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.
*762d. That tlxe draft was not duly protested.
3d. A denial of tlie transfer to the plaintiffs by endorsement.
A plea of tlie statute of limitatioix was also filed and replied to, but the record shows that this plea was withdrawn previous to the trial. It also appears that after the cause had been reinstated, aixd before the last trial, the plaintiff caused to be served upon the defendant’s counsel the following xxotiee, to wit:
“To John D. Gray, defendant, or his attorney, T. J. Eppesj Esq.:
“Sir: Ton will take ixotice that upon the trial of this cause, in said Court, you will be required to produce the following paper writings, in possession of defendant, which said writings are pei’tinent to the issue joined in this case, to wit: the ixotice of protest made by Hez. Wood, notary public, the ixotice of non-payment, and the notice of presentment, which said notice was served upon the said defendant by the said Hez. Wood, ixotary public, according to law.
“ I). P. HOLLAND, Plaintiff’s Attorney.”
The bill of exceptions shows that upon calling the cause for trial, the parties announced themselves ready; whereupon, and before the jwry w&re sworn, the plaintiff, by his attorney, moved for judgment, upon the ground that the defendant had ixot produced the papers called for in the notice. The Court refused to give judgment, holding that the defendant was not bound to respond to the notice until after the jury should have been empanelled and sworn, to which ruling the plaintiff excepted.
The bill of exceptions further shows that after the jury had been cmpannelled and sworn the defendant made the following answer to the notice, viz: “ The 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 *77and writings named and called for in within notice, and generally answering, he denies the right in law of the plaintiff to demand them. JOHN D. GRAY,
“ By T. J. Eppes, Attorney.
Hpon the exhibition of this answer, the attorney for plaintiff again moved for judgment, upon the ground that the answer was insufficient and uncertain. The Court refused to grant the motion, which was excepted to, and this, together with the former ruling, constitutes the first error assigned in this Court.
In order to understand the question involved in this assignment of error, we will set out the section of the statute under which the judgment was claimed by the plaintiff. It is in the following words, viz:
“ The Courts of this State shall have power, on the trial of causes cognizable before them respectively, if it shall be satisfactorily proved that ten days’ notice was previously given to the opposite party, or to his, her or their attorney, to require the party notified as aforesaid to produce boohs and other writings in his, her or their possession, power or custody, which shall contain evidence pertinent to the issue; and if either party shall fail to comply with such order, or to satisfy the Court why the same is not complied with, it shall be lawful for the Court, if the party so refusing be plaintiff, to give judgment for the defendant, as in case of non-suit; and if defendant, to give judgment against him or her by default: Provided, that the party requiring the production of the boohs or papers as aforesaid shall in all cases satisfy the Court of their materiality in the causes therein depending.” Thom. Dig.; 343, sec. 7, § 1.
This statutory provision seems to have been designed only to aid the practice as it stood at common law. Under that practice, where boohs or papers were alleged to be in the custody or control of the opposite party, and were shown to be materia] and admissible as evidence in the cause, it was *78permitted to a party, upon giving reasonable notice to Ms adversary, to require the production of such books or papers, to be used as evidence on the trial. But if the requisition thus made were disregarded by the party so notified, then the party making the requisition was permitted to resort" to secondary evidence, such as copies of the original, or proof of their contents. This was the only advantage gained by the giving of the notice. Our statute goes further, and affixes a positive penalty on the party who refuses or neglects to respond satisfactorily to the requisition. If the recusant party be plaintiff, the penalty which he incurs is judgment of non-suit) and if defendant, a judgment by default is entered against him. This is the only particular in which the practice is altered by this section of the statute. In every other particular the practice in reference to the production of books and papers stands as it did at common law.
The common law practice is thus stated by Mr. Greenleaf, in his Treatise on Evidence: “When the instrument or writing is in the hands or power of the adverse party, there are in general, except in the cases above mentioned, no means at law of compelling him to produce it; but the practice in such cases is to give him or his attorney a regular notice to produce the original, not that on proof of such notice he is compelled to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the party has done all in Ms power to produce the original.” Greenleaf on Evidence, 710, § 560.
It is also laid down as a rule at common law, that before a party will be permitted to go into secondary evidence of tlie contents of the paper called for, he must prove the existence of the original, and upon the most obvious principles of propriety and sound reason he will be required to show the materiality of the evidence sought to be used. This showing is expressly required to be made by the statute re*79lied upon by tbe counsel for tbe plaintiff. In tbe proviso to tbe section, it is provided that “tbe party requiring tbe production of tbe books or papers, as aforesaid, shall in all cases satisfy tbe Court of thaw materiality,” &c.
In view of this essential pre-requisite, a rule bas been adopted at common law with reference to tbe particular point of time in tbe progress of tbe cause at which tbe response to tbe notice to produce may be demanded. It is laid down that “the regular time for calling for the production of papers is not until the party who requires them bas entered upon bis case, until which time tbe other party may refuse to produce them, and no cross-examination as to tlieir contents is usually permitted.” — 1 Green, on Ev., 712, § 563.
