
    Smith vs. Robertson’s Ex’r.
    la ttovev for a ¿lull'd in the «leciarnúon loiuwe iw *-n fxt’cuti'd by II C and A G to tfty plaintiff— *hai it ivas eojnpe-tent for the plaintiff to prove, by one of the obligors Sn the bond, its execution, without producing the ijond, it' it was in She <hfei»daiitv ^possession j and lha t nt was not in cessa-'sy110 give any other notice for the production of the bond, than \Wiui was given by the declaration in the
    AjteAt, from Prime-George's County Court. This was an action of trover for sundry bonds executed by Henry T. Compton and Alexander Gibbons, to the plaintiff’s testator, each in the penal suin of §200. Tbe defendant pleaded not guilty, and tbe act of limitations. And at the trial the plaintiff offered to prove, by Alexander Gibbons, the person named in the declaration, the execution and contents of the bonds stated in the declaration, without producing the bonds, or proving that notice had been given to tbe defendant to produce them. To this testimony the defendant objected. But the Court, [ Johnson, Ch. J.^ admitted the evidence, being of opinion that it was competent for die plaintiff to prove, by the obligor of the bonds, their execution, without producing the bonds, if the same were in the defendant’s possession! and that it was not necessary to give any other notice for the production of the bonds, than what was given by the declaration in the cause.
    The defendant excepted; and the verdict and judgment being against him, he appealed to this court, where tha cause was argued before Chase, Ch. J. and Buchanan, Nicholson, and Martin, J,
    
      Magruder, for the Appellant.
    A deed must be produced, if in the power of the party. If he asks that this yule be dispensed with, he must show some circumstances which will authorise the court to dispense with it. If tha bond is lost or destroyed, proof of this fact must first ba offered. If it is in the possession of the adverse party, notice must be given to him to produce it. 1 Peake’s, Evid. 6S. If arioig v If arren, 1 Johns. Pep. 340. If trover is brought for a note or bill of exchange, notice must be given to produce the original, before evidence of its contents is admissible. 1 Peake's Evid. 110. In cases where any written paper is the subject of the action of trover, the plaintiff should prove notice to the defendant to produce it. Ibid 321. The court below seems to have thought the declaration was sufficient notice. If this is the case, notice would never be necessary in an action of trover. , The declaration roust describe the bonds or notes said to have been converted, and it is evidence of the nature of the plaintiff’s claim, but it cannot be evidence that lie wishes the bonds to be produced. Unless the plaintiff gives notice to the defendant that he requires {lie prodae* íion of the bonds, the defendant is not bound to know he Wiii want them, or to be ready to produce íbera. The plaintiff is himself to take care that he has done everything V/hich is necessary in order to make out his case.
    
      Van Korn, for the Appellee.
    Where the declaration specifies the writing for which the plaintiff goes, (as in Ibis case,) the declaration is sufficient notice. 2 Esp. Dig., SIS. The Commonwealth v Messtnger, 1 Bimnfs Rep, %73>
    
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