Wyman v. Rae ( 1841 )

Archer, J.,

delivered the opinion of the court.

The taking of a note for goods sold and delivered, certain» ly does not extinguish the original cause of action. An action on the common counts, may be sustained by proof of thé sale and delivery of the goods, although a note may have been given therefors 17 Seargt. and Low. 152. If however a note has been given, in such case the production of the note is generally required, for the security of the defendant, and not from any rule of evidence which would prevent the introduction of evidence of indebtedness, without the production of the note. It was clearly competent we think, for the plaintiff to produce other and further evidence of indebtednessj without producing the notes taken for the goods.

If it were important for the defendant to show, that the credit given on the notes had not expired, the burthen of such proof was upon him. He should have given notice to have them produced, and if not produced, proved their contents.

There is no evidence in this bill of exceptions to show the notes were on time, and the law certainly makes no such inference. We therefore think the court erred in the opinion by them expressed in the first bill of exceptions.

The evidence in the second bill of exceptions was offered to account for the non-production of the note; the court rejected the evidence. If the plaintiff, as we have seen, was not bound to produce the note, he was cartainly under no obligation to account for its non-production, and the testimony offered with such view, and such view only, was useless, unnecessary and inadmissible. We concur with the court in the opinion by them expressed in the second bill of exceptions.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.