Governor ex rel. Allen v. Barkley, 11 N.C. 20, 4 Hawks 20 (1825)

Dec. 1825 · Supreme Court of North Carolina

11 N.C. 20, 4 Hawks 20

The Governor, to the use of Allen, v. Barkley and others.

From Northampton.

Before parol evidence can be given of the contents of a paper alleged to be lost, such loss roust be satisfactorily shown. The declarations of the administrator to the person into whose possession the paper was last traced, that he could not find the paper among those of his intestate, is not sufficient proof of the loss, where the administrator is living, and there is no obstacle to procuring his testimony.

This was an action against the defendants as securities of a constable on his official bond. In making out the plaintiff’s case, it became necessary for him to give in evidence a paper, or the contents thereof, which was traced to the possession of one Wheeler, who was since dead-To prove the loss of the paper, and to entitle the plaintiff to give parol evidence of its contents, he called a witness, Stevenson, who said that, by plaintiff’s direction, he had called on Soon, who was the administrator of Wheeler, and requested him to look over Wheeler’s papers for the one wanted; that Boon at the time was unwell, and produced a parcel of papers which he said were Wheeler’s; that he, Stevenson, looked over some of these papers, and Boon looked over some of them; that the witness did not find the desired paper, and Boon said that he did not, but 1 1 . . that he would look farther at another time. 1 his witness also said, that in a conversation some time afterwads with Boon, he was informed by him that he had not found the desired paper.

It was admitted on the trial that Boon was alive, resided within a few miles of the court-house, and had not been summoned.

The Court, Donsteiu, Judge, holding that .Boonshould have been produced, and that his declarations were inadmissible, would not permit parol evidence to he given of the contents of the paper. The plaintiff’s counsel then directed a nonsuit to be entered, and moved for a new trial on the ground of the improper rejection of testimo,ny. INcw trial refused, judgment and appeal.

Ham,, Judge. —

I think the Judge decided rightly in not suffering the plaintiff to give evidence of the contents of the paper writing, beforo he had better accounted for the loss of it, when he had it amply in his power to do so, by calling Boon, the administrator of Wheeler, into whose possession they had traced it. Boon’s declarations' ought not to have been received, when there was no obstacle shown to procuring his testimony as a witness; of course the rule for obtaining a new trial should be discharged.

The other Judges concurring,

Judgment affirmed.