*44on rehearing.
Thomson, P. J.,delivered the opinion of the court.
We see no reason to modify the language of the foregoing opinion in respect to any of the propositions it discusses. But it is now brought to our attention that an important point made in the supplemental brief for the appellant was overlooked ; and it is urged that its due consideration will necessitate a reversal of the judgment. It does not appear from the record that the original acceptance upon which the suit was brought was produced at the trial, and no reason was given why it should not be produced. It is conceded in argument that there was in fact no production of the paper; and it is contended for the appellant that such production was necessary to show that the appellee was still the holder of the bill, and to protect the acceptor against the claim of some possible Iona fide assignee in possession. In a letter from the plaintiff to the defendant, concerning other matters of business, written after the draft had been accepted, the following occurs: “ On account of heavy withdrawals of whiskey, and the money required to run my distillery, I was compelled to discount your paper given for a previous bill.” This letter was introduced by the plaintiff as an answer to a letter in evidence, written a short time previously by the defendant to the plaintiff, upon the theory, apparently, that the two taken together had some bearing on the issue made upon the affidavit for attachment. If the paper mentioned in the plaintiff’s letter, was the acceptance upon which the suit was brought, — a qxiestion upon which the record throws no light, —then at the time the letter was written, the plaintiff was not the owner of the draft; and as there was no proof of re-transfer to the plaintiff, upon the presumption that a state of things once shown to exist, continues to exist, the plaintiff was not the owner of the paper when the suit was brought, and trial had.
On the other side, however, it is argued that the owner*45ship of the draft hy the appellant was admitted by the pleadings. We cannot assent to this. The complaint alleged the drawing of the bill by the plaintiff, its acceptance by the defendant, and its nonpayment. The answer admitted that the bill was drawn and accepted as alleged, and that it was not paid. The complaint is a sufficient complaint in an action by payee against acceptor, but its allegations might be true, and the title to the bill be outside of the payee. The ownership of the acceptance was not involved in either the allegations or the admissions.
Certainly, upon payment of an acceptance, the acceptor is entitled to possession of the bill as his evidence that it was paid. And judgment upon it should not be entered against him until it is delivered up and filed in the cause, so that it may not afterwards rise up against him in the hands of some third person claiming to be the bona fide holder. Sebree v. Dorr, 9 Wheat. 558; Hansard v. Robinson, 7 B. & C. 50; Matossy v. Frosh, 9 Tex. 610.
But the question upon the nonproduction of the bill is made for the first time here, and it now appears only in the argument. It was not suggested at the trial. A motion for a new trial was made, in which it was not alluded to ; and it is not presented to us by any assignment of error. Counsel for the appellee say that at the time of the trial it was, and ever since has been, in their possession, ready for delivery to the appellant; and that the latter has all along known that they had it, and were ready to deliver it. This statement is not disputed on behalf of the appellant. And from the fact that no point has ever been made upon its nonproduction until now, it would seem that it was understood by all parties, that the paper referred to in the letter was not the acceptance in suit, or that if it was, it had been retransferred to the plaintiff; and that there was no reason why it should not be forthcoming at the trial.
But however all this may be, and notwithstanding the defendant did not insist upon his right below, he is entitled for his own protection to the surrender of his acceptance. *46But under the circumstances, if tire paper be now produced and delivered, we do not feel warranted in reversing the judgment and putting the parties to the expense of another trial. If within ten days from this date the appellee shall deliver the bill of exchange sued on to the clerk of this court, to be by him canceled and hied with the papers in the cause, our affirmance of the judgment will stand; otherwise a judgment of reversal will be entered.
Wilson, J., not sitting.