Morrow v. . Allman

65 N.C. 508

• Court: Supreme Court of North Carolina
• Decided: June 5, 1871
• Status: Published

Opinion

¡Ee-ade, J.

The only question necessary to consider in this . ease'is, whether iin an action on a negotiable instrument, the -execution df which is not denied by the answer, it is necessary to produce the instrument on trial, or account for its loss ?

We think it is-necessary to produce and file the instrument, ¡in this case, a bond. If is the practice to do it, and there is ¡-much propriety in it. Being negotiable, how can it otherwise be known whether it has not been transferred ? Or if kept back it may be -subsequently transferred, and although such subsequent transfer -would not subject the maker to its payment, yet he ought not to be kept in jeopardy of another suit. _And furthermore, .there .may be, as was alleged in this case, payments endorsed upon the bond, of which the defendant ought to have the benefit.

It was competent on the trial to require the plaintiff or his counsel to produce the paper, the same being admitted to be in their possession and in Court; and in a proper case they might have been put under a rule. The usual way, however, is to notify the plaintiff to produce the paper; and upon his failure to do so, having the power, to non-suit him. Rev. Code, chap. 31, sec. 82.

There is error.

Per Curiam. Venire de novo.