
    Benjamin D. Anderson vs. Joel Root, et al.
    When notice is served by one party to a suit upon the other to produce a certain paper, and the party served with notice produces a certain paper not answering in all particulars the one described in the notice, and states at the same time that it is the only paper in his possession of the kind called for, such statement is not evidence for the jury.
    Where a party in possession of a paper is served with notice to produce it, such paper is not evidence for him until it is delivered to the other party for inspection ; after which, it is evidence for the party producing it, if not used by the party calling for it.
    A. sued R. and others in assumpsit upon a note which was not in his possession, and gave the defendants notice to produce it; one of the defendants introduced a writing obligatory, answering in all other particulars the note sued on except the seal; upon which, A. read a receipt of the defendants for a note in all respects like that sued on; held, that the receipt prima facie entitled A. to recover ; but it could be explained and shown, that the writing obligatory was really the paper receipted for; in which event, A. should have dismissed his action of. assumpsit.
    ERROR from the circuit court of Pontotoc county; Hon. Hugh R. Miller, judge.
    Benjamin D. Anderson sued Joel Root, Hugh R. Miller, and Jacob Thompson, in assumpsit, upon a note made by them, ■ payable to him”. The defendants plead non assumpsit and payment.
    A trial was had and verdict rendered for the defendants; and. the court overruling a motion for a new trial, the plaintiff filed a bill of exceptions; from which it appears, that at the trial he gave notice to the counsel of the defendants to produce the note sued on, or evidence of its contents would be offered. Miller, onp of the defendants, in answer to the notice, stated to the court that he had not, and never had the note described in the notice; that the only- writing he had ever received from the plaintiff, or had, similar to the one called for, was a writing obligatory, which he then produced, and which answered in all particulars the note sued on except the seals. Upon the production of this note, the plaintiff read to the jury a receipt of Miller’s for a note similar to that sued for.
    This was all the evidence. The plaintiff below sued out this writ of error.
    
      McNutt and Paxton, for plaintiff in error, contended,
    1. That the court below erred in not granting a new trial.
    2. In permitting the statement of Miller, in answer to the notice to produce the note sued on, to be made in the cause.
   PeR Curiam.

The plaintiff declared on a promissory note,which, it seems, was not in his possession. He gave notice to the defendants’ counsel to produce it on the trial, or evidence would be offered of its contents. Miller, one of the defendants, stated to the court that he had not in his possession such an instrument as that described in the declaration and notice; that the only instrument of writing he had received from plaintiff, or had in possession, similar to the one described in the notice, vias one which he then produced to the court. The writing produced by him is under seal; in every other respect it answers the description in the declaration. The'plaintiff’s counsel then introduced a receipt given by Miller for a promissory note, which corresponds in all things with that described in the declaration, from which receipt the declaration was no" doubt framed. The jury found a verdict for the defendants, and the plaintiff moved for a new trial.

The statement made by Miller, although professedly made to the court, was no doubt made in presence of the jury, and probably regarded as evidence. If so, it was an error. Miller was not only a party to the suit, but his statement was not made under oath. The receipt was prima facie evidence of the existence of.such a note as that described in the declaration, and that the same was in possession of Miller; and as to him, it was a written admission, sufficient to entitle the plaintiff to a verdict. When the notice was read, the paper should have been delivered for inspection. After such inspection, by the English rule, it would have been evidence for the defendants, but not before. 3 Phil. Ev. 1190, note 841. The defendants, however, undertook to use this instrument before it was offered to the other party. The receipt was susceptible of explanation, and if, after inspection, the plaintiff had declined to use the paper produced, it would have been competent for the defendants to have shown that a writing obligatory, and not a note, was intended by the receipt.

When the plaintiff discovered his mistake, he should have dismissed his suit. It would have been a great saving of time ' and expense.

Judgment reversed and cause remanded.  