
    Charles C. Scott, use of Socrates Parker, vs. Edgar Loomis.
    By the laws of Alabama, justices of the peace are required to enter, in books to be kept for the purpose, the names of the plaintiff and defendant in suits instituted before them, the debt and costs adjudged, the time when the warrant issued, when it was returnable, and when judgment was given; and these books thus kept by justices, have been decided, it seems, in that state, not to be records.
    In an action in this state, involving the title to a slave sold under execution in Alabama, on a justice’s judgment rendered in that state, the party claiming, under the sale in Alabama, made affidavit of the loss of the hook kept by the justice, in which the entry of the judgment and proceedings, as required by the law of Alabama, was kept; and offered to prove by depositions, the contents of the book and character of the entry in the case under which he claimed : Held, that it was competent for the party to prove, by his own affidavit addressed to the court, the loss of the justice’s docket, with the view of laying the foundation for the introduction of secondary evidence of its contents; and upon the court’s being satisfied of the loss of the docket, to prove by parol its contents.
    
      In error from the circuit court of Kemper county ■ Hon. A. B. Dawson, judge.
    Charles C. Scott, sheriff of Kemper county, who sued to the use of Socrates Parker,"sued Edgar Loomis and John T. Moseley upon a bond with consideration to indemnify and save harmless the nominal plaintiff, the sheriff, for seizing and selling a negro boy, Jim, levied on by him as the property of one John Root, by virtue of an execution from Noxubee circuit court, in the name of E. O. & E. Loomis against Root; also to pay to all persons claiming title to said slave, all damages they might sustain by reason of such seizure and sale.
    To the declaration, in the usual form, averring that Parker held and -claimed title to the slave, and that he had sustained damage, &c., the defendant plead in substance that the title to the slave was not in the plaintiff at the time of seizure, &c., and that he had not sustained damage; to which the plaintiff replied that he claimed title to the slave, and had sustained damage, &c.
    On the trial, the plaintiff claimed title, through a constable’s sale under a justice’s execution and judgment in Alabama, at the suit of B. R. Barnes against Root, and proposed to show by his own affidavit, that the original book or docket containing the judgment and proceedings under which he claimed, was put into his possession by the justice having it in charge, to be used as evidence in this cause, and was by him, the plaintiff, lost; this affidavit was offered for the purpose of laying a ground for secondary evidence of the judgment; this testimony was objected to, on the ground that the plaintiff could not be allowed to testify in his own case, and the objection was sustained by the court.
    The plaintiff then offered to read the depositions of various witnesses, proving the entry on the justice’s docket of the judgment and proceedings under which he claimed, and among others the evidence of the justice himself; and offered also the process in attachment, upon which the judgment in Alabama was founded, and the execution with the constable’s indorsements, and return of the sale to Parker, &e.; but these were all excluded, on the ground that the plaintiff had shown no judgment to sustain the execution and sale. Other evidence was also offered, which, under the decision, need not be noticed. The laws of Alabama, found in Aikin’s Digest, were admitted by. counsel as evidence in the case. The jury found for the defendants, and the plaintiff sued out this writ of error.
    
