delivered the opinion of this court.
Sundry writs of fieri facias against H. H. Gaither, the brother of the appellant, were placed in the hands of the appellee, as sheriff of "Washington county, all returnable to November term 1846. On the 20th of April 1847, under those writs, the sheriff sold certain personal property, as belonging to II. H. Gaither, to the appellant, amounting to the sum of $311. On account of which the purchaser made two' payments of $50 each, and another of $100. At sundry times he promised to pay the balance, but failing to do so, this suit was instituted to recover the same.
In the first bill of exceptions the different writs of fieri facias are set out at length. It is then admitted they were issued on subsisting judgments, and that no returns had been made upon them by the sheriff. The plaintiff then offered to prove by John D. Ridenour, that in the fall of the year 1846, he was a deputy sheriff under the plaintiff, and as such, called at a room in Hagerstown, occupied as an office by H. H. Gaither and a certain J. A. "Wagoner; that Wagoner alone was in the office at the time. That the witness called for the purpose of levying said executions, and “took a list of the property in the office, and offered to produce and read said list to the jury, as follows:”
“We, the undersigned, being duly summoned and sworn by the sheriff of Washington county to appraise the goods and chattels of Henry H. Gaither, taken by virtue of sundry writs of fieri facias, issued out of Washington county court, viz: one at the suit of the Hagerstown Bank against H. H. Gaither; one at the suit of Thomas Ringer against H. H. Gaither, W. H. Fitzhugh and J. O. Wharton; one at the suit of Sarah A. Lyester against H. H. Gaither and M. S. Van *154Lear; and one at the suit of Stewart Gaither’s executors against H. H. Gaither, and for fees, do appraise the same in current money as follows, to wit.” Then follows a list of property, and concludes with, “Given under our hands and seals, this 20th day of April 1847,” which is signed and sealed by four appraisers.
After this the bill of exceptions goes on to stater “And that he said in the office, that he levied on the property to-satisfy executions in the sheriff’s hands; that he is not sure, but thinks, he mentioned the particular executions, and that he left the property in the office until said Wagoner left it, and when he left it, on the first of April 1847, the witness took the key, locked up the office, with the goods in it, and retained the key until the sale; and that said Henry H. Gaither had been previously informed of said executions and of the intended levy.” In stating the objection to this testimony it is said: “To which evidence so offered for proving a levy the. defendant, by his counsel, objected. But the court overruled the objection, and admitted the testimony as competent to prove a levy, being of opinion, that even if it were necessary in this case to prove a levy, it might be proved by parol.” The defendant excepted to the admission of the proof and to the opinion of the court.
The principle is well settled, that a fi.fa. cannot he levied after the return day. If a levy is made before, the property may be sold after, the return day is passed.
If, when making a levy, a list of the property is taken, where no return is made upon the writ, and in a subsequent proceeding the sheriff, being a party, offers proof of the levy having been made, such list must be produced or the loss of it established, so as to let in secondary proof in relation to it. See Farmers and Drovers Bank, vs. Fordyce, 1 Penn. S. Rep., 457. In Byer vs. Etnyre and Besore, 2 Gill, 150, there was no evidence of any written list of the property levied upon having been made.
The witness in this case stated, that when he made the levy he took a list of the property. With such evidence before the jury, the court erred in saying, if it were necessary *155to prove a levy, it might be proved by parol. The testimony in reference to the list of the properly is very unsatisfactory*. The paper, on its face, purports to have been made on the 20th of Jlpril 1847, when it was signed by the appraisers. And yet the witness produced and offered to read it to the jury, as the list prepared by him at the time of the levy, in the preceding fall. Whether he was correct in this or not, could only be decided by the jury. If they believed he was mistaken, and the paper offered was not the original one prepared by him, under the instruction of the court that the levy could be proved by parol, they, of course, would have concluded that the production of the original list, or any proof of its contents, after showing its loss, was wholly unnecessary, and regarding such a paper as unimportant, they might rely exclusively upon the parol proof of the witness to establish the levy.
