
    Cheatham v. Riddle, Adm’r.
    The act of 1848, (Hart. Dig., p. 802,) regulating sequestrations, did not dispense with the provisions of tho one hundred and forty-third section of the act of184fi. to regainte proceedings in the District Court, (Kart. Dig., art. 79.">,) in order to obtain a writ of sequestration. Jtis therefore necessary for the party applying to make affidavit of the truth of the matter set forth in his or her petition.
    A writ of sequestration is only an auxiliary process, and although erroneously issued, does not affect the judgment upon the merits so far as the defendant is concerned. (Note 35.)
    ■Where a sequestration is improperly issued and the defendant replevies tho property, the sureties in the replevy bond should appeal, on appeal by the defendant alone. it is only a question of costs. (Note3G.)
    Persons whoso interests or liabilities are several may sever and prosecute different writs of error to the same judgment. (Note 37.)
    Where there was evidence sufficient to warrant the belief that the person as agent of whom tho defendant claimed had gotten possession of a bill ofsale from himself to the plaintiff and fled the country with it, it was held that there was no necessity for further proof of search nor of notice to the defendant to produce it before the introduction of secondary evidenco of its contents.
    A party objecting to evidence must, in general, stale the ground of his objection. Hut to this rule there may be exceptions, depending on the character of the proposed evidence; it may be so manifestly incompetent to prove the proposed fact, or its inndmNsshiiM v maybe so apparent, that ic will be sufficient to object generally to its introduction, t Note 38.)
    What degree of diligence in the search is necessary is not easy to-define, as each case depends much on its peculiar circumstances; the object of the proof is merely to establish a reasonable presumption of the loss of the iiist> ument, and this is a, preliminary inquiry addressed to tho discretion of the judge.
    Everything is to be presumed in ■Qdiinnspoliatcris; therefore, where the evidence was sufficient to warrant the belief that the party in interest hail gotten possession of tho bill nf «.jue and fled the country with it.it was hold to be sufficient proof of the execution of the bid o< sale.
    In an action for the recovery of a slave or his value, a judgment that the plaintiff recover of the defendant the sum of five hundred dollars, and in case of the failure of the defendant to deliver up the negro that he recover of the defendant and his sureties in the sequestration bond said sum of five hundred dollars, is not propeidyinthea,UeraativeTasitshGui.dbe *
    
      Appeal from Titus. This suit was brought by the appellee torecover of the appellant two negroes, John and America, claimed tobe the property of the plaintiff's intestate, Benjamin Elliot. Upon instituting this suit the plaintiff filed an affidavit, stating that ho feared that the defendant would remove the negroes sued for beyond'the limits of this State during the pendency of the suit. A writ of sequestration was obtained and served, and'the defendant entered into bond with two sureties for tiie forthcoming of the negroes to abide the judgment of tiie court. Tiie defendant moved the court to quash 'the writ of sequestration, because there was no affidavit of the truth of the matters set forth in the petition. The court overruled the motion. The defendant pleaded that the slaves wore the property of his brother, James Cheatham.
    Tt was in proof that the plaintiff’s intestate, Elliot, came to the country with James Cheatham in 1843, and that lie had since resided with him ostensibly as his overseer until the 25th day of December, 1848; that on the evening of that day they liad a dispute about a settlement and proceeds of the last year’s crop. Tiie deceased, Elliot, complained that lie had not received his part of the proceeds. 'Cheatham replied, in substance, that he, Elliot, knew that he would got one-half of tiie money made on the place. Cheatham requested a witness, an attorney who was present at his house, to examine certain papers relating to a law suit in Tennessee, and called oil Elliot for the papers, who refused to bring them, upon which Cheatham threatened to break open the trunk! Elliot then gave him the key, and he (Cheatham) brought a bundle of papers and laid them before the witness, after which lie lay down, being intoxicated. Elliot came and took from the bundle some papers and went out of the house. The witness went out shortly afterwards and found Elliot standing in the yard. 'The latter handed him a paper and requested him to road it. The paper purported to he a bill of sale from Cheatham to Elliot, made some years before, and included a boy named John. Elliot proposed to the witness to read other papers; the papers appeared to the witness to he the same taken from the bundle by Elliot; the witness did not know Cheatham’s handwriting. 'To the admission of this testimony the defendant objected, but the court "overruled the objection and-admitted the testimony. Preparatory to its introduction it was proved by the plaintiff, the defendant objecting, that Elliot came to his death by violence in the house of Cheatham on the evening of the day on which these facts occurred, and about two hours after; that when his death was discovered Cheatham had absented himself, and has not been, since seen in the country. A key was found in the pocket of the deceased, with which his trunk was opened; no papers of value were found. There was a discrepancy in the testimony as to whether the trunk exhibited marks of having been opened. The defendant immediately thereafter took possession of James Cheatham’s negroes and crop, and acted as his agent, generally; lie still had possession of the negroes sued for ami held them for James Cheatham. The plaintiff testified that as administrator of the estate of Elliot he had applied to the defendant for the papers and property belonging to the deceased; that lie had received some papers, but there was no bill of sale among them, nor liad he found nor did he know of any.
    It was in proof tiiat the deceased had often claimed the boy John as his property in the hearing of one of tiie witnesses; but to others he denied owning any of the negroes' on the place. He iiad declined to give in as his property to the assessor any of the negroes, and referred him to Cheatham, whose property he said they were. He represented himself as overseer to those who inquired, and claimed no property but one horse. The jury returned a verdict for the plaintiff for the boy John, and assessed bis value at $500, upon which tiie court gave judgment for the plaintiff that lie recover of the defendant the value of the negro as found by tiie jury, and in case of the failure of the defendant to deliver him that he recover of the defendant and his sureties in the sequestration bond said value. There was a motion for a new trial which tiie court overruled, and tiie defendant appealed.
    
