#### FLEETWOOD WALTERS, ADM’R. &c. vs. WILLIAM WALTERS.

On the trial of an issue, it was incumbent on the defendant to shew that he had given to his father a valuable consideration for a slave, and he produced a bill of sale, the execution of which he proved by a subscribing witness, and which expressed a consideration of $300. The plaintiff’s counsel asked the witness if he saw any money paid, and the witness replied that he did not, but that he saw a bond delivered by the defendant to his father, and being asked by the same counsel what bond, he replied “ the defendant’s bond to maintain his father and mother during their lives.” Held, that this examination on the part of the plaintiff did not dispense with the necessity of the defendaht’s producing the bond, or shewing that he had used the proper means to procure its production and then proving its contents¡

Appeal from the Superior Court of Law of Robeson county, at the Spring Term, 1844, his Honor Judge Nash presiding.

The evidence given at the trial of this cause and the various positions of the parties, are set forth at much length in *436the ease sent up ; but, as the decision of this court turns on a single point, it is only material to state so much of the case as may be useful in understanding that point.

The acqon was replevin for a slave, named Hagar, which the plaintiff claimed, as the administrator mth the will annexed of William Walters, the elder. The defendant is a son of the deceased, and claimed the slave as having been sold and conveyed to him by his father. The sale and conveyance were impeached upon the grounds, that the father from age and mental infirmity had not capacity to contract, and that in fact the conveyance, if any, was obtained from him, without a valuable consideration, and that the negro had never been delivered to the defendant. For the purpose of shewing the sale to him, the defendant offered in evidence a written bill of sale (not under seal) from the father to himself for the slave in question, (among others) expressed to be for the consideration of $300 in hand paid, and the defendant offered to prove how the payment of the said consideration had been made. Thereupon, the subscribing witnesses to the bill of sale were examined as to its execution by the deceased,-and deposed that he did execute it by signing and acknowledging it and requested them to attest it, and that he had, at the'time, capacity to contract. The counsel for the plaintiff then asked one of the witnesses, if he saw any money paid by the defendant to his father ; and the witness replied, that he did not, but that he saw a bond delivered to him ; and being asked, “ what bond”? he said, “ the defendant’s bond to maintain his father and his mother during their' lives.” The plaintiff’s Counsel objected, that the contents of that instrument could not be proved by the witness, but that it must be produced in evidence, or its non-production accounted for, before the parol evidence was admissible. But, in reply, the counsel for the defendant insisted, that the parol evidence was admissible,, because it had been brought out by the plaintiff’s own cross-examination. The court then allowed the witness to state, that he heard the bond read and knew its contents, and that they were as before stated. There was evidence given on both sides *437as to the capacity of the father; and upon it the jury found a verdict for the defendant, and, judgment being rendered' thereon, the plaintiff appealed’.

Strange for the plaintiff.

No counsel in this court for the defendant.

Ruffin, C. J.

It is obvious, that it was material to the defendant to establish, upon the trial, a bargain for the slave for a valuable consideration paid or secured, as there was no conveyance by deed and no delivery. For although a consideration was acknowledged in the bill of’ sale, yet that was hot conclusive, as the instrument was itself but a parol contract, and it was open to the plaintiff to show that the consideration had not been given. It was moreover, very material to the defendant’s case in another point of view. ’ A principal point in contest was the capacity of the father t® contract, and it would be no lignt evidence on that point, that the bargain he made v/as for a fair price duly secured, and was discreet under all the circumstances, or that the conveyance was , obtained in the form of a fair sale, without really paying of securing a fair' price, or, ’ indeed, any price. The defendant,' therefore, undertook to go beyond his bill of sale, and prove the valuable consideration and the mode of its payment. The only question is, as to the mode of proving the consideration, which the defendant alleged on the trial he gave, namely, an undertaking by him to maintain his parents during their lives, secured by his obligation made and delivered’ at the time he got the bill of sale. Of coursej the obligation is the only legal' evidence of its contents, until it be proved to be destroyed, or to be in the'plaintiff’s possession, and notice given to him to produce it. It is said, indeed, that the plaintiff dispensed with its production by asking the witness a question, which enabled him to state the contents. But we cannot so regard what’ occurred. The very object of the plaintiff’s en-quiry was to shew, that the defendant’s undertaking to his father was in writing, in order that he might require its prodnc*438tion. He did not draw out the contents as evidence before the jury; for, at the time, he insisted, that the contents could not go before the jury. His questions were preliminary questions, and, in their nature, intended for the information of the eourt, in order to ascertain, whether the agreement, on which the defendant insisted, was in that form, which precluded oral testimony of it. If it were otherwise, the very objection, that an’ agreement is in writing, and therefore ought not to be proved but by the writing, would place the contents before the jury. As it was, the defendant got the benefit of his agreement with his father, without its production, and against the objection of the plaintiff; which, we think, was erroneous. Therefore the judgment must be reversed, and a venire de novo awarded.

Per Curiam,- Judgment reversed and venire de novo.-