#### Bacon vs. Bicknell and another.

In an action on a promissory note, by tbe payee, where the defendant admits the making of the note, and alleges a failure of consideration as the only defense, the court should not nonsuit the plaintiff because it appears that the note is not in court at the time of the trial, but is in the hands of the plