
    Executors of John Gray against John Kernahan.
    A person had |^snt Snfhafrun^nd “imlgiidiK ® Ty action on this note, plaintiff may go mto evivious notice to «^defendant to ie&ntaoV“th¿ ilefen<Iantniustbe ™t“rethi cautute of limita1
    This was an action to recover the amount of a promissory note, to which the general issue and statute of limitations were pleaded. The time limited by the statute had run against the before the bringing of the action, and it had fallen into the hands of the defendant under the follow- • . . . . ... ms: circumstances: a witness m the case, a Mr. 0 Lewers, presented the note to the defendant for ... _ . . i j * i payment, who having, by this means, obtained possession of it, said, “ I am glad I have got my . . . - hands on it; 1 have paid it long ago ; and 1 will now keep itor words to that efft ct. When the plaintiff onered to go into evidence or contents of the note, it was objected, on the part of the defendant, that he ought not to be suffered to go into evidence of its contents, without notice to the defendant to produce it; but this -objection was overruled, and it was also insisted that there was no evidence to take the case out of the statute of limitation; but the Jury, under the direction of the Court, found a verdict for the plaintiff.
    A motion is now made for a new trial, on the following grounds:
    First, That plaintiff ought not to have been suffered to go into evidence of the contents of the note, without notice to the defendant to produce it.
    
      Second, That the evidence was not sufficient 1 to take the case out of the statute.
   The opinion of the Court was delivered by

Mr. Justice Johnson.

1st, The general rule is, that to enable one party to go into secondary, or parol evidence, of the contents of a writing which is in possession of the opposite party, notice to produce it at the trial is necessary; but to this rule there are exceptions; as where from the nature of the proceedings, a defendant must know that the plaintiff intends to charge him with the possession of the writing; as in trover for a bond, notice is not necessary. So in a criminal prosecution for stealing a promissory note, it was held that notice to produce it was not necessary. Phillips, 338, 339. So when a party has fraudulently got possession of an instrument belonging to the opposite party, notice is not necessary; as where a witness had been called on by one party to produce a paper at the trial, and after the commencement of the action had given it to the opposite party, lb. 340.

The application of the principle of these exceptions to the general rule, to the present case, is plain and manifest. The proceedings must have apprised the defendant that this note was the foundation of the action, and he, by a fraudulent and forcible act, had deprived the plaintiff of the best evidence the nature of the case admitted of, and now asks that he may be compelled to produce it. He knew the noté was neces- •, í sary to the action, and had obtained it by iraud, and therefore comes within the exceptions.

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2d. The only evidence relied on to take the case out of the statute of limitations, was the observation of the defendant at the timé hé got possession of the note, “ I ani glad I have got my hands on it; I have paid it long ago, and I will now keep it.” I am aware that the slightest acknowledgment of a debt has been held sufficient to take it out of the statute, and if defendant said no more than “ I am glad 1 have got my hands on it,” there might have been some reason for' considering it as an admission that he gave the note, and perhaps from thence it might be possible to- infer an acknowledgment, the slightest indeed, that the debt was still existing; but when he adds, “ 1 have paid it long ago,” it appears to me to be the very case provided for by the statute, and the rule certainly is, that an acknowledgment must be taken altogether.

I am of opinion, therefore, that the defendant is entitled to a new trial on this ground.

Grimké, Colcocle, Cheves, and Qantt, J. concurred.  