McCracken v. . McCrary

50 N.C. 399

• Court: Supreme Court of North Carolina
• Decided: June 5, 1858
• Status: Published

Opinion

Pearson, J.

There being no evidence that the bond was in the possession, or within the control of the defendants, the notice to produce it amounted to nothing. The fact, that the bond was delivered to Brown, and that he had left the State, tended to show that he had it in his possession ; if so, the fact of its being out of the State, did not make parol evidence of its contents admissible; Threadgill v. White, 11 Ire. Rep. 591; Davidson v. Norment, 5 Ire. Rep. 555 ; 1 Greenleaf, 113. The calculation made by the witness, was based on the contents of the bond and the endorsed credits, consequently, it was secondary evidence, and was inadmissible, in the absence of proof that the bond was lost or destroyed.

There is error, venire de novo.

Pee Cueiah, Judgment reversed.