#### JOHN D. GRAHAM *vs.*H. C. HAMILTON AND ANOTHER.

June 1843

A motion to nonsuit a plaintiff for *not producing books*or papers, according to the provisions of the Rev. Stat. ch. 31, s. 86, cannot he made, unless a previous order of the court has been obtained for the production of such books or papers.

Where it appears there was a written contract shewing the nature of the title to certain personal property in dispute, the party wishing to avail himself of that title must produce the. written contract, or account satisfactorily for its non-production.

Appeal from theSuperior Court of Law of Lincoln county, at Spring Term, 1843, his Honor Judge Dick presiding.

This was an action of Trover, brought to recover the value of a quantity of castings, alleged to have been converted by the defendants to their own use. After the jury were charged with the cause, the defendant’s counsel produced a notice, which had been served on the plaintiff, in the following words, to-wit: “ Mr. John D. Graham, You are hereby notified to produce on the trial of the suit in Lincoln Superior Court, by appeal from the County Court,

June Term, 1841, in th.e case where you are plaintiff and H. C. Hamilton and John Brinkley defendants to produce the original books, in which the castings, the subject matter of dispute, are charged to Owen Clark.

(Signed) H. C. HAMILTON,

JOHN BRINKLEY.”

And enquired of the plaintiff’s counsel whether they- would produce the plaintiff’s books ? The plaintiff’s counsel refused to produce the books. Whereupon the defendant’s counsel movéd the court that the plaintiff be nonsuited— *382This motion was refused by the Court. The plaintiff then introduced one Owen Clark asa witness, and proposed to prove by him that he received the castings as the agent of t¡ie plaintiff, for the purpose of taking them to South Carolina to sell. This evidence was objected to by the defendants, who alleged there was a written contract between the plaintiff and the witness Clark about the said castings, and that the plaintiff was estopped from giving any parol evidence of the contract between him and Clark. The defendants then produced a letter, of which the following is a copy, from the plaintiff to the defendant Hamilton :

“ Vesuvius Furnace, N. C. Nov. 16th, 1839.

Mr. Hamilton — Mr. Owen Clark has just informed me the load of castings he started with a few days since was stopped by you. The castings I sent to pay a debt I am bound to Col. John Hoke, $118 and interest, for security to Owen Clark. The money I have promised, without fail, again Lincoln Court. Clark further owes me and my father’s estate $120 more. Finding I would have to pay the debt to Col. Hoke, and could not get further indulgence than Lincoln Court, I directed Clark to come and get the' castings you stopped, on my account, and pay the money over to Hoke as promised. I have a written agreement with Clark as to his property that was sold and the castings I sent with him. Respectfully yours, ,&c.

JNO. D. GRAHAM.”

The court overruled this objection of the defendants’.' — . Owen Clark was then examined, and swore that he received the castings, as the property of the plaintiff, to take to ¡South Carolina and make sale of them, and return the proceeds to the plaintiff. He further proved, that, on his way to South Carolina, the defendants levied on the castings, took them out of his (witness’) possession, and converted them to their own use. The defendants contended that the castings were the property of the witness Clark — that the defendant, Hamilton, was a creditor of the said Clark, and that he levied ou and sold the castings by virtue of an exe-*383culion against Clark, which execution was produced in court. The other defendant was the officer who levied the execution. The defendants introduced several witnesses to establish the fact that the property in the castings belonged to Clark. The'court instructed the jury, that, ii they believed Clark, the plain tiff was entitled to recover the value of the castings. Whether they would believe him or not under all the circumstances, was for them to decide. The jury found a verdict for the plaintiff, and a new trial being refused and judgment rendered pursuant to the verdict, the defendant appealed.

*Osborne*and *Boyden*for the plaintiff.

*Alexander*and *Hoke*for the defendant.

Daniel, J.

First; the defendants moved to nonsuit the plaintiff, because he did not produce his books in court on the trial, pursuant to the notice given him. Without now deciding whether the act of Assembly, Rev. Stat. ch. 31, s. S6, extends to books of the description mentioned in this notice, we nevertheless think that the plaintiff should not have been nonsuited. Before the defendants could legally move for a nonsuit, he should, at some previous stage of the proceedings, have obtained an *order*of the court for the plaintiff to produce the books on the trial; no such order had ever been obtained. The act says, that, if the plaintiff shall fail to comply with such “ order” to produce the books, he may be nonsuited.

But on the second question, it seems to us the judge erred. The goods were in the possession of Clark, and *prima facie*he was the legal owner. The plaintiff had afterwards written a letter to Hamilton claiming the property, in which letter he says, “ I have a written agreement with Clark as to his property that was sold, *and the castings 1 sent with him"*It therefore appears by the plaintiff’s own acknowl-edgement, according to the grammatical, and, as we think, ob*384vious meaning of the letter, that he had an agreement in writing with Clark, as to the castings sent with him. The title to this property was to decide the action ; the written agreement was better evidence of the title than the parol testimony of Clark, and the plaintiff, we think, should have been compelled to produce it, unless he had shewn by satisfactory evidence that the written agreement did not extend thereto, or was not in existence or in his power.

Per Curiam. Yerdict set aside and new trial awarded.