
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1812.
    Nathan Ford v. Willis Whitaker.
    A witness who testifies that he received instructions in writing, from the defendant, a commissioner of the roads, directing him to open a certain road, must produce those instructions, and parol evidence of their contents cannot be given.
    Trespass quare clausum, fregit, tried at Fairfield, April, 1811, for cutting a road through the plaintiff’s land. One Ferguson was examined, a witness, who testified that he was an overseer of the road; that he received direction from the defendant, as a commissioner, to lay off a new road through the plaintiff’s land ; and that by virtue of those directions, he did lay off and open a road accord, ingly. On his further examination, he.said, that the defendant was not present when he opened the road; and that the only directions he had received from the defendant were in writing, and that these written instructions were then in his possession at home. It was here objected that the writing ought to be^produced, and that parol evidence of its contents could not be received : but the court overruled the objection. The case was submitted to the jury, and they retired with directions to seal up their verdict, and attend in the morning. Next morning they gave in their verdict sealed. The verdict vyas opened and read by the clerk, in these words, « No bill.”
    The foreman then explained, by saying that it was their intention to nonsuit the plaintiff. The judge directed them to correct their verdict according to their meaning ; whereupon they retired and shortly after returned into court with the following, “ we find for the plaintiff fifty dollars.”
    Motion for a new trial, on the ground, that parol «evidence of the written instructions given by defendant, was inadmissible.
   Nott, J.

It is a general rule of law, that when any fact is to be established by written evidence, the writing itself must be produced ; and parol evidence of its contents cannot be received, unless the party will shew that it was not in his power to produce. the writing. And if the defendant is charged with the act of another person on account of written instructions which he has given, those instructions ought to be produced, in order that the court may see the extent of his liability.

New trial granted.  