If a list was made at the time of the levy, as the sheriff undertook to prove the levy, he could not do that in this case without producing the list. And the court had no right to assume that such a list was not made, in opposition to the statement of the witness that it was. 'Which assumption is necessarily included in their saying the levy could be proved by parol.
Their opinion would be equally erroneous, upon the hypothesis, that the list made at the time of the levy, is the same which was offered in evidence. Because if a levy can be proved by parol, it is when no list of the property is made, or it has been lost, or other property not included in the list has also been levied upon, which was not alleged on the occasion alluded to by the witness, and to which this exception has reference.
In the second bill of exceptions it appears the plaintiff offered to prove that H. H. Gaither had said he had given the sheriff the list of property exhibited by the witness, in order that it might not be necessary for the sheriff to go to his dwelling-house to’ make a levy. Which testimony was objected to, because it was not proper to give in evidence the *156declarations of a person who might be a witness. And also' because the evidence was not sufficient to prove a levy upon the property mentioned in said list.
If these declarations were admissible, they could only be so because they were made prior to the sale, being then adverse to his interest, and not in conflict with the rights of others. It might be very different after a sale. Considering his title to the property gone by the sale, the restraining influence of interest would no longer exist. And rights in other parties might intervene, which would be materially affected, by admitting the subsequent declarations of such a party.
The admissions of a bankrupt, made before the act of bankruptcy, may'be received to prove the debt of the petitioning creditor, but not his declarations made after, because of the intervening rights of creditors and the danger of fraud. 1 Greenlf. on Ev., sec. 181, and the authorities referred to in note 3.
The proof offered does not state when the conversation alluded to took place between the witness and Mr. Gaither, whether before or after the sale. Such testimony, when admissible at all, must be so as one of the exceptions to the general rule of evidence, it was therefore necessary for the party offering it to show, that it possessed all the requisites to bring it within the exception. Medley vs. Williams, 7 G. & J., 67. And having failed to prove that the .declarations were made prior to the sale, they ought to have been rejected.
The third exception also presents a question as to the admissibility of evidence.
The plaintiff offered to prove by John D. Ridenour, that"' the property mentioned in the lists, set out in the first and second bills of exceptions, was advertised for sale in a newspaper published in Hagerstown. One of said advertisements was produced and appears in the record. All of this evidence was objected to on the part of the defendant, hut the court did not sustain the objection. In this there was no error, if ¡any portion of the testimony was admissible. Budd vs. *157Brooke, 3 Gill, 220. Without referring to the proof offered in the second bill of exceptions, that which is stated in the first to have been admitted, tended to prove that a levy had been made and a list of the property taken. Whether this was done before the return day of the writ was a question for the jury; the court could not assume that it was or was not. Under such circumstances, the admission of proof that the property alleged to have been levied upon had been advertised for sale, was not erroneous in this case. When a sheriff is about to sell property under an execution, it is his duty to give public notice of the intended sale.
It will avail nothing to say, the subsequent proceedings in the cause show, that the property purchased by the defendant at the sale, is not the same which is mentioned in the first bill of exceptions. We are confined on this question to the third and the two prior exceptions. But if we could look to the subsequent proceedings, we should be strongly inclined to believe, that the books, if not other articles specified in the list of sales, are the same as those mentioned in the first exception.
The fourth exception shows, '¡hat on the 20th of April 1847, a sale took place, at which 13. Gaither, the defendant, attended and purchased a variety of articles, amounting in the whole to the sum of $311, being the same property included and charged in the account filed in the case. That he declared he purchased them for the use of his brother, the said H. H. Gaither. And the .witness Ridenour states, that “the articles were at the time of the sale handed over to the defendant and placed under his control, but were not by him removed from the premises. That he had furnished several lists of the sale to the defendant, who had paid from time to time $200 on it, as credited; that he had often promised to pay the whole and never objected to any want of delivery.” The plaintiff also proved by Lewis Martin, that he, the witness, “called several times on the defendant for payment of the account, and he promised to pay it, the last time being August 29th, 1850.”
