Story v. Patten

By the Court,

The plaintiff was improperly nonsuited. The case appears to me to fall within the well established principle, that where the nature of the proceedings or the form of action or pleadings gives the opposite party notice to be prepared to produce a writing or instrument, if necessary to falsify the plaintiff’s evidence, no other notice to produce it is requisite. The defendant must have known, from the declaration in this case, that the contents of *488the execution in his possession would come in question; that qle plaintiff could not recover without proving it. He was therefore bound to have it in court, ready to be produc'ed,. or suffer parol evidence of its contents to be given. (The People v. Holbrook, 13 Johns. R. 90. 1 Campb. 143. 3 Bos. & Pul. 143. 14 East, 274. 17 Johns. R. 293. 4 Taunt. 865. 1 Phil. Ev. 392. 2 Merriv. 464.)

In Gorham v. Gale, (7 Cowen, 739, and 6 Cowen, 467, note a,) the declaration was in the general form for money had and received, and of course gate bo notice* to the* sheriff of producing tb.efi.fa. If it was necessary for the plaintiff in this case to give notice to the defendant to* produce the execution, the case of Gorham v. Gale shews that the notice given was not sufficient; but I think notice Was tiot necessary.

Judgment reversed, and Venire de novo awarded.