Sinclair vs. Gray.-Statement of Case.

GEORGE SINCLAIR, APPELLANT, vs. JOHN D. GRAY, APPELLEE.

1. Where notice under the statute (Thom. Dig., 343, § 1,) is given to the adverse party in a suit to produce books or papers, the regular time to call for the production is not until the party who requires them has entered upon his case before the jury, until which time the other party may refuse to respond to the notice.

2. Before the court will proceed to give judgment against a party failing or re fusing to produce the book or paper demanded, it must be satisfied that the book or paper is in the possession or under the control of the party and that it is material to the issue.

3. Where the book or paper demanded is only a link in the evidence, the party giving the notice must show its materiality by the prior introduction of other ⚫ testimony.

4. The provision of the statute (Thomp.Dig., 348) which dispenses with proof of, the execution of bonds, notes, &c., unless the same be denied by the plea of the defendant under oath, does not apply to the indorsement or assignment of such instruments.

5. Where the defendant fails to tender a defense to any particular count of the declaration, the plaintiff is entitled to a judgment upon that particular count as for a default; but such judgment must be given by the court-it is not the subject of instruction to the jury.

6. It is a settled principle that none but a party holding the legal title to an instrument can maintain an action upon it in a common law court; and to obtain a recovery upon the same, he must establish such title by competent evidence.

This case was decided at Marianna.

Appeal from Franklin Circuit Court.

The appellant instituted his action of assumpsit by attachment against the appellee on an order or check, of which the following is a copy, viz:

ST. JOSEPH, May 17, 1840. President of the L. W. and St. Joseph Railroad Company will pay to James Black, or order, one hundred and fiftythree dollars, and charge the same to account of

Your ob't serv't,

JOHN D. GRAY.

Sinclair vs. Gray.-Statement of Case.

James Black endorsed the said order to William Hawkins, and the latter endorsed it to the plaintiff Sinclair, as alleged in the declaration, which was in the usual form and which contained the common money counts. On the face of the order was a note of protest "for non-payment 8th October, 1840," by Hez. R. Wood, Notary Public.

The defendant pleaded the statute of limitations, which was withdrawn before the trial; also three additional pleas, in which he alleged, first, that the order or check sued on had never been presented; second, that it had never been protested, and, thirdly, that it had never been transferred or assigned by the drawee James Black to William Hawkins, or by Hawkins to the plaintiff.

At the first trial of the case, a non-suit was taken by the plaintiff, but at the same term leave was granted by the court to reinstate the case.

The record shows that afterwards the following notice was served on the defendant's attorney, viz:

"To John D. Gray, def't, or his att'y, T. J. Eppes, Esq:

"SIR: You will take notice that upon the trial of this cause in said court you will be required to produce the following paper writings, in possession of the defendant, which said writings are pertinent to the issue joined in this case, to-wit: the notice of protest made by Hez. Wood, Notary Public, the notice of non-payment and the notice of presentment, which said notices were served upon the said defendant by the said Hez. Wood, Notary Public, according to law.

D. P. HOLLAND, Pltf's Att'y." The record contains the following answer, made by the defendant to the above notice, viz:

"The said defendant objects to the notice within as calling upon him to prove a negative. Subject to this objection, he answers: First, that he has not in his possession, and never had, any of the papers and writings named and

Sinclair vs. Gray.-Statement of Case.

called for in within notice, and generally answering, he denies the right in law of the plaintiff to demand the same, &c. JOHN D. GRAY,

by T. J. EPPES, Att'y."

The action taken by the plaintiff on the trial and the instructions asked, appear in the following bill of exceptions, contained in the record:

"Be it remembered, that upon the calling of this cause upon the trial docket, the parties by their attorneys announced themselves as ready for the trial thereof, when and before a jury was called, the plaintiff by his attorney moved for judgment upon the ground that the defendant had not produced certain papers which by notice filed and served upon the defendant he was required to produce under the statutes in such case, &c., which motion the court overruled, holding that the statute authorizing such notice would be sufficiently complied with by the production of such papers upon the trial before the jury, and under this ruling the defendant had leave to produce such papers upon the trial when the jury should be empannelled or the opportunity to discharge himself, if he could, upon his answer to the notice. To which ruling of the Court the defendant by his counsel excepted.