The defendant then offered to prove by D. H. Smith, that *158H. H. Gaither was tenant of a dwelling-house under George A. Bender. That about the 1st of April 1847, the witness/ acting under a distress warrant from said Bender, levied on all the property in said dwelling, and some other property on the premises. That he made a regular inventory of the articles, and also had an appraisement thereof, “all in writing; that to the best of his recollection and belief, he had retained in his own hands, and that he had made diligent but unsuccessful search for them in the last few days, and believed they 'were lost. That to the best of his recollection and belief, he had given the appraisement to a certain Charles F. Gelwicks, who acted as clerk for him at the sale, and that witness had never seen them since; that Charles F. Gelwicks is still living and now in Hagerstown, but is too sick, since yesterday, to come into court; that he had this morning inquired of said Gelwicks for said papers, who said he did not have them, but was under the impression he had handed them over to the defendant.” After which the defendant offered to prove by said Smith, that the articles so levied on by him, he set up at public sale, some of which were sold to the defendant and some to strangers; “but the defendant, who is the brother of H. H. Gaither, made some compromise with the said Bender, or paid off the rent due and stopped the sale.” The defendant also offered to prove by Smith, that the articles sold by him to the defendant, were the same which the plaintiff sold to him on the 20th of April, and are included in the account of sales filed in this cause by the plaintiff.,
The proof thus offered on the part of the defendant was objected to, and the court did not permit the evidence to go to the jury, in which we think they were right.
According to the testimony proposed to be given by the defendant, when the distress was levied, an inventory and appraisement of the property were made in writing. They, of course, were better evidence to prove what property was taken than parol testimony. And having already said in a previous part of this opinion, that where a levy is made under a fi.fa-, if a list of the property is taken in writing,, and proof *159of such levy becomes necessary, parol evidence cannot be received, unless the loss of the list is first established, we do not see why the same rale should not be held applicable to proceedings under a distress.
If it be necessary to prove the loss of the inventory and appraisement, it is certain that the testimony contained in this exception is not sufficient for that purpose. Smith’s statement is rather confused and cloudy, but we suppose he is to be understood as intending ultimately to say, that after a diligent but unsuccessful search for those papers, according to the best of his recollection and belief, he had given them to Gel wicks.
Admitting the declarations of Gel wicks to be proper testimony, they do not prove the loss. On the contrary his impression is, that he handed the papers over to the defendant.
In Clement’s Lessee vs. Ruckle, 9 Gill, 326, a witness speaking of a letter he had received, said it was “either lost or delivered to one of the counsel in the case, and that witness made diligent search for the same but could not find it.” This was not deemed sufficient to admit parol proof of the contents of the letter. The court, however, were right in holding the evidence not sufficient to let in secondary proof, because the declarations of Gel wicks were not admissible. They could only have been received as coming within an exception to the general rules of evidence, on the ground of necessity; and the circumstances relied upon, did not create such a necessity for the admission of those declarations, as has been recognised by the elementary writers or in adjudged cases.
In some of the States, if there is a witness to a written instrument, the execution of which is to be proved, such witness must be produced, if living, unless he is disqualified from interest or some other cause, is a non-resident, or has been absent from the State for a considerable time. The act of 1825, ch. 120, relates to this subject in Maryland. Edelen vs. Gough, 5 Gill, 106. In Spring vs. S. C. Insurance Co., 8 Wheat., 268 and 282, proof that a subscribing witness to a *160deed had gone to sea, and had not been heard from for four years, although diligent inquiry had been made for him, was deemed sufficient to Jet in secondary evidence of his handwriting. But a casual absence out of the State would not have a similar effect, as appears by a decision' reported in Littell's Select Cases, 240.
The sickness of Gelwicks commenced the day previous to the trial, or, at least, the day before Smith was examined in regard to it. And as this fourth bill of exceptions, which contains his testimony, as well as the first, second and third, all bfear date the same day, it is a fair inference that the trial was not going on when Gelwicks was taken sick. When the casé was called,-it was the duty of the defendant to kpow whether his witnesses w'ere in attendance. And as it seems Gelwicks must have been absent, that afforded a good ground for a continuance of the case, if the parly had asked for it; but going to trial,- instead of doing so, such absence, under the circumstances, did not render the declarations admissible. Such testimony being without the sanction of an oath, and affording no opportunity to the opposite party for' cross-examination, should always be received with caution, and only when there is an appropriate necessity, which, we think, did not exist in this instance. See 4 Vol. of Cowen and Hill's Ed. of Philips on Ev., 1223, note 867.
