
    Samuel Pickering v. David Meyers.
    The only exceptions to the rule, that parol evidence of the contents of a written instrument, in the possession of the opposite party, cannot be admitted without proof of notice to produce it, are — where the party is charged with the possession by the nature of the proceedings; or he has fraudulently obtained possession of a written instrument belonging to a third person ; or it appears that the writing is in Court, and the party refuses.to produce it.
    Tried before Mr. Justice Gantt, at Union, Fall Term, 1830.
    This was an action of assumpsit for overseer’s wages. It is not stated in the brief, whether the plaintiff declared specially, or only on the common counts. The agreement proved was verbal; but in the course of the trial, it appeared, that the terms of it had been subsequently reduced to writing, and that the writing was in possession of the defendant: His Honor permitted the plaintiff to give evidence of its contents; although the objection was taken, that the defendant had not been served with notice to produce the original. After verdict for plaintiff, a non-suit and new trial were moved for on various grounds, which were extensively argued ; but the single ground on which the Court granted anew trial, renders furtherdetailmf the case unnecessary.
    Herndon, for the motion.
    Blanding, contra.
    
   Johnson J.

delivered the opinion of the Court.

The general rule clearly is, that notice is necessary where one party wishes to avail himself of written evidence in possession of the other. The exceptions are, where from the nature of the proceedings, the defendant has notice that the plaintiff means to charge him with the possession of it; as in trover for a bond ; How v. Hall, 14 East, 274. And in an indictment for stealing a promissory note; Leach, 336. Or where the party had fraudulently obtained the. possession of a written instrument belonging to a third person ; Leeds v. Cook, 4 Esp. N. P. C. 256. And it seems also that the Court will permit the contents to be given in evidence, when it appears that the writing is in Court, and the party refuses to produce it; 2 Stark. Ev. 362, note q.

None of the proceedings in this case have any reference to a written agreement, and judging from them, it was impossible the defendant could know, that the plaintiff intended to charge him with the possession of the agreement; or that he even intended to rely upon it in support of his action : nor is it pretended that the defendant had obtained the possession fraudulently ; or that it was in Court on the trial. Parol evidence of its contents was therefore improperly admitted. Motion granted.  