#### THOMAS THREADGILL vs. JOSEPH WHITE.

Where notice has not been given to produce a bill of sale or other instrument of writing, or where its absence is not satisfactorily accounted for, it is not competent to introduce, as evidence of the execution or contents of the instrument, the oral admissions or declarations of the alleged maker.

A party cannot introduce secondary evidence of the contents of a written instrument, merely upon shewing that the instrument, though in existence, is in another State.

The case of Davidson v. Norment, 5 Ire 565, cited, and approved.

Appeal from the Superior- Court of Law of Anson County, at the Fall Term 1850, his Honor Judge Battle presiding.

This is an action of assumpsit, which was tried on the general issue. The case was, that the defendant as' *592sheriff sold some slaves under writs oí fieri facias against the plaintiff; and the present suit was brought to recover a surplus of the proceeds after satisfying the executions. The defence was, that the plaintiff was not entitled to the surplus; because the slaves were not his, but he had conveyed them by deed to one Colson before the defen. danftook them. In support of the defence evidence was given, that Colson had removed from this State and carried the bill of sale with him ; and then the defendant offered a witness to prove the contents of the deed. But, upon objection by the plaintiff, the Court ruled out the evidence, because the non-production of the instrument was not sufficiently accounted for. The defendant then offered a witness to prove, that the plaintiff, upon his examination as a witness in a suit brought by Colson for the slaves, stated that they belonged to Colson and that he, the plaintiff, had no interest in them. But the Court refused to receive the evidence ; and, after a verdict and judgment for the plaintiff, the defendant appealed.

Dargan and Strange, for the plaintiff.

Mendenhall, for the defendant,

Ruffin, C. J.

It is understood from the case, that the mode, in which the tifie to the slaves was supposed to have passed from the plaintiff to Colson, as proposed to be established by proof of the declarations of the plaintiff, was by the deed of conveyance, which the defendant had previously alleged. That presents the enquiry', whether it be competent to prove the title of Colson derived under the supposed deed — in other words, the contents and operation of that instrument — by oral testimony of the plaintiff’s admissions on those points. The Court is of opinion, that it is not. It is to be observed, that the title to the slavesis the gist of this controversy ; and therefore that the execution, terms, and legal effect of the deed, by which *593it was alleged to have passed, were directly in issue. It is perfectly settled, that the evidence of its execution, if produced, must be by the subscribing witness, and that the want of that evidence cannot be supplied by proof of the party’s admission in, pais. Much less, it would seem, can such an admission supply both the place of the subscribing witness and the production of the instrument.— There have been cases in which, as exceptions to the general rule of evidence, the admission of a fact by a party was considered sufficient to dispense with the regular proof of deeds. They are not numerous, and are stated in 1 Phil. Eo. ch. 7, sec. G ; and they seem to be in cases in which the subject of the deed was collateral to the principal thing in issue. There appears, however, to have been much conflict of opinion on the admissibili'y of such declaration ; and it is admitted, that the Court of Exchequer has held, that an admission of the party is competent evidence of the contents of a deed, so as to dispense with its production and proof of its execution, even when the contents are directly in issue. Slatterie v. Pooley, 6 M. & W. 663. That decision has been followed by other cases, in which the doctrine has been either laid down or assumed, so that, perhaps, it may be said to prevail at this time in that country. It has, however, been stoutly resisted both on the bench and by reputable writers. The Chief Justice of Ireland, in Lawless v. Queale, 8 Irish Law Rep. 385, did not hesitate to follow Lord Tbnterden, in Blosam v. Elsee, Ry. & M. 187, and said, that the doctrine of Slatterie v. Pooley was most dangerous, as it opens the door to fraud and surprise by false testimony of the contents of a deed in the form of the party’s admission, instead of having the deed itself. It seems to be in direct opposition to principle : the evidence being received as primary, and the production of the deed., and notice to produce it, and direct proof of its execution, being dispensed with. For, if it be attempted to. prove, the *594contents by a person, who has read it, the law will not hear him, even after proof of execution, unless the non-production of the deed be accounted for ; and the reason is, that the law will not trust to the frail memory of any man upon that point, when the higher grade of evidence, constituted by the instrument itself, is kept back. There is evidently the same reason for refusing the evidence of a person, who deposes upon his recollection of what the party said of the contents. That is, indeed, going a step farther than in the former instance, since there is not only danger, that the witness may have misunderstood or not fully remembered what the party said, but also that the party may not have remembered and understood the terms and effect of the deed correctly. The incongruity will be the more readily seen, if we suppose the same witness, who is called to prove the party’s admissions of the contents of a deed, to state also, upon further examination, that he, upon his own knowledge and remembrance, could state the contents, and that they were entirely different from those stated by the party, so as to show that the party by mistake understood the deed to operate more strongly against him than in fact it did. Would it not seem as strange a thing as can-be, that the better recollections of the witness, as they may be, of the contents of the instrument — which, perhaps, he attested — should not be admissible, while his recollections of the party’s declared and mistaken recollections, as to the contents, should be sufficient to establish them? There is clearly in each case the danger, that the Court and jury may be misled ; on which the rule of evidence rests, which rejects inferior evidence, because better may’ be had, and upon that ground requires the production of deeds as the best proof of their contents. In this country that view seems to have been generally taken of the question. In Welland Canal Company v. Hathaway, 8 Wend. 484, the rule is stated in very correct terms, as it seems *595to the Court, by Mr. Justice Nelson, now of the Supreme Court-of the United States. After citing several cases, he laid it down, as an undeniable proposition, that the admissions of a party are competent evidence only in cases where parol evidence is admissible to establish the same facts, or, in other words, where there is not, in the judgment of the law, higher and better evidence in existence. He said further, that it would be a dangerous innovation upon the rules of evidence to give any greater effect to the admissions, unless in open Court; and the tendency would be to dispense with the production of the most solemn documentary evidence. No case to the contrary in this Country has been found; and it is in the experience of each member of the Court, that in this State the rule on the circuits has always been to require the deed itself. The present is the first instance in which a question has been raised on it, and the Court feels bound to abide by the old rule.

' As to the other point, that secondary evidence of the contents of the deed was admissible, because the deed, though in existence, was in another State, the case of Davidson v. Norment, 5 Ire. 555, is a direct authority the other way.

Pearson, J.

Is it competent to prove the admissions of a party, as to the contents of a writing, without notice to produce it, or accounting for not offering the writing itself?

According to the English cases, such evidence is competent, upon the ground that the admissions of a party against his own interest is primary, and not secondary, evidence. Slatterie v. Pooley, 6 M. & W. 663. Regina v. Welch, 2 Car. R. 61 E., ch. 1, sec. 296. One of thq points on the trial at nisi prius was the admissibility of declarations of the defendant, as to his appointment, which was in writing. The case was reserved for the consider-*596átion of the fifteen Judges ; and when it was called for argument, the prisoner’s counsel abandoned the point, as not debatable. “According to the case of New Hall v. Holt, 2 M. & W. 662, and Slatterie v. Pooley, id. 663, I must concede, that admissions made by a party, as to the contents of a written document, are evidence against him.” See Best, on the principles of evidence.

After much reflection, according to my judgment, the “reason of the thing” is against the admissibility of the evidence. I therefore concur in the opinion, that the evidence was not admissible.

Per Cujuau. Judgment affirmed.