
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    Oswald v. King.
    
    In trover for a deed of conveyance of land, it is not necessary to give the defendant notice to produce the deed to be given in evidence at the trial; and parol evidence shall be admitted of the existence and con» tents of the deed, unless it be produced, without notice.
    Motion for a new trial. Trover, for a deed of conveyance of land, tried before Smith, J., in Lexington district. The declaration set forth the instrument of writing, for the conversion of which the action was brought; and at the trial, the plaintiff proved a demand and refusal. But it was objected to any evidence being given of the existence and contents of the deed, without proof of notice to the defendant to produce it at the trial. This objection was overruled. Under the charge of the court, the jury found a verdict for the plaintiff for what the writing was proved to be worth, or the value of the land, (300.)
    [The deed was acknowledged to be in the defendant’s possession. He had borrowed it from the plaintiff to draw another by; and afterwards refused to restore it.]
    Egan, in support of the motion in this court,
    contended, that the damages were excessive. That the deed ought to have been produced, in order that its value might appear. That the best evidence was not given that the nature of the case admitted of. That parol evidence ought not to have been given without requiring the defend. ant t0 produce the deed at the trial. Cited 1 Esp. Rep. 50. -
    
      Note. On an indictment for stealing a bill of exchange, parol evidence of the bill was received, although notice to produce had not been given, either to the-prisoner or his attorney. 1 Leach Cro. Ca. 330, King v. Aides. Q. Is not the declaration in trover, a sufficient notice ? Would notice be necessary in detinue of charters?
    Stake, E contra, was stopped by the court.
   3d May, 1811.

Gkimke, J.,

delivered the opinion of the court. That it was not necessary to give notice to the defendant to produce the deed. That if he could derive any advantage from it, he might have produced it himself. It was his own folly, or neglect, if he suffered by its non.production. The case of Cowans v. Abra-hams, 1 Esp. Rep., was for a bill of exchange. But even in that case, the decision does not appear reasonable. In a later case, Bucher v. Jarratt, 3 Bos. and P. 148, for a certificate of a ship’s register, notice to produce the instrument was not deemed necessary. It has not appeared that the damages are excessive.

Motion rejected.  