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, (a)
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.]