      The errors assigned- were—
    1st. Tlie overruling of the motion to qnash the writ o£ sequestration.
    2d. Tlie inadmissibility of tlie evidence introduced by the plaintiff and its insufficiency to authorize tlie verdict.
    
      J. II. Rogers, for appellant.
    
      8. F. Moseley and 0. 0. Hartley, for ax>pellee.
   Wheeler, J.

Tlie act of 1S4G (Hart. Dig., art. 70S) provides that “ no writ of qnin limet, attachment, or any other original writ or 'process whereby tlie property of any citizen of this State shall be ordered to be seized or taken into custody, shall be issued by any civil officer of this State or by order of any judge of tlie same, unless the party applying for such writ or process shall first make affidavit in writing of the truth of the matter set forth in his petition.”

It is insisted for the appellee that this provision is dispensed with by die act of 1S48, regulating sequestrations, (Id., p. 802,) and that under the provisions of tlie latter statute it is not necessary that a party applying for a writ of sequestration should make affidavit of die truth of the 'matters set forth in his petition.

We are of opinion that the act of 1848 was not intended to dispense with the necessity of an affidavit by die party applying for the writ to tlie truth of the material facts of his case. The affidavit was therefore insufficient., and the court erred in refusing to qnash tlie writ of sequestration.

The error however is not in a matter which goes (o the rigid of the plaintiff to maintain the action. The sequestration was only an auxiliary process; and the ruling of the court upon it can now he material only in so "far as respects tlie sureties in the bond given by the defendant for the forthcoming of the property to abide the judgment of tlie court. Tlie sureties have not appealed. and an error in the judgment as (o them will not authorize a reversal of the judgment against their principal. (Hendrick v. Cannon, 5 Tex. R., 248.) Mor will tlie judgment of this court conclude them. Not being before the court they will not be affected by the judgment, but will still be'entitled to their writ of error within the time prescribed by law.

2. In respect to the question of the admissibility of the evidence introduced by the plaintiff to prove the right of property in his intestate, it is objected for the appellee that tlie ground of the objection to tlie evidence is not stated in tlie bill of exceptions.

