John R. Livingston, against William Rogers, 1 Cai. Cas. xxvii

Per curiam. The" question ‘upon the bill of exceptions interposed in this cause, is, xvhether it be competent for the plaintiff to give petrol evidence of the contents of the letter of attorney to Me Evers, under the circumstances defeated in the bill of exceptions, or must the instrument itself be produced? The ancient rule of the common law was highly rigid in this respect. It dispensed with the production of instruments in a few select cases, and then only for peculiar and specific causes.

But experience under that rule, has, in the progressive improvements of English jurisprudence, resulted in a relaxation of the law on the subject. The non-production of instruments is nowr excused, for reasons more general, and less specific, upon grounds more broad and liberal than were formerly admitted. In 3 D. & E. (151) a declaration on a deed was sustained, and the proferí dispensed -with, upon the geneiral allegation of a loss by time and accident. In Beekford v. Jackson (Esp.

Rep. 337) the Plaintiff counted on a deed lost or mislaid; upon which issue was taken, and the same recognized, as warranted in law, by Lord Kenyon, who presided at the trial. Other cases are to be found in the English reports, of similar import, sanctioning the same principle. Upon the authority of those cases, and the reason of the thing, we are of opinion, that parol evidence of the contents of the letter of attorney to Mr. Me Evers, ought to have been received, and that therefore error has intervened in this respect.

Upon the admission of such testimony, should the trial disclose evidence, or reasonable grounds of suspicion, of a suppression of the instrument, of mala tides in the plaintiff, or should the evidence of its existence and legal efficacy not be clear and satisfactory, it will become the duty of the court to direct and charge the jury for the defendant; a venire facias de novo, must therefore be awarded. Read v.Brookman.