding of the referee, that the property was the property of the plaintiffs, was so against the weight of the evidence, that the judgment should be reversed upon that ground.
[192]*192It must be considered that there were many circumstances of suspicion in respect to the title of the plaintiffs to the manufactory, and the machinery therein; and there was proof that the machinery had been claimed and taken by the American Oil Manufacturing Company (the judgment-debtors) by process in a replevin suit that was still pending. The proofs relating to the incorporation of the plaintiffs; the ignorance of Hazzard, one of the employees in the factory, that there was any other company than the American Oil Manufacturing Company, and many other circumstances were justly calculated to create the suspicion that the last-named company, having become embarrassed, the scheme of- forming, or pretending to form, a new company, was devised by its managers, in order to avoid the payment of the debts of the old company, and yet obtain the possession and enjoyment of its property under a new name.
But, on the other hand, there was positive proof that the new company was incorporated. There was some evidence that the new company purchased the machinery and lease of the factory, and the proof was uncontradicted that the oil in question was manufactured by the new company.
In a great conflict of evidence tending to establish either claim, we cannot say that the referee so erred in his conclusion that his finding should be set aside. We could not do this even- if we thought we should have.formed the opposite conclusion.
An attempt was made to impeach the plaintiffs’ witnesses; on the other hand, their characters were supported by other testimony. The case depended in no slight degree upon the credibility of the witnesses whom the plaintiffs produced; and if their testimony was believed, the case was clearly with the plaintiffs ; the oil was their property.
Under such circumstances, the finding of the referee must be taken by us as conclusive.
The judgment should, therefore, be affirmed with costs.