
    Lessee of James McCally against Samuel Franklin.
    Contents of a deposition lost, refused in evidence under certain circumstances.
    Ejectment for lands in Middle Paxtang township.
    The defendant had taken the deposition of John Murray, esq. un der a rule of court, having given regular notice thereof to the lessor of the plaintiff. The deposition being lost, parol evidence was offered of its contents ; and it was insisted, that as parol proof of a record lost or burnt might be received, so it might in the present instance.
    
      The defendant being sworn, said, that he had of his own accord delivered the deposition to the witness at a former Court of Nisi Prius, in order to refresh his memory, and had never received it again. He once called on the witness for the deposition, but he could not tell where it was, and said he had been in the habit of destroying such papers. The defendant lived about one mile from the witness, who lingered in his last illness above three months before he died ; and the defendant had never called on him to take a second deposition.
    The court overruled the parol evidence offered, from the danger of the precedent. Admitting the purest intentions in the party who would prove the contents of a deposition, it is evident that innumerable mistakes must ensue from the practice. IIow often 'is testimony misunderstood or perverted in open court? Nothing but absolute necessity can justify such parol evidence. But here the defendant knew the deposition was lost during the witness’s life. lie might have supplied the lost without great difficulty, lie lived but one mile from the witness, who lingered in his last illness above three months, and yet no efforts are used to replace the deposition. Such circumstances of laches and neglect deserve no favor.
    Mr. Hamilton, pro quer.
    
    Messrs. Duncan and Montgomery, pro def.
    
   Verdict for the defendant.  