
    Brisbane against Mitchell.
    To Bring in theAct'of” the* 20th of ^“ii’ which f.^eappei?1 lant shall not produced books’papers, whfch°h™shaii *?ave withheld from the arthe 2”™°' in power of the appellant arbitrators, and voluntaniy -withheld'by him"
    
    In Error.
    ERROR on a bill of exceptions to the rejection of evidence by the Court of Common Pleas of Mijflin county.
    The plaintiff below, Thomas Mitchell, brought this action against William Brisbane, on a promissory note for fifty dollars. The suit was submitted to arbitrators, under the Act of the 20th of March, 1810, who made an award in favour of the plaintiff; upon which the defendant appealed. the trial, the defendant offered in evidence the indenture of a negro girl, who was bound by two overseers of the poor to the plaintiff. This indenture had been assigned by , , . . „r , . , . the plaintiff to the defendant, and was m part, the deration, of the note on which the suit was brought. The girl was bound to Mitchell only, and not to him and his . , , . . „ . . . . , , signs, and the object m offering it m evidence was to shew that the consideration of the note had failed. The counsel for the plaintiff objected to its being given in evidence, on ■ , , . , , , , p w , ■ the ground that it had been called tor on the hearing before the arbitrators and withheld by the defendant. For the purpose of establishing this fact, he called several witnesses} who testified, that when the arbitrators met, the defendant was requested to produce the indenture. He said it could be produced, and was sent by his counsel for it. After having made a hurried search without being able to find it, he returned to the arbitrators, and was sent back by his counsel to search for it again. He made a second search, but without success. No adjournment was asked for by the defendant for the purpose of enabling him to find the indenture. The arbitrators proceeded in the case and made an award, after which the indenture was found. A witness called by the plaintiff proved that notice was given to the defendant to produce the indenture, who said it could be produced, but neither produced it, nor aske(J for time to enable him to do so, nor stated what it contained, nor by whom it was executed. The Court rejected the evidence, and the defendant excepted to their opinion.
    
      Anderson, for the plaintiff in error.
    The principle upon which this case turns is of considerable importance. The eleventh section of the Act of the 20th of March, 1810, Purd. Dig. 15, declares, that the appellant shall not produce as evidence in Court, any books or documents which he shall have withheld from the arbitrators. The question then is, what constitutes a withholding, within the meaning of the law ? It was obviously intended to be applied to those cases in which evidence was kept back with a sinister view, and not to those in which papers were not produced in consequence of ignorance or negligence. In the present case, the defendant admitted the indenture to be in his possession. He did not refuse to produce it, but it was mislaid, and as soon as it was called for, he made several ineffectual efforts to find it. He could have no improper motive for not producing it, for it was evidence in his favour of a decisive kind. This is not such a withholding as the Act of Assembly contemplates. In Estanson v. Dupuy, 2 Browne, 100, it was decided, that the paper must be in the possession of the party at the time of the arbitration, or the case is not embraced by the law.
    
      Hale, contra,
    observed that the intent of the Act of Assembly was to prevent the appellant from giving in evidence, on the trial in Court, any papers which were in his possession at the time of the arbitration, and which were not then produced. The question involved in the' present case, he said, was not proper for the decision of this Court. There was some contradiction in the evidence, and in such a case, the Court before whom the cause was tried, could alone decide on the credibility of the witnesses. That Court, therefore, was the proper tribunal to judge whether or not the paper had been improperly withheld. But the facts given in evidence afford an inference that the indenture was improperly withheld. It was in the power of the defendant to obtain time to enable him to find it; and yet he never asked for an adjournment for that purpose.
   Per Curiam. —

It is enacted by the Act of the 20th of March, 1810, see. 11, that “the appellant shall not be permitted to produce as evidence in Court, any books, papers, or documents which he shall have withheld from the arbitrators.” To bring the case within the Act, the paper must ;bave been in the power of the appellant when called for before the arbitrators, and voluntarily withheld by him. The evidence which was offered to the Court on this subject is placed on the record, and it appears to us that the indenture was not voluntarily withheld by the defendant. On the contrary, it had been mislaid, and was searched for by the defendant after he had been called upon to produce it; but it could not be found until after the award was made. It is the opinion of the Court, therefore, that it ought to have been admitted in evidence, and that the judgment should be reversed and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  