Diven v. Spicer

By the

Court, Ewing, C. J.

This was a suit brought in February, 1859, in the District Court of the Second Judicial District of the Territory of Kansas, sitting in Douglas county, on a promissory note set out in the petition, in the words and figures following:

“ Pénn Yan, Sept. 25, 1855.
“ Three months after date, we jointly and severally promise to pay the president, directors and company of the Yates County Bank, one thousand dollars, at the office of discount and deposit, in Penn Yan, for value received.
“ $1,000. . John Spicer.”

The petitien states facts sufficient to entitle the plaintiff, as receiver of the Yates County Bank, to have judgment on the note, including'a statement that defendant executed the note *106described, and delivered it to the bank, for value, and that plaintiff,, as the duly appointed receiver of the bank, then held it for collection.

The defendant, answering, pleaded—

First. The statutes of limitations, approved February 10th, 1859.

Second. That the note sued on was made by defendant and delivered to said Yates County Bank in payment for twenty shares of stock in the bank ; and that afterwards, on the same day, the defendant surrendered the shares of stock, “ the bank agreeing to receive the said twenty shares of capital stock and to cancel' and deliver up to the said defendant the said, promissory note then held by said Yates County Bank as aforesaid.”

Plaintiff filed a demurrer to the answer, which was sustained as to the plea of the statute of limitations, and overruled as to the others.

A jury was then empannelled and sworn, and no testimony being offered by plaintiff, a witness was sworn on behalf of defendant; but, before any testimony was given, defendant demanded production of the note, and plaintiff failed to produce it. Whereupon, the Court, on motion, entered judgment of non suit, and plaintiff excepted, and filed his petition in error here'.

If the demand to produce the note be treated as a demand for inspection, under section three hundred and seventy of the Code, it is bad as to time and manner. And if it were good, the result of the failure to produce the note would only be that the Court might exclude it, if wanted in evidence by the plaintiff; or, in case the defendant wanted to introduce it, direct the jury to presume it such as he might, by affidavit, allege it to be.

Counsel for defendant in error says that the answer denied the existence of the note, and therefore plaintiff could not recover without producing it, or amending his petition setting *107out the loss. The only allegation in the answer approaching a denial of the existence of the note is that “the Yates County Bank agreed to receive the said twenty shares of capital stock and to cancel and deliver up to said defendant the said promissory note then held by; said Y ates County Bank as aforesaid.” Clearly this is no allegation that the note was cancelled or destroyed, and no denial of the allegation that plaintiff then held it.

The case of Read vs. Gamble, (10 Ad. and B., 597,) is exactly in point. To an action on a check the defendant pleaded that it was given for money won at an unlawful game of dice: Issue thereon: The defendant did not give notice to produce the check. Held, that on this issue, the plaintiff was not bound to produce it, either as part of his own case, or when called upon at the trial, as part-of defendant’s; and the case of Sheave vs. Breman, (10 Ad. and Ellis, 593,) where it was held that “it is not necessary to produce the bill at trial unless some issue be joined which renders it requisite, for otherwise the plea admits the bill, and where that is the ease there is no necessity to prove it.”

In the case before us the existence of the note was not in issue. It was alleged in the petition expressly, and by necessary implication; and not being denied, was to be taken as true. The only issues joined were on the allegations in the answer, of payment in bank shares, and of illegal consideration. The defendant had the affirmative of these issues, and had to offer the first proof. The Court, therefore, erred in giving judgment against plaintiff for failure to produce the note.

Ordered by the Court, that the judgment be reversed, and the cause remanded to the Distticfi Court for further proceedings therein.

Judgment here against defendant in error for costs and execution awarded thereon.