Wc have repeatedly decided that a party objecting to evidence must, in general,state (he ground of his objection. In taking his bill ofexeept.ionst.be party excepting must, it lias been said, “lay his finger on those points which arise either in admitting or denying evidence.” (Cow. & Hill’s notes to Phil. Ev., Part. 2, n. 403, p. of notes 778-9, 3d edit.) lint to this rule there may bo exceptions depending on the character of the proposed evidence. It may be. so manifestly incompetent to prove the proposed fact, or its inadmissibility may be so apparent, that it will he sufficient to object generally to its introduction. In tlie present ease the ground of the, objection does, it is conceived, sufficiently appear from the record. The judge certifies that he admitted the testimony of tlie witness in relation to the hill of sale on the ground that its loss had been accounted for. The question considered by the court evidently was, whether the absence of the bill of sale was sufficiently accounted for to authorize the admission of secondary evidence. Tlie judge decided, and under tin; circumstances we think rightly, that it was.

In general, where tlie best evidence is not attainable, a party may resort to secondary evidence.

In tlie present case the judge doubtless thought tlie evidence sufficient .to warrant the belief that James Cheatham liad gotten possession of tin- bill Of sale and tied tlie country with it. Evidence of that fact., sufficient to satisfy the court of its existence, dispensed with the necessity of notice to the defendant to produce the instrument, or a further search for it.

XTqte 38. — Trammell v. Trammell, 20 T., 406.

Noth :jo. — Trammell v. Trammell, 15 T., 201. Where the judgment has been affirmed on appeal by the defendant the sureties may prosecute their writ of error to the judgment so far as it affected them. (Sartain i>. Hamilton. 14 T., 348.)

IQote 3?. — Herndon v. Hremond, 17 T., 432.

Note 33. — -Hailey u. Kniglu, cmic, 68.

“What degree of diligence in the search is necessary, says Greenlcaf, is not easy to define, as each case depends much on its own peculiar circumstances ; and the question whether tlie loss of tlie instrument is sufficiently proved to admit secondary evidence of its contents is to he determined by the court and not by tlie jury.” Again, lie says: “It should be recollected that the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and that this is a preliminary inquiry addressed to the discretion of tlie judge.” (1 Greenl. Ev., sec. 558.)

It. surely was not an unreasonable supposition, from the facts in evidence, that Cheatham had possessed himself of tlie bill of sale, and taken it with him in his flight from the country. If so, it must be supposed to have been beyond tiie power of the plaintiff, by any reasonable degree of diligence, to produce it. It was as if the instrument had been destroyed by Cheatham. It was by his act as effectually placed beyond tiie power of the plaintiff to produce it. The law on this subject is thus stated by Chief Justice Gibson, in McReynolds v. McCord, 6 Watts R., 290, 291: “Everything is to be presumed in odium. sx>oüaioris; and had it certainly appeared that the destroyed paper purporting to be an agreement suchas is attempted to be established, it would have sufficed for the admission of secondary evidence of its contents. In an anonymous case in Ld. Jiaym., 791, a sworn copy of the defendant’s note torn up by him was allowed to go in proof of it, and Lord Holt remarked that a small thing will supply an ‘instrument destroyed by one against whose title it operated. So in Young v. Holmes, 1 Stra.. 71, an attorney who had examined a release withheld was admitted to prove tiie contents of it. In neither of those cases does it appear that specific evidence of execution was given, and it seems clear on principle that if there be'uo subscribing witness tlie act of destruction is itself tlie best evidence of which such a case is susceptible, because it has put it out of tlie party’s power to submit tiie paper to a witness of the handwriting, and tlie act of a spoiler is in its nature equivalent to confession.”

Tiiis doctrine applies with peculiar force to a case like the present, where not only is the instrument placed beyond reach, but the only intelligent being, perhaps, who could have given information of tiie facts lias gone beyond the reach of legal process, under so extraordinary circumstances. Had Elliot survived, tlie evidence might have been of a more satisfactory character.

As respects the sufficiency of the evidence, however, this case comes fully within the principle of a class of cases in which tlie court has refused to set aside the verdict or reverse the judgment on the ground of insufficiency of evidence. (Briscoe v. Bronaugh, 1 Tex. R., 326; Duggau v. Cole, 2 Id., 381; Wells et al. v. Barnet, 6 lb.)

The judgment, however, does not conform to the verdict, in that it is not in tlie alternative for tlie property specifically or its value. It must therefore be reversed, and such judgment rendered as the court below ought to have rendered.

Judgment reversed.  