#### HORACE L. ROBARDS *vs.*JOEL McLEAN.

To entitle a party to give evidence of the contents of a paper, which, it is alleged, has been lost, it is sufficient to shew, that there is no reasonable probability that any thing has been suppressed.

Thus, where a negro slave was taken into the defendant’s stage, on his way from Granville *to McDowell*County and afterwards absconded, it was competent for the defendant to show, by parol testimony, that tho slave had a written permission to travel from Granville to McDowell, alone, he be. ing on the ordinary road between Granville and McDowell, when he was received into the defendant’s stage.

Appeal from the Superior Court of Law of McDowell County, at the Spring Term, 1848, his Honor Judge Battle presiding.

*523The case is as follows. At the time the transaction took place, of which the plaintiff complains, he resided in the county of McDowell, and having gone into Gran-ville County, took with him a negro slave, his property, by the name of Reuben. When about to return home, Reuben complained of being unwell, and was left in the care of Dr. Robards until sufficiently recovered to travel. An agent was afterwards sent by the plaintiff for Reuben, who, finding him in the town of Oxford, directed him to get ready to return home the next day. That night Reuben left Oxford, without any permit in writing or otherwise as alleged, and went to Hillsboro’, near which place, he was permitted by the defendant’s agent, to take a seat in the stage, belonging to the defendant and in which he was conveyed to Greensborough, whence he made his escape and never after returned to the plaintiff’s service. The action is brought to recover damages for the loss of Reuben. One ground of defence was, that the plaintiff had given his slave Reuben a written permit to return home alone, and, to prove it, the defendant introduced one Mr. Gibbony, who testified, that he resided about four miles from the town of Greensborough, on the stage road leading to Salisbury, and on the direct rout, which Reuben would have to pass, on his return home from Granville, that Reuben came to his house and presented him a paper, which, after reading, he returned to Reuben, the contents of which the defendant’s counsel offered to prove, after shewing that notice had been served on the plaintiff to produce it. This evidence was objected to by the plaintiff’s counsel; on the ground, that it was not shown, that the paper was in the possession or under the control of the plaintiff. The Court admitted the evidence, because the paper was in the possession of the plaintiff’s own slave, and also because it sufficiently appeared, that it was lost by having been carried off by the slave. The witness then stated, that the paper writing was directed to him, in the form of a note or order, *524requesting him, if Reuben’s mule should give out, he would furnish him with a horse, and let him have ten dollars, which John J. Shaver would return, as soon as the boy should reach Salisbury, and also to give him any other assistance he might require, for which he should be compensated. A verdict was rendered for the defendant, a rule for a new trial discharged, and appeal was taken to the Supreme Court.

*Avery*and *Guión,*for the plaintiff.

*N, W. Woodjin*and *Gaither,*for the defendant.

Nasii, J.

The whole case turns upon the admissibility of the parol evidence to prove the contents of the pass or permit. We see no ground to complain of the judgment. Before us it has been urged, that the notice to the plaintiff could not authorise the parol evidence of the contents of the alleged pass, because the case showed it was not in his possession. This may be true, but it was not upon the ground, that the paper was then in his possession, that the notice was given, but because the case showed, it was last seen in the possession of his slave, and therefore under his control, and to this he answers, that it is not in his possession nor under his control, because the boy, Reuben, had never returned to his possession ; in other words that he had runaway and vras lost to him. So that the plaintiff, himself, proves that the pass is lost. It is upon this ground, we think his Honor’s opinion was right. It has been further argued by the plaintiff’s counsel, that the pass, according to the testimony was as much under the control of the defendant as of the plaintiff and it is insinuated, rather than asserted, that before he could resort to the secondary evidence, he ought to show that he had sent to Ohio, where, it is understood, Reuben is, and procured from him the pass, and the case of *Deaver and Rice,*2 Ire. 280, has been cited as an authority. That case decides, that when an execution was shewn to have *525been in tbe hands of a constable, it is not sufficient, to let in the secondary evidence of its contents, to show, that the constable had removed to another State, and had left his papers generally with an agent, who testified that the execution would not be found among the papers so left. This decision was unquestionably made upon correct grounds. The party, offering the secondary evidence, had not shown that the execution was lost; it might still be in the possession of the constable, and it was in the pow’er of the plaintiff to procure his deposition. Here the negro Reuben had runaway from his master.' The case does not show where he is, and there is no presumption, if he was, as was alleged, in the State of Ohio, that he still had in his possession the permit or pass, nor was there any mode known to the law, whereby the defendant could, if it was still in his possession, have obtained it or proved by Reuben its loss. To admit this secondary evidence, it is sufficient to show, that there is no reasonable probability, that any thing has been suppressed. Mc*Gahey and Alston, 2*M. & T. 206, *2*St. N. P. 152. This case differs from that of *Harvin*& *wife against Hunter*& *Springs,*at this term, in this, that, in the latter case, it does not appear sufficiently to the Court, that the originals were lost; here that fact does affirmatively appear.

We have examined the cases to which our attention has been called by the plaintiff’s counsel, and while we admit their correctness do not think them applicable to the case before us.

Per Curiam. judgment affirmed.