In an action of trover for a negro slave, the plaintiff offered in evidence a certified copy from the registry, of the bill of sale for the slave, he first making an affidavit that the bill of sale was not in his possession or power; that he had delivered it to the register to be registered, and on application for it afterwards was told by the register that it was lost. There was a subscribing witness to the bill of sale, who resided in the State, and he was not produced as a witness: Held, that the copy cannot be received in evidence: (1) on account of the insufficiency of the proof as to the loss of the original; (2) because the act of 1792, ch. 6, requires that in all trials where the title of a slave is evidenced by a written transfer, the execution of such writing shall be proved by the subscribing witness, if alive and within the State; and there cannot be less reason for requiring the subscribing witness where a copy is offered in evidence than where the original is offered.
From Duplin.
BY THE COURT.
Each of the objections made to the admission of the copy in evidence is good. It appears by the affidavit of the plaintiff that the original was lost after he delivered it to the register; and if it be competent for the (425) plaintiff to prove that he delivered it to the register, it surely is not also competent for him to prove that the register lost it. The fact of loss, according to the plaintiff's own showing, could be proved by the register, and that fact must be proved before the copy shall be read.
As to the second objection, it is declared by the act of 1792, ch. 6, "that in all trials at law, where a written transfer or conveyance of a slave or slaves shall be introduced to support the title of either party, the due and fair execution of such writing shall be proved by a witness subscribing and attesting the execution of such writing; but if such witness shall be dead, or removed out of the State, then the probate and registration of such writing may be given in evidence." There cannot be less reason for requiring the subscribing witness where a copy is offered in evidence than where the original is offered. Judgment that the verdict be set aside and a nonsuit entered.
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