
    Joel Rose versus Joseph D. Learned and Another.
    A nonsuit is only to be ordered at a trial for the insufficiency of ttie evidence on the part of the plaintiff, not on evidence produced by the defendant.
    Assumpsit on a promissory note for 394 dollars 22 cents, made by the defendants March 11, 1809, and payable to the plaintiff or his order.
    At the trial on the general issue at the last October term in this county, before Thatcher, J., after the plaintiff had produced the note declared on, the execution of which, on the part of the defendants, was not denied, the defendants read in evidence the deposition of one Martin Rose, which went to show that the note was * originally given on a condition which had wholly failed, and that, of course, nothing was due upon the note ; and that an agreement to that effect was executed by the witness, as agent for the plaintiff, which the witness testified had been lost by accident. The plaintiff objected to the admission of said deposition in evidence, on the ground that the note was explicit in its terms, and free from all ambiguity.
    The judge overruled the objection, admitted the deposition, and upon the evidence contained in it ordered a nonsuit, subject to the opinion of the Court.
    
      Todd for the plaintiff.
    
      Whitman for the defendants.
   Per Curiam.

The nonsuit must be set aside, and anew triar granted; because the nonsuit was ordered, not for the defect of evidence on the part of the plaintiff, but on evidence produced by the defendant, which might not have been believed by the jury.

Further, the facts contained in the deposition read at the trial would not avoid the note, unless proved by writing. The evidence that a written agreement to the same effect has been lost is not sufficient,

New trial granted. 
      
      
         [See Lock vs. Wood, 16 Mass. Rep. 317, and note. — Mitchell vs. New E. M. Ins. Co. 12 Mass. Rep. 49, and note.— Bridge vs. Sumner, 1 Pick. 371.— Babcock vs Thomas, 3 Pick. 403. — Dewar vs. Purday, 4 Nev. & Man. 633. — 3 Al & . E. 166. — Tidd, P. Forms, 6th ed. 370, 371. — Ed.]
     