
    Asa B. Blood, by his next Friend, versus Luther Harrington.
    In order to establish, on a trial, a title to personal property by purchase, it is not necessary for the purchaser to offer his bill of parcels n evidence ; but he may prove his purchase by paroi evidence.
    If the other party wishes to have the bill of parcels produced on the trial, he should give notice beforehand to the party who has it in his possession.
    Where a suit is brought by a minor in his own name, without any guardian or next friend, his infancy may be pleaded in abatement.
    But if the infancy of the plaintiff is pleaded in abatement, the court may allow him to amend by inserting in his writ that he sues by A, his next friend.
    
      It seems that the person whose name is so inserted, will be liable for costs from the beginning of the suit, if the defendant prevails.
    This was replevin for one hundred and twenty sheep, which had been attached by the defendant in a suit against Jacob Newcomb.
    At the Common Pleas the defendant pleaded in abatement, that the plaintiff was an infant at the time when the writ was sued out, and had sued in his own name, and not by his guardi an or next friend. The plaintiff did not reply to this plea, but, at a subsequent term, obtained leave to amend by inserting, after his description in the writ, the following words, — “ who sues by John Howard of Roxbury in the county of Norfolk, leather-dresser, his next friend.”
    The writ was indorsed by the plaintiff, and at the second term in the Common Pleas a question was made, whether he was a good indorser, and whether a new one could be sub stituted.
    At the trial in the Supreme Court, before Morton J., the plaintiff claimed to have purchased the sheep of Luther A. Richards. Parol evidence was produced to prove the sale. In the course of the examination of the witnesses it appeared, that, at the time of the sale, a bill of parcels receipted was giv.en by Richards to the plaintiff. The defendant’s counsel then nojected to the admission of paroi evidence to prove the sale. But no notice had been given to produce this paper. The defendant’s counsel contended that the plaintiff used it at the trial in the Common Pleas, and the plaintiff’s counsel that the defendant used it. It was used on that trial, but it did not appear by which party. The judge overruled the objection, and permitted the plaintiff to proceed with his paroi evidence. To this decision the defendant’s counsel excepted.
    A verdict having been returned for the plaintiff, the defendant moved for a new trial on account of the decision above stated. He also filed a motion in arrest of judgment, or for the dismissal of the action, for the following causes ; 1. Because the plaintiff was a minor when the action was brought, and yet sued out the writ in his own name, and not by his guardian or next friend, the name of the next friend having been inserted, against law, after the action had been in court four terms : 2. Because the plea in abatement remained unan- swered : 3. Because the plaintiff, being a minor, indorsed the writ: 4. Because the replevin bond, which was signed by the plaintiff as principal, was insufficient on account of his being a minor, and therefore the service was unlawful.
    
      T. Fuller and J. Russell for the defendant.
    The plaintiff was bound to produce the bill of sale, as the best evidence of his title. 3 Stark. Ev. 1002; Wood v. Morris, 12 East, 237 ; Rolleston v. Hibberts, 3 T. R. 406.
    
      Jan. 20th, 1830,
    The action ought to be dismissed, because the Common Pleas gave the plaintiff leave to amend after the plea in abatement ; because the replevin bond, which is essential to support the action, was void on account of the plaintiff’s minority; and because the writ was indorsed by a minor. Cady v. Eggleston, 11 Mass. R. 282; Moors v. Parker, 3 Mass. R. 310. As only one plea in abatement was allowable, it is not now too late to take advantage of the other objections, on this motion.
    The plaintiff could not get into court except by his next friend. He could not appear by attorney. Stone v. March, Cro. Jac. 580; S. G. Bulst. 24; 1 Co. Lit. 135 b, and Hargr. note 220.
    
      Hoar and Brooks, contra,
    
    contended that the plaintiff was not bound to produce the bill of parcels at the trial, as it formed no part of his title to the property. 3 Stark. Ev. 1054. The bill of parcels is not necessarily evidence between these parties, as it is the mere declaration, not under oath, of a third person.
    Infancy must be pleaded in abatement; and if it is not, judgment cannot be stayed for that cause. When the defendant pleaded in chief, he waived his plea in abatement. St. 21, Jac. 1, c. 13, § 2, cited in 2 Saund. 212, note; Schemerhorn v. Jenkins, 7 Johns. R. 373; Cowne v. Bowles, 1 Salk. 93, 205.
    Fuller, in reply,
    said that the plea in abatement was not waived, but it was overruled by the amendment allowed by the Court of Common Pleas, from which the defendant could not appeal, it being but an interlocutory order.
    
      April term, 1830
    
    
      
       See Conn v. Coburn, 7 N. Harap. R. 368.
    
   Parker C. J.

afterward drew up the opinion of the Court. The bill of parcels was not essential to the plaintiff’s recovery. It generally amounts to nothing more than a receipt for the price. The purchase may undoubtedly be proved without it. If however it is wanted by the adverse party, to be, used by him as evidence, it ought to be produced, if it is in the possession of the plaintiff or if it belongs to him, but, like other papers which are not essential to the plaintiff’s case, notice to produce it should be given to him. In this case the original bill of parcels was used on the trial at the Court of Common pleas, but it does not appear by which party. It is undoubt edly on the files of the clerk. It is made the defendant’s duty, on an appeal by him, to bring up the copies ; and if he wants the original of any particular paper, he should procure it from the files, by leave of court, if that is- necessary., It is as much within his, as the other party’s control. There is no ground for a new trial on this point.

With regard to the suit’s having been commenced by the plaintiff while a minor, without the intervention of a prochein ami, it might have been pleaded in abatement. ' The admission of the prochein ami by way of amendment, we think, removes the objection. He is answerable for costs from the beginning, and the judgment will stand correct.

Motion for new trial overruled. 
      
       See Young v. Young, 3 N. Hamp. R. 345; Smithy. Van Houien, 4 Hal sted, 381; Smith v. Minor, Coxe, (N. Jers.) 416.
     