Robards v. . McLean , 30 N.C. 522 ( 1848 )

The case is as follows: At the time the transaction (523) took place of which the plaintiff complains, he resided in the county of McDowell, and having gone into Granville County, took with him a negro slave, his property, by the name of Reuben. When about to return home Reuben complained of being unwell, and was left in the care of Dr. Robards until sufficiently recovered to travel. An agent was afterwards sent by the plaintiff for Reuben, who, finding him in the town of Oxford, directed him to get ready to return home the next day. That night Reuben left Oxford, without any permit in writing or otherwise, as alleged, and went to Hillsboro, near which place he was permitted by the defendant's agent to take a seat in the stage belonging to the defendant, and in which he was conveyed to Greensboro, whence he made his escape and never after returned to the plaintiff's service. The action is brought to recover damages for the loss of Reuben. One ground of defense was that the plaintiff had given his slave Reuben a written permit to return home alone, and, to prove it, the defendant introduced one Mr. Gibbony, who testified that he resided about four miles from the town of Greensboro, on the stage road leading to Salisbury, and on the direct route which Reuben would have to pass on his return home from Granville; that Reuben came to his house and presented him a paper, which, after reading, he returned to Reuben, the contents of which the defendant's counsel offered to prove, after showing that notice had been served on the plaintiff to produce it. This evidence was objected to by the plaintiff's counsel, on the ground that it was not shown that the paper was in the possession or under the control of the plaintiff. The court admitted the evidence, because the paper was in the possession of the plaintiff's own slave, and also because it sufficiently appeared that it was lost by having been carried off by the slave. The witness then stated that the paper-writing was directed to him, in the form of a note or (524) order, requesting him, if Reuben's mule should give out, he would furnish him with a horse and let him have $10, which John J. Shaver would return as soon as the boy should reach Salisbury, and also to give him any other assistance he might require, for which he should be compensated. A verdict was rendered for the defendant, a rule for a new trial discharged, and appeal was taken to the Supreme Court. The whole case turns upon the admissibility of the parol evidence to prove the contents of the pass or permit. We see no ground to complain of the judgment. Before us it has been urged that the notice to the plaintiff could not authorize the parol evidence of the contents of the alleged pass, because the case showed it was not in his possession. This may be true, but it was not upon the ground that the paper was then in his possession that the notice was given, but because the case showed it was last seen in the possession of his slave, and therefore under his control; and to this he answers that it is not in his possession nor under his control, because the boy Reuben had never returned to his possession; in other words, that he had run away and was lost to him. So that the plaintiff, himself, proves that the pass is lost. It is upon this ground, we think, his Honor's opinion was right. It has been further argued by the plaintiff's counsel that the pass, according to the testimony, was as much under the control of the defendant as of the plaintiff, and it is insinuated, rather than asserted, that before he could resort to the secondary evidence he ought to show that he had sent to Ohio, where it is understood Reuben, is, and procured from him the pass; and the case of Deaver v. Rice,24 N.C. 280, has been cited as an authority. That case decides that when an execution was shown to have been in the (525) hands of a constable, it is not sufficient, to let in the secondary evidence of its contents, to show that the constable had removed to another State, and had left his papers generally with an agent, who testified that the execution would not be found among the papers so left. This decision was unquestionably made upon correct grounds. The party offering the secondary evidence had not shown that the execution was lost; it might still be in the possession of the constable, and it was in the power of the plaintiff to procure his deposition. Here the negro Reuben had run away from his master. The case does not show where he is, and there is no presumption, if he was, as was alleged, in the State of Ohio, that he still had in his possession the permit or pass, nor was there any mode known to the law whereby the defendant could, if it was still in his possession, have obtained it or proved by Reuben its loss. To admit this secondary evidence it is sufficient to show that there is no reasonable probability that anything has been suppressed. McGahey v.Alston, 2 M. and T., 206; 2 St. N. P., 152. This case differs from that ofHarven v. Hunter, ante, 464, in this, that in the latter case it does not appear sufficiently to the Court that the originals were lost; here that fact does affirmatively appear.

We have examined the cases to which our attention has been called by the plaintiff's counsel, and, while we admit their correctness, do not think them applicable to the case before us.

PER CURIAM. Judgment affirmed.

Cited: McAulay v. Earnhardt, 46 N.C. 504; Plank Road Co. v. Bryan,51 N.C. 85.

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