      J. G. Baldwin, for plaintiff in error.
    1. The court erred in refusing to permit the plaintiff to prove by his own affidavit the loss of the justice’s docket. Tayloe v. Riggs, 1 Peters, 596, for the reason and propriety of the rule; 5 N. H. 356; 1 Harring. 444 ; 4 Blackf. 369 ; 7 Pickering, 62 ; and see further, 2 Phil. Ev., C. & PI.’s notes, Part 1, p. 138, for all the American cases collected; Smith v. Miss. Sf Ala. R. R. Co., 6 S. &• M. 180; Jackson v. 'Frier, 16 Johns. 193.
    2. That the original docket and papers are evidence, see 3 Ph. Ev., C. <fc H.’s notes, 1074, Part 2.
    It may be said, that we were not injured by the rejection of evidence of loss of the book; for we could, without proof of loss, introduce secondary evidence of the contents of it. True; but the rule is, we were bound to produce the best evidence in our power, before we are allowed inferior. While the book is in existence, and it is presumed to be until it is shown not to be,' we could either have introduced the book, or sworn copies of the entries. 14 Serg. & R. 44; 3 Johns. 429 ; 1 Ala. 129; 3 Stew. P. 351; lb. 398 ; 4 N. H. 451; 2 Pick. 448 ; and see 3 Phil. Ev. C. & H.’s notes, 1112- 1116, as to proof of justice’s proceedings. But this is not the only way. In reference to the proof of foreign judgments, which are provable the same way, except as to modes peculiar to foreign judgments, as real, &c., the court in 2 Cranch, 187, say “ these” exemplifications, &c., “ are the usual, and appear to be the most proper, if not the only, modes of verifying foreign judgments; if they be all beyond the reach of the party, other testimony inferior in its nature might be received. But it does not appear that there was any insuperable impediment to the use of either of these modes, and the court cannot presume such impediment to have existed.”
    So writ or process lost or destroyed may be supplied by parol evidence of its contents where no better evidence can be obtained. Fowler v. More, 4 Pike’s (Ark.) R. 570.
    If a record be lost or consumed by fire, it may be proved by collateral evidence. Com. Dig. Ev. A. 3; I Salk. 284. So, of the docket of the court of common pleas, if it be lost by sickness or casualty, secondary proof may be offered of its contents. Pruden v. Alden, 23 Pick. 184, 187; Whitney v. Sprague, lb. 198.
    In the case at bar, we had the original executions reciting the judgments, the deposition of the justice and the constable reciting the fact, amount, and date of judgment; but if this evidence was not sufficient to prove the judgment, we were entitled to show the loss of the judgment entries in order to show that we could not procure copies, and, thus, to let'in the next best evidence, either the oral proof of the judgments, or the executions' reciting them. But we were deprived of this proof by the court.
    3. The court erred in ruling out the attachments, executions, proof of sale, and also of judgment, and other proceedings connected with said attachment case, and, also, the depositions; the ground of the ruling was that no judgments were shown. As to this we submit,
    1st. That no judgment was necessary to be shown by the plaintiff, claiming, as he did, as a purchaser at a public judicial sale, under process regular upon its face, and without notice of irregularity; that the constable himself need not have averred or shown a judgment in justification of the levy. See 5 Wend. 16; 16 lb. 514; 6 Ala. R. 634; and that the officer suing a stranger need not show judgment, 6 Johns. 195.
    2d. As against the defendant in execution, it is said, judgment need not be shown. How is the defendant here who only takes the title of the defendant, and takes it subsequently to our sale, in any better condition? And if the officer can justify, why cannot he pass title to an innocent purchaser ?
    3d. In this case, the negro was attached before the sale; by the attachment, as this court has decided in reference to its own attachment laws, the title was divested, and the sale was only necessary to ascertain the value. 4 S. & M. 479. The Alabama statute is not different; see Clay’s Dig. 54, § 1; also Baldwin v. Leftwick, 12 Ala. 838. We submit if this fact does not except this case from the general principle; for the title may not be divested by an execution without judgment; here it was divested.
    4th. We have shown by sufficient evidence, judgment. The Court will observe these things: that courts of justices of the peace in Alabama, are not courts of record; (see Clay’s Dig. admitted to be read by agreement;) that all the entry required to be made, of judgment by the statute (lb. 359, § 5,) is a bare ■memorandum', not more full than the recital in the execution; that the judgment is called in question only collaterally; that these dockets are but loosely kept by men not acquainted, for the most part, with legal forms; that this judgment was rendered several years ago; and that the trial was in another state. Now, the rule of law is, that when the judgment is collaterally used, to support a sale, a very imperfect transcript of the judgment is sufficient. Lanning's Lessee v. Dolph, 4 Wash. C. C. R. 625. It is, at least, questionable, if a perfect transcript were required, if it be not furnished by the evidence.
    
      A. W. Dabney, for defendants in error.
    1. The plaintiff claiming title under a purchase at constable’s sale in Alabama, should have shown by competent testimony that there were judgments against Root, and also execution's on the judgments, under which he purchased. Starke v. 'Gildart, 4 How. R. 267.
    2. The affidavit of Parker, the plaintiff, to show that the justice’s docket, in which was the judgment entry, had been lost by him, to lay the foundation for secondary evidence, was not sufficient. He should have first shown that such a docket once existed, by other proof than his own oath. 2 Phil. Ev. C. & H. notes, 138; 3 lb. 1217.
    3. Yerbal testimony of a justice as to his proceedings, not admissible. 3 Phil.'Ev., C. & H. Notes, 1113. Entries injustice’s docket can only be proved by sworn copies. Ib. 1111, 1112. Without the judgment, therefore, duly authenticated, the execution, &e. was inadmissible.
    
      
      J. G. Baldwin, for plaintiff in error,
    In addition to the former authorities, cited to the point, that in sheriffs’ sales of personal estate, the vendee is only bound to show execution, and need not produce judgment, Burkely v. Screven, 1 N. & M. 408; Vance v. Reardon, 2 lb. 299 ; Morrison v. Dent, 1' Mis. R. 246; Den v. Despreux, 7 Halst. 182; Den v. Farlee, lb. 326 ; Richardson v. Broughton, 2 N. & M. 417.
    And the vendee is protected even when it is showed that the execution issued on a judgment void for want of notice. Darby v. Russell, 5 Haywood, 139.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.,

Scott, as sheriff of Kemper county, had in his hands an execution against John Root, which he levied on a negro then in jail as a runaway. He required a bond of indemnity which was given by the defendants in error, and he thereupon sold. Parker, for whose use this suit is brought, claims title to the negro, and sues upon the bond to recover damages.

Parker’s title was acquired in Alabama by purchase, at a constable’s sale of the same negro, under two judgments rendered in attachment suits by a justice of the .peace, against Root. It is admitted that if Parker’s title was a good one, the negro was not liable to the execution under which he was sold in Kemper county, but it is insisted that Parker did not produce competent evidence of title. With.a view to lay a foundation for the introduction of secondary evidence, Parker’s affidavit was introduced, in which he proved the loss of the justice’s docket, which had been delivered to him to be used as evidence, but this was excluded. The rule of law is, that the best evidence the nature of the case admits of must be produced; that is, that no evidence shall be received which presupposes the existence of evidence of a higher nature. Parker could riot therefore make parol proof of the contents of the docket. But when the higher evidence has been lost, then secondary evidence, that is proof of its contents, may be received, for that is then the best evidence which can be produced. It is a well established principle, that a party to the record may establish the loss of a written instrument, by his own affidavit, though he cannot testify as to its contents. Such an affidavit is addressed to the court, who is to determine the competency of the secondary evidence. Tayloe v. Riggs, 1 Peters, 591; Adams v. Leland, 7 Pick. 62; 2 Phil. Ev. 138. It was competent, therefore, to prove the loss of the docket, but the question still rises, was the parol proof competent? The docket itself would have been incompetent without the proof or authentication. Much diversity of opinion has existed, not only as to the mode of proving the proceedings had before a justice in another state, but also as to the effect of such judgments when established. See Phil. Ev. 896, 1127, and notes 636, 771. These questions we need not discuss. If the loss of the docket has placed it out of the power of the party to furnish record evidence, then he was entitled to supply its place by parol evidence. 3 Phil. Ev. 1066, 1068. The laws of Alabama require the justices to enter in books, to be kept for the purpose, the names of the plaintiff and defendant, the debt and costs adjudged, the time when the warrant issued, when returnable, and when judgment was given. Aikin’s Dig. 292. These laws are made evidence by agreement of counsel. The party swears that the docket of the justice, in which the judgments were entered in the attachment suits, was handed to him by the justice to be used as evidence in this case, and that he, deponent, had lost it. He states the loss positively. Now we must suppose this docket spoken of was the record directed to be kept by the laws of Alabama. It was the book in which the judgment was entered, and we see no law of that state which justices the presumption that there was any other record. And although that docket may have lacked the requisite authentication to make it admissible itself, yet if it was the original and only record from which a transcript could be taken, of course its loss deprives the party of the means of presenting a proper exemplification. If he cannot introduce secondary evidence his remedy is gone. Under these circumstances, parol evidence of its contents is admissible. And such evidence is the less objectionable, since the supreme court of Alabama seems to have decided that the book kept by a justice is not a record. Gayle v. Turner, Minor, Rep. 204. It was, therefore, but the common case of the loss of a written instrument, if this decision be correct. The depositions offered should, therefore, have been received, and for this error the judgment must be reversed, and the cause remanded.  