¶1The justice of the peace, who was the legal custodian, proved that the executions were not in his possession, but that they were given in evidence on the trial of Hopkins v. Johnson, at a former term of the Barbour circuit- court. Witness had not since seen the executions. These papers having gone before the jury, it was the duty of that body to return them, with their verdict, to the clerk of the court; and it was the duty of the last named officer to keep them, until called for by some person having the right to their custody. In the absence of any circumstances of unfairness, and in the absence of all proof to the contrary, we must presume the papers remained where they were last shown to be; and we think the proof of search for them was amply sufficient to raise the presumption of their loss. Secondary evidence of the executions of Blakey v. Hopkins, and Efurd v. Hopkins, ought to have been admitted. See authorities ón brief of appellant.
¶2The testimony of the loss of the executions of Clark v. Hopkins, was not so full; and inasmuch as this point is not likely to arise again in the form in which it is now presented, we do not feel called upon to decide it.
¶3The question is properly before us, on bill of exceptions. Palmer v. Bice, 28 Ala. 430; Code, § 2357.
¶4The judgment of the circuit court is reversed, the nonsuit set aside, and the cause remanded.