delivered the opinion of this court.

This was an action of replevin to recover the possession of several negroes. The only questions which we are called upon to determine arise under the plea of property in a stranger.

*392The defendant, “in order to introduce secondary evidence to prove that the said Walter Mills, (the plaintiff’s intestate,) was an insolvent debtor and had taken the benefit of the insolvent laws of this State,” proposed to prove by Mr. Gibson, who sometimes acted as the deputy of the clerk of Calvert county court, that he had made search, without'success, for the original papers in insolvency of Walter Mills; and also offered in evidence certain docket entries of the application of Mills, and of (he issue of a ca. sa. against him to enforce the payment of a judgment obtained against him by a certain William Dallam.

To the admissibility of this evidence the plaintiff’s counsel objected; but the court admitted the evidence of the witness, Gibson, with the other evidence, but was of opinion, and so decided, that the whole thereof was insufficient as a foundation to let in secondary evidence as proposed. To this ruling the defendant excepted.

The proof of Mr. Sollers, the clerk of the county court, was, “that the only bundle of insolvent papers which he has ever seen goes back no farther than 1846, but that he does not knoiv whether there are any others or not. When a final discharge is granted, the papers are put in the judgment bundle of that term.” The witness, Gibson, proved, that “he had never made any search for these papers and records until during the present trial, when he was requested by defendant’s counsel to do so, and that he therefore examined the papers and recotds in the clerk’s office and a large and confused mass of records and papers, belonging to the clerk’s office, in a room up stairs in the court house, to which they had been removed for want of room and cases in the clerk’s office, and which were not arranged in cases, but lying on the floor in piles or in boxes; that the papers are generally put up in bundles and marked- on the envelopes ‘appearances,’ ‘trials,’ &c., of the terms to which they belonged, and that he examined these envelopes but did not examine the endorsements of any of the papers in the envelopes; and when he found a bundle marked ‘trials,’ for example, he laid it aside and did, not examine its contents.”

*393It is very clear to our mind, that the court below properly decided such evidence insufficient to permit the introduction of secondary testimony. Mr. Sobers had proved, that when a final discharge was granted, the papers were put in the judgment bundle of th.e term. Now it is clear, that the deputy, Mr. Gibson, in his search, did not make examination of the contents of these bundles, and therefore, from all we can see or the court below, the papers desired might have been in the bundles pointed out by Mr. Sobers, but which were not examined by Mr. Gibson. Without such examination, secondary evidence cannot be properly admitted.

But apart from this, the testimony under the offei• of the defendant was irrelevant to the matter in issue. The case of Sothoron vs. Weems, 3 Gill & Johns., 435, is conclusive on the point. In that case the offer was the same as in this case. There the defendant, for the purpose of showing that George Weems, one of the plaintiffs, had. been finally discharged, under the insolvent laws of the State, offered to read in evidence a transcript of the record and proceedings in his case, before the commissioners of insolvent debtors,” fyc. This was objected to by the counsel for the plaintiff, and the court sustained the objection. In commenting on this action of the county court, the Court of Appeals say: “The withholding from the jury the evidence set forth in the third bill of exceptions, gives to the appellant no ground for complaint; it was offered for a particular purpose, and if inadmissible therefor it was properly rejected, although it might be admissible for other purposes. The object of the testimony was stated to be, ‘for the purpose of proving that he, (George Weems,) had been finally discharged under the insolvent laws of the State.’ This fact being immaterial to the issue in the cause, the proof for its establishment could not be otherwise than incompetent. Had it been offered, not only for the purpose stated, but to prove that all the property, rights and credits of George Weems had passed out of him and vested in his trustee, it might perhaps have presented a, different question for consideration.” For these reasons the judgment ought to be affirmed.

delivered the following separate opinion concurring in the affirmance of the judgment.

The point decided below and to which the exception was taken, is, that tire preliminary proof given was not sufficient to let in secondary evidence “to prove that the said Walter Mills was an insolvent debtor, and had taken the benefit of the insolvent laws of this State.”

In the opinion delivered by the chief justice, the first ground taken for affirming the decision of the circuit court relates to the search for the insolvent papers of Mills. Considering the views expressed in the opinion on this point quite sufficient to sustain the decision below, I do not deem it necessary to assign a further reason for the affirmance.

Judgment affirmed.