case bartlett against GAWLER if on proper notice a party refuse to produce a  deed necessary to prove the issue the other party may give parole evidence of  its content motion for a new trial on the follow case I Colebrook seize in fee  mortgage to a m n for one thousand year the plaintiff Bartlett recover a  judgement against Colebrook who afterward by lease and release convey the  inheritance by a absolute sale to a m n the plaintiff bring a to know facias  against the tertenants of these land to show cause why they shall not be take  in execution on this judgement against Colebrook the defendant Gawler come in  and plead the mortgage for one thousand year which be assign to he and then  pray judgement whether the plaintiff ought to have judgement against he except  for the reversion the plaintiff reply that after the assignment of the  mortgage to the defendant I Colebrook by lease and release of the premise  release the fee and inheritance to the defendant whereby the term of one  thousand year become merge in the inheritance the defendant rejoin that I  Colebrook do not release in manner and form c and upon that issue be join to  prove these release the plaintiff give the defendant proper notice to produce  they on the trial and offer to prove that the deed be in the defendant custody  and likewise offer to prove they by one of the subscribe witness who see the  execution of they but the defendant though call upon refuse to produce the  release and this evidence be disallow by the judge who try the cause as it be  only parole evidence and as the defendant be purchaser for a valuable  consideration whereupon judgement be give for the defendant and for this  reason the plaintiff move for a new trial the question be as the defendant  have refuse to produce the deed whether the plaintiff may give parole evidence  of it the plaintiff counsel cite Eggleton v speak Carth a Wyemarks case   b  and dr Leyfields case   c that it fall within the rule of law that the best  evidence be to be give that the nature of the case will admit of and as the  defendant be prove to have the custody of the deed the plaintiff can get no  other evidence of it if the plaintiff give a false account of it the defendant  may produce the deed and set it right modern it be argue for the defendant  that this be call upon a man to give evidence against himself and will  introduce perjury and a difference be take where a person have a right to a  deed and the other party get the possession of it modern er p tortiously there  the other may give parole evidence of it and cite Edward c which be in   a lee  chief justice it be not material to determine what effect this release will  have be it produce the plaintiff say it will operate as a merger of the term  and let in the judgement creditor on the estate in fee the issue be whether  there be such a release or not and the question be whether on this proof  parole evidence of it ought to have be receive I think it fall within the  general rule that the best evidence be to be receive which from the nature of  the thing can be give the reason for give the other party notice to produce  the deed before parole evidence can be give of it be that he may be apprise of  your evidence and be prepare to contradict you if you give a false evidence of  it by produce the deed in court which will prevent the danger of perjury the  plaintiff have a suppose interest in it and be think he shall be able to prove  his issue by it and he need not have such a interest as a party or privy have  and I think this evidence ought to have be receive the other judge be of the  same opinion wright justice cite a case of pine v lady Seymour easter term in  the nine year of queen whether before Lord Parker rule absolute for a new  trial modern trinity term the fourteenth of George the second in the common  plea sir John will Knt chief justice sir Francis page Knt sir John fortescue  aland Knt sir William fortescue Knt justice sir Dudley rider Knt  attorneygeneral sir John strange Knt solicitor general