On an objection being taken to this evidence, the court said, that whoever would give parol testimony of the contents of a deed or other instrument, must entitle himself thereto, on the grounds of its being lost or destroyed, or being in the possession of the adverse party and that notice had been given to him to produce it. The law abhorred nothing more than giving parol evidence of written papers, and it was only tolerated on the principle of necessity, which must be clearly shewn to the court.
Though the son might not know where the bill of sale was to be found, the case might be otherwise as to the father; and though the latter was unable to attend court, yet his affidavit of the loss of the paper before a magistrate would be received by the court on this collateral fact. The plaintiff suffered a nonsuit.