If such be tbe rule at common law, “when tbe only benefit to tbe party giving tbe notice is tbe privilege of going into secondary evidence,” we can perceive no good reason why tbe same rule should not prevail in tbe practice under tbe statute, especially when it is brought to mind that tbe penalty visited upon tbe adverse party is tbe infliction of a judgment against him for bis recusancy. "We think, then, that tbe Judge below very properly refused tbe motion which required tbe defendant to respond to tbe notice before tbe jury bad been called or tbe plaintiff bad entered upon bis case.
This disposes of tbe first exception embraced in tbe first error assigned, and we are now brought to tbe consideration of tbe second exception embraced in tbe same assignment, viz: tbe refusal of tbe Judge to give a judgment against tbe defendant after tbe jury bad been empamialled and sworn. At this stage of tbe trial, it appears by tbe bill of exceptions, that tbe defendant responded to tbe notice by tbe answer set forth in tbe statement of tbe case.
This brings us to tbe consideration of tbe materiality of tbe paper demanded by tbe notice. It must be recollected *80that the plaintiff, as endorsee of an inland bill of exchange, was suing the maker, and that the paper demanded to be produced was the notice of protest which was alleged to be in the possession of the defendant. Now, it is very obvious that before this paper could become material to the support of the right of the plaintiff to recover upon the bill, it was necessary that he should have established his legal right to property in the bill. This he had not done at the time when his demand for judgment was made, nor, indeed, did he do so at any time afterwards. Of what avail would it have been to him, even if the defendant had voluntarily acknowledged due and legal notice of the protest ? Before he could avail himself of this acknowledgment as matter of evidence to support his right to a recovery upon the bill, he must have shown his legal right to the same by proper proof of the several endorsements intervening between the payee and himself. This he had not done, nor indeed did he make any effort so to do at any time during the progress of the trial. Without feeling ourselves called on to pronounce upon the sufficiency or insufficiency of the defendant’s response to the notice, we are very confident that at the stage •of the trial at which the judgment was demanded by the plaintiff, he had not laid such a foundation as to make the paper demanded material to the issue before the jury. For these reasons, we think the Judge below was correct in refusing the judgment asked for, and we therefore overrule the second exception contained in the bill of exeptions; and this disposes of the first error embraced in the assignment.
The third and fourth exceptions relate to attempts to prove indirectly the presentation of the bill to the drawee •and a protest for non-payment, but as the conclusions which . we have arrived at upon subsequent exceptions are decisive of the cause, it is unnecessary to examine these further than 'to remark, that of all subjects of evidence there is none to *81which greater strictness is applied than to the proof of notice' of protest.
The next error assigned is as to the refusal of the Court to give to the jury certain instructions which were asked by the plaintiff’s counsel. These instructions are as follows, viz:
“1st. That it was not necessary for him (plaintiff) to prove' the assignment of the draft by Gray to Black, of Black to Hawkins, 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, 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.”
In support of the first instruction asked for, the counsel for the appellant relies upon the statute in relation to suits brought upon “writings, whereby money is promised or secured to be paid,” and the effect of endorsing or assigning such writings. The statute reads as follows, viz:
“It shall not be necessary for any person who sues upon any bond, note, covenant, deed, bill of exchange, or other writing, whereby money is promised or secured to be paid, to prove the execution of such bond, note, covenant, deed, bill of exchange or other writing, unless the same shall lie denied by the defendant under oath.
“2d. The assignment or endorsement of any of the fore-mentioned instruments of writing shall vest the assignee or endorsee thereof with the same rights, powers and capacities as might have been possessed by the assignor or endorser, and the assignee or endorsee may bring suit in Ids own name, nor shall it be necessary for the assignee or endorsee of any instrument assignable by law to set forth in the declaration the consideration upon which such assignment or endorsement was made, nor to prove such consideration, unless *82the same shall be impeached by the defendant under oath.”' Thomp. Dig., 348.
Under the operation of these provisions of the statute it is-insisted by the counsel for the plaintiff, that, being invested “ with the same rights, power and capacities as might liavebeen possessed by the assignor or endorser,” he was not bound to prove the fact of endorsement, inasmuch as the plea denying the endorsement had not been verified by the-oath of the defendant. The idea seems to be that the provision of the statute which dispenses with proof of the execiotion of the instrument sued on, unless denied under oath,’ is also applicable to proof of the endor'sement or assignment of the same. But, for very obvious reasons, we-think that such ought not to be the construction given to this statute. It may be of vital interest to the maker that the holder or assignee should establish, by competent proof,, his legcd title to the instrument, in order that he may be protected from making payment to a -wrong party. Besides,, this statute is in derogation of the common law, and is therefore not entitled to as liberal a construction as such an application of its provisions would call for. And we the more-readily incline to this interpretation of the statute from the seeming limitation which occurs in the last clause of the second paragraph, -when, after providing that the assignee or endorsee m ay bring suit in 1ns own name, it goes on to • say, “ nor shall it be necessary for the assignee 'or endorsee of any instrument assignable by law to set forth in the declaration the consideration upon which such assignment or endorsement was made, nor to prom such consideration, unless the same shall be impeached by the defendant under oath.” In this clause there is nothing said about proving - the fact of endorsement or assignment; it refers exclusively to proving -the consideration upon which the assignment may have been made. And without intending to decide the ex- • tent of the “ rights, powers and capacities” spoken of in the *83first clause of tire paragraph, it may not be out of place to remark that the New here intimated seems to' be strongly fortified by the opinion of Justice Nelson, when this statute was under review in the Supreme Court of the United States, in the case of Bradford et al. vs. Williams.
