11 N.C. 20 | N.C. | 1825
It was admitted on the trial that Boon was alive, resided within a few miles of the courthouse, and had not been summoned.
The Court, Donnell, J., holding that Boon should have been produced, and that his declarations were inadmissible, would not permit parol evidence to be 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 testimony. New trial refused, judgment and appeal. I think the judge decided rightly in not suffering the plaintiff to give evidence of the contents of the paper-writing before 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 a new trial should be discharged.
The other judges concurring,
Affirmed.
Cited: Avery v. Stewart,
(22)