"Thereupon a jury were empannelled, and the defendant moved the court for judgment upon the ground, as insisted by him, that the papers required by the notice to be produced by the defendant were pertinent to the issue joined, and that the answer of the defendant to the notice was insufficient and uncertain; which said motion was overruled, and thereupon the defendant by his counsel excepted to such ruling of the court.

"Thereupon the plaintiff produced James Penn, who testified that Hezekiah Wood had been dead some three years; that he died abroad, somewhere about Panama, and identi

Sinclair vs. Gray.-Statement of Case.

fied the memorandum on the face of the draft sued on as the hand writing of the said Wood. Thompson the plaintiff by his counsel offered to prove by the said signature of said Wood, and by parol testimony, that the said Wood was a Notary Public of the Territory of Florida, residing at St. Joseph, in Florida. The Court ruled that the plaintiff must show the commission or appointment of the said Wood as a Notary Public, and that parol testimony was not admissible to prove the same, unless it should be first proven that the superior evidence of his authority to act as a Notary Public had been lost or destroyed. To which ruling of the court the plaintiff by his counsel excepted.

"Thereupon the plaintiff introduced H. D. Darden, a witness, who testified that the writing on the back of the draft sued on (other than the assignment) was in the handwriting of R. J. Moses, who he had seen acting as Secretary and Cashier of Lake Wimico and St. Joseph Railroad Company, but that he did not know that said Moses was the Cashier of said Company. Whereupon the plaintiff offered to prove by parol testimony that the said Moses was the Secretary and Cashier of said Company, and also offered to prove the same by the signature of said Moses to a deed purporting to be signed and sealed by him as Secretary or Cashier of said Company.

"The Court ruled, that the books of the Company must be produced to prove that said Moses was the Secretary or Cashier of said Company, unless the same were proven to be lost or destroyed, so as to let in secondary evidence of the fact; and the Court ruled out the testimony stated above as being offered by the plaintiff. To which ruling the plaintiff by his counsel excepted. Thereupon the plaintiff by his counsel asked the Court to charge the jury as follows, to-wit:

"1st. That it was not necessary for him to prove the assignment of the draft by Gray to Black, of Black to Haw

Sinclair vs. Gray.-Opinion of Court.

kins, or of Hawkins to plaintiff, in order to entitle him to recover in this suit upon the draft.

.

"2d. That inasmuch as there were no pleas to the money

counts in the declaration that the plaintiff was entitled to

recover.

"3d. That the draft sued on was evidence under the count in the declaration describing it as a promissory note.

"Which three several instructions, so asked for by the plaintiff, were refused by the court. To which refusal of the court to give such instructions the plaintiff by his counsel excepted."

The jury returned a verdict for defendant, and plaintiff appealed.

D. P. Holland for appellant.

T. J. Eppes for appellee.

DUPONT, C. J., delivered the opinion of the court.

This was an action of assumpsit, commenced in the Circuit Court of Franklin county, by Sinclair, the appellant, against Gray, the appellee, upon an instrument of writing, as follows, to-wit:

ST. JOSEPH, May 17th, 1840. "President of the L. W. and St. Joseph R. Road Company will please pay to James Black or order one hundred and fifty-three. dollars, and charge the same to acct. of

"Your O. S..

JOHN D. GRAY."

This paper was endorsed by James Black, the payee, to William Hawkins, and by Hawkins to Sinclair, who instituted the suit, as endorsee thereof, and filed his declaration in the usual form. At the first trial of the cause, the plaintiff having failed to make out his case, took a non-suit, with leave to reinstate, which was allowed by the court. The defences to the action are embraced in the following pleas, viz: 1st. Non-presentation of the draft for payment.