In delivering the opinion in that case, Justice Nelson says: “ The act just recited provides that the assignee shall be vested with the same rights, powers and capacities as might have been possessed by the obligees, and inasmuch as the bonds were uncollectable at law, in the hands of the obligees, it has been argued that, upon the words of the statute providing for the assignment and suit in the name of the assignee, they must be equally invalid and inoperative, after assignment, in his hands.”
“This argument doubtless would be wrell founded and conclusive against the plaintiff, if the objection to the bonds wras such as went to vitiate and destroy the legal force and effect of their obligation, such as usury, illegality, or the like, which would constitute a valid defense to a suit in any form in which it might be brought. So in respect to any other defense in discharge of the obligation, such as payment, release and the like; for'the assignee takes the bonds subject to every defense of the description mentioned, and can acquire no greater rights by virtue thereof than wdiat belonged at the time to. the obligees. This, we timóle, is what the statute intended, and is all its Imoguage fcmiy imoportsf &c. 4 How. S. C. Repts., 587.
The second instruction prayed for cannot be sustained upon any principle known to the practice of the common law Courts. The instruction asked for and refused was, “ That inasmuch as there v^ere no pleas to the money counts in the declaration, the plaintiff was entitled to recover.”
It is undoubtedly true, that where the defendant fails to tender a defence to any particular coimt of the declaration, in such case the plaintiff" is entitled to a judgment upon that *84particular count as for a default; but such judgment must lie given by the Court, and it is not the subject of instruction to the jury. The jury have no right to pass upon the pleadings. That is the exclusive province of the Court. If the plaintiff desired to avail himself of any benefit growing out of the failure of the defendant to plead to the common counts, he should, prior to submitting his case to the jury, have ashed for his judgment for want of a plea, and for the award of a writ of enquiry, inasmuch as the common counts always proceeds for an unliquidated amount. This is the well established practice of the Courts, and we think that the Judge below very properly refused to give the instruction.
The third instruction asked, and refused, was, “That the draft sued on was evidence under the count in the declaration describing it as a promissory note.” Without feeling ourselves called upon to determine whether the instrument sued on was-in legal contemplation a bill of exchange; or a promissory note, we are perfectly satisfied that, under the evidence adduced at the trial, the Court acted correctly in refusing the instruction. It is a settled principle, that none but a party holding the legal title to an instrument can maintain an action upon it- in the common law Courts, and that, to obtain a recovery upon the same, ho must establish that title on the trial by competent-evidence.1 This elementary principle, it is thought by the counsel for the appellant, has been totally abrogated, or, at least, so far modified by the statute as to dispense with the proof of the fact of assignment; but, as before stated, such is not the opinion of this Court. Now, to determine the propriety of the instruction prayed for, it is only necessary to advert to the position of the case at the time that the instruction was asked. The action was brought upon an order drawn by the defendant John D, Gray on the L. W. & St. Joseph R. R. Co., and payable to James I Hack or order. The paper purports to have been endorsed by Black, the payee, to William Hawkins, and by *85him lo Sinclair, tlio. plaintiff, who instituted his suit as endorsee thereof. At the trial, there was not even an attempt made to prove these several endorsements, the proof of which fact was essential to establish the legal title of the plaintiff to the instrument. Under those circumstances, it would have been a great error in the Judge below even to have permitted the instrument to be exhibited to the jury as evidence in the case, and much graver would have been the error had he given the instruction asked.
It may not be improper, in this connection, to remark,, that until the recent rules adopted by the English Courts, (and which have been closely followed for the regulation of the practice in our common law Courts,) the plea of nonassumpsit put in issue the endorsement as well as the making of the instrument sued on. But, under the operation of these rules, that plea is inadmissible in actions upon bills of exchange and promissory notes, and the defendant must now resort to a special plea in denial, if he wishes to put the plaintiff to the proof of the particular fact.
The points presented in this case being matters which frequently occur in practice, we have been induced to go more fully into the discussion than the amount in controversy might seem to warrant or justify.
It is ordered that the judgment of the Circuit Court be affirmed with costs.