What might have been the effect of the siclrness of the witness, if it had commenced after the trial began, we are not called on to decide.
The1 fifth exception arises upon an offer on the part of the defendant, to prove by his own oath the loss of the appraisement. If it was traced to his possession, it was by the declarations of Gelwicks only. Having decided that these could not be received in evidence, we must’ affirm the decision of the court in rejecting the proof here offered.
From the sixth and last exception it appears, that the defendant offered to prove by H. H. Gaither, that the property charged in the account filed by the plaintiff, never had been in the use and possession of the defendant, but, from the time *161of the sale, had continued to be in the use' and possession of the witness. This testimony being objected td, was rejected by the court, and at the same time they instructed the jury, if they should “find that after the sale the sheriff placed this property under the control of the defendant, as the property of the defendant, and that this was accepted by the "defendant as a delivery of the property, and that the defendant after-wards permitted the property to remain in the possession of Mr. Henry Gaither, then it is not necessary for the plaintiff to show, that the goods sold were formally delivered by the sheriff to the defendant.”
In Crawford vs. Berry, 6 G. & J., 70, the defendant asked the court to instruct the jury, that the plaintiff was not entitled to recover for certain reasons set forth in the prayer. The' court refused to give the instruction', and if they had stopped there, the appellate tribunal would have found no fault with the decision.
The declaration contained three counts. The first a special count on the assignment of a single bill, and the other two for oxen sold and delivered.
After refusing the instruction already spoken of, the court instructed the jury, “that if they should find from the evidence that at the time of the rendition of the judgment, and the return of the ca. sa., and entering it not called, Magruder was insolvent and incapable of paying his debts, and continued so ever since, the appellee was entitled to a verdict for such sum as they should find due from the sale of the oxen.” The Court of Appeals held this to be erroneous, because it assumed “the fact of the sale of the oxen, and that the assignment of the single bill was oil account of the prior debt so incurred, which were facts to be found by the jury.”
In Brooks vs. Elgin, 6 Gill, 259, a prayer was granted, which asked the court to instruct the jury, that if they believed “that after the refusal of the R. R. Company to pay or accept the draft of J. P. Shannon, notice within a reasonable time, of which the jury are the judges, was given to Nicholas, Perdue & Co., of such non-payment or non-acceptance, then *162the defendant is not entitled to be credited with the amount:1 of the said draft.” The granting of this prayer was the fourndation of the defendant’s second bill of exceptions. In re5versing this decision the Court of Appeals say: “We think that the court below erred in giving the instruction which is to be found in the second exception. In that instruction it is-assumed, that the railroad company refused to pay or accept the order. The court also said the jury were the judges, whether notice of such a refusal was given within a reasonable time to the defendant below.”
If in Crawford vs. Berry, the sale of the oxen was erroneously assumed by the instruction there given; and in- Brooks vs. Elgin, the refusal of the R. R. Company to pay or accept the draft, was also improperly assumed in the prayer which the court granted, surely the sale- in- the present case was quite as fully and erroneously assumed, by telling the jury, if they should “find that after the sale,” the delivery was made under the circumstances stated in the instruction, it was not necessary to show that the goods were formally delivered. And no matter how clear and satisfactory the proof was,.to establish the sale, the court could not assume that it took place, as it would be an invasion of the rights of the jury.
The court were likewise wrong- in refusing to- admit the defendant’s testimony. The plaintiff had offered evidence to show, that at the time of the sale the goods were “handed over to the defendant and placed under his control, but were not by him removed from the premises.” Other evidence was also given by the plaintiff, intended to have an influence on the question of delivery.- And as the testimony of the defendant was designed to prove that the property “had never been in the use and possession of the defendant, but the same has been, ever since said sale, in the use and possession of the said H. H. Gaither,” it ought to have been admitted.
We concur with the court below on the third, fourth and fifth exceptions, but differ from them in- regard to the first, second and sixth.
Judgment reversed and procedendo awarded.