In this case sundry questions arise upon the bill of exceptions.
It was contended, that the defendant should not prove a certain agreement at the time of the indorsement of the note, that a writ special should be issued, and the debt secured, if possible. But the plaintiff has acknowledged such agreement ; and it does not appear but that it was reduced to writing at the time of the indorsement, and it must now be presumed to be legal and valid. It was therefore admissible evidence.
As to the admission of the copy of the deed ; though by law a sworn copy ought to be produced, and a certified copy from a town clerk is not admissible, yet no objection was made on that account j and it does not appear that there was not proper evidence of the copy. The objection apparent on the record is, that the original ought to have been produced, and not a copy ; but the original was not in the power of the party ; of course, a copy was the best evidence, and was admissible.
The deed was relevant evidence ; for by the above agreement the plaintiff was bound to secure the debt, if possible ; *391he was bound to secure it by taking land, if in bis power. It was pertinent, therefore, to prove the maker of the note was the owner of land so that it could be taken ; and as it appears the deed was recorded while the execution was in force, so that the plaintiff might have levied upon it, this evidence was material.
The court refused to admit, the officer, who served the writ of attachment issued on the indorsed note, to testify to the answers that were given to his enquiries when he was making search after the maker of the note. It was a material point on the trial whether the officer made due search and enquiry upon the attachment. It was his duty to make enquiry at all proper places, and to make search wherever it was probable he might be found. To shew that he had done this, it was necessary that he should state the enquiries and the answers made, and that he had made search accordingly.
Such answers are a part of the transaction ; they are facts, and do not stand on the footing of hearsay evidence. On this ground, I am of opinion that the judgment complained of is erroneous.
In this opinion the other Judges severally concurred.
Judgment reversed.