
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Hurt v. Davis.
    
      Assumpsit for work and labour will not lio whore there was a contract under seal, although the parties had agreed to waive it, and refer the matters in dispute to arbitration, but the arbitrators had made no award. Such an agreement does not put an end to the original contract, and the plaintiff's remedy is covenant.
    Parol evidence of the contents of a written instrument is inadmissible, where the instrument itself can be produced.
    
      Assumpsit for work and labor, tried before Tkiszevant, J„ in Richland district. The parties had entered into a written agreement, under seal; and afterwards a dispute having ari. sen between them, as to the fulfilment of the same, they came toan agreement by parol, to waive the written contract, and refer the matters in dispute between them to arbitration. The arbitrators made no award. This action was thereupon brought to obtain compensation for services performed by the plaintiff for the benefit of the defendant, pursuant to their written agreement. The sealed instrument in question had been placed in the hands of a third person, the mutu il friend of the parties, for safe keeping, and had not been destroyed, or cancelled, but was in court at the trial. The defendant’s counsel objected to the admission of parol evidence to prove the terms of the original agreement, as that agreement was expressed in writing, but was overruled. Parol evidence was then given of the terms and stipulation of the agreement entered into by the parties in writing, and had reference to the written instrument, which had been produced and shewn to the witness: and also ot the subsequent agreement between the parties, and oí the woik done, &c. The evidence for the plaintiff being closed, a nonsuit was moved for on the part of the defend, ant, on the ground that from the evidence produced, it appeared that (he plaintiff's remedy was mistaken : that he should have brought an action of covenant on the deed ; and that a d.-ed cannot he given in evidence, to support an action of assumpsit. This was overruled, and plaintiff had a verdict.
    The motion m this court was to set aside the verdict, and for leave to enter up a judgment of nonsuit for the defendants, on the grounds taken upon the trial.
    Nott, for the defendant,
    cited 1 Esp. Rep. 60. 1 Esp. Dig, 247. 2 Sir. 1027.
    Thowrson, for the plaintiff.
   By the court.

An instrument of writing under seal, was the substratum of this action ; and it does not appear that it was dis-annulled, or cancelled, by any conclusive and sufficient act of the parties, but was in force at the time of the commencement of the action. The action ought therefore to have been founded upon it; and the plaintiff cannot maintain assumpsit. But even admitting that the plaintiff had a cause of action independent of the deed, yet if it were necessary to the support of his action, to give in evideuce the contents of the deed, or of any of the stipulations con. táined therein, and the deed itself could, be had, it should have been required, as the best evidence the nature of the case admitted of. See 1 Dallas, 208. 3 Esp. Rep. 213.

Motion granted.

Note. The first principle of evidence is, that no evidence shall he received, hut that which is in itself the best that cau be procured, respecting the subject to which it is applied. See Powell on Powers, in the preface, an exc»l2ent illustration of the first rule of evidence.  