The plaintiff claimed title to the negro under a (174) purchase at a constable's sale, and showed a pluries execution and sale and a purchase by himself. But not being able to produce the judgment and former executions, in order to entitle himself to offer secondary evidence thereof he called as a witness the constable, who deposed that he had returned to one Williams, the justice who granted the judgment, the paper on which the warrant and judgment were written, and also the prior executions; that he, with Williams, had made two several searches among the papers of Williams, kept in a trunk containing all the papers on which he had acted officially, and the judgment and executions were not to be found; that Williams afterwards, at the request of the witness, searched again for them, and, as he stated, without success; that Williams, the justice, and one McNeill, the plaintiff in the judgment, had removed out of the State, and the latter was reported to be *Page 108 dead. Upon this testimony the judge thought that the absence of the papers sufficiently accounted for and permitted their contents to be proved.
The plaintiff further proved that the negro, at the sale, was delivered to him by the constable, and was afterwards taken away by the defendants.
The constable then stated, in answer to a question put to him by defendant's counsel, that he had made to plaintiff a bill of sale for the negro, on which the plaintiff's counsel, protesting that on the facts of the case no bill of sale was necessary to pass the title, and therefore he was not bound to produce one, yet produced that spoken of by the witness, and proved its execution. To this bill of sale it was objected that the plaintiff resided in Chatham, and the registration was in Randolph. To which it was answered, that as the defendant had been in possession of the negro, the registration in the county where he resided and where the sale was made was sufficient.
The Judge held, first, that no bill of sale was necessary (175) to be shown, and, secondly, if necessary, the registration was in the proper county, and the bill of sale was read.
A verdict being found for the plaintiff, a new trial refused, and judgment entered on the verdict, the defendant appealed. The rule for a new trial seems to have been obtained on the ground that evidence ought not to have been received of the contents of the judgment and executions, unless their absence had been better accounted for. It appeared that McNeill, the real plaintiff in the judgment, and the justice of the peace who rendered the judgment and issued the executions, had both removed from the State, and that ordinary diligence had been used in searching for the papers. I therefore think with the judge below that it was proper to receive evidence of their contents.
It appears that the deed from the constable who sold the negro in dispute to the plaintiff was objected to as evidence by defendant's counsel, because it had not been registered in the county where the plaintiff lived, but only in the county where the sale took place. This objection is sustained by Palmer v. Popleston, 8 N.C. 307. There, as in this case, a bill of sale made by the sheriff was registered in the county where the sale was made, but not in the county where the vendee lived. It was held there, and we must so decide here, that as the deed *Page 109 was not registered in the county where the vendee lived, as required by the act of 1792 (Rev., ch. 363), there must be a new trial, and the rule for that purpose be made absolute.
PER CURIAM. Judgment reversed and new trial.
Cited: Jenkins v. Cockerham, 23 N.C. 309; Simpson v. Sutton, 61 N.C. 112.
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