#### WILLIAM D. SMITH v. BENJAMIN WILSON.

A registered copy of a deed cannot be received as evidence of title, without accounting for the absence of the original.

In trespass quarc clausum fregit,ii the plaintiff fails to prove title to the locus in quo, he must, to entitle him to recover, prove that the trespass was committed on lands of his, either enclosed or improved by cultivation.

Trespass quare clausum eregit, tried before his honour Judge Martin, at Buncombe, on the last Circuit. On the trial, the plaintiff gave in evidence a grant from the state to James Miller, and a deed of conveyance from Miller to John Carson, and then offered a registered copy of a deed from Carson to himself. The reception of this copy was objected to, on the ground that the original should have been produced, or its loss accounted for, and was rejected by the Court. The trespass complained of, was committed upon woodlands, and old cleared lands, lying out of the enclosures of the plaintiff, but within the bounds of the grant, under which the plaintiff claimed. His honour instructed the jury, that the plaintiff could not recover, unless he proved a trespass on lands enclosed by his fences, or improved; that if the trespass was on other parts of his lands, not so enclosed, or actually improved by cultivation, although the same might be within the boundaries of the grant under which he claimed, he could not recover. The plaintiff submitted to a non-suit, and appealed.

No counsel appeared for either party.

*41Daniel, Judge.

— The plaintiff offered a copy of the deed from Carson to himself to complete his .chain of title, so as to show that he had a constructive possession of the lands trespassed on by the defendant. This evidence was properly rejected, as he had not accounted for the original deed, which was the best evidence of his title. The practice has invariably been to receive the affidavit of the party, as to the loss or destruction of the original. In Taylor v. Riggs, 1 Peters’ Rep. 591, the Court say, that the affidavit of the party to the cause, of the loss or destruction of an original paper, offered in order to introduce secondary evidence of the contents of the paper, is proper. If such affidavit could not be received, of the loss of a written contract, the contents of which are'well known to others, or a copy of which is at hand, a party might be completely deprived of his rights, at least in a court of law.

It is a sound general rule, that a party cannot be a witness in his own cause; but many collateral questions arise in the progress of a cause, to which this rule does not apply. Questions which do not involve the. matter in controversy, but matter which is auxiliary ‘to the trial, and which facilitates the preparation of it, often depends upon the oath of the party. An affidavit of the materiality of a witness, for the purpose of obtaining a continuance, or a commission to take depositions, or an affidavit of his inability to attend, is usually made by the party, and received without objection. On incidental questions, which do not affect the issue to be tried by the jury, the affidavit of the party is received. The testimony which establishes the loss of a paper, is addressed to the Court, and does not relate to the contents of the paper. It is a fact which may be important as letting the party in to prove the justice of the cause, but does not itself prove any thing in the cause. And as a matter of practice, it may be observed, that it ought to be in writing, that the Court only may hear it.

Secondly. Trespass to lands is an injury to the possession ; and the plaintiff must show, that he has either a constructive or an actual possession of the locus in quo. *42The plaintiff having failed to show that he had any title to the land, when the supposed trespass was committed, therefore, failed to show a constructive possession; then the Court was certainly right, in stating to. the plaintiff, that he could not proceed without showing an actual possession of the locus in quo the trespass was alleged to háve been committed.

Per Curiam. Judgment affirmed.