Basford v. Mills

Eccleston, J., delivered the following separate opinion concurring in the affirmance of the judgment. The point decided below and to which the exception was taken, is, that tire preliminary proof given was not sufficient to let in secondary evidence “to prove that the said Walter Mills was an insolvent debtor, and had taken the benefit of the insolvent laws of this State.” In the opinion delivered by the chief justice, the first ground taken for affirming the decision of the circuit court relates to the search for the insolvent papers of Mills. Considering the views expressed in the opinion on this point quite sufficient to sustain the decision below, I do not deem it necessary to assign a further reason for the affirmance. Judgment affirmed.

Le Grand, C. J., delivered the opinion of this court. This was an action of replevin to recover the possession of several negroes. The only questions which we are called upon to determine arise under the plea of property in a stranger. ³⁹² The defendant, “in order to introduce secondary evidence to prove that the said Walter Mills, (the plaintiff’s intestate,) was an insolvent debtor and had taken the benefit of the insolvent laws of this State,” proposed to prove by Mr. Gibson, who sometimes acted as the deputy of the clerk of Calvert county court, that he had made search, without'success, for the original papers in insolvency of Walter Mills; and also offered in evidence certain docket entries of the application of Mills, and of (he issue of a ca. sa. against him to enforce the payment of a judgment obtained against him by a certain William Dallam. To the admissibility of this evidence the plaintiff’s counsel objected; but the court admitted the evidence of the witness, Gibson, with the other evidence, but was of opinion, and so decided, that the whole thereof was insufficient as a foundation to let in secondary evidence as proposed.

To this ruling the defendant excepted. The proof of Mr. Sollers, the clerk of the county court, was, “that the only bundle of insolvent papers which he has ever seen goes back no farther than 1846, but that he does not knoiv whether there are any others or not. When a final discharge is granted, the papers are put in the judgment bundle of that term.” The witness, Gibson, proved, that “he had never made any search for these papers and records until during the present trial, when he was requested by defendant’s counsel to do so, and that he therefore examined the papers and recotds in the clerk’s office and a large and confused mass of records and papers, belonging to the clerk’s office, in a room up stairs in the court house, to which they had been removed for want of room and cases in