
    Columbia, November Term, 1812.
    Nathan Ford vs. Willis Whitaker.
    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 accordingly, 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 m 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 was opened, and read by the clerk in these words, “ No Bill.”
    
      whotestL5 *e?ecSveá Nstra.c' tions in writing defendant, ^oc°™™E'' the roads, himto open roadf must structions, and parol evidence contents
    
      The foreman then explained, by saying that it was their intention to non-suit the plaintiff. The judge directed them to correct their verdict according ¿0 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 part 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 show 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.  