Northampton County NcArchives Court.....Governor, V Barkley 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 21, 2009, 2:23 am

Source: Cases Argued And Determined Supreme Court Of Nc
Written: 1825

December Term 1825

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 must 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 
Boon, 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 (21) did not find the desired paper, and Boon said that he did not, but 
that he would look farther at another time. This witness also said, that in a 
conversation some time afterwards 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, Donnell, Judge, 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.

Hall, Judge, — I think the Judge decided rightly in not suffering the plaintiff 
to give evidence of the contents of the paper writing, before be 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.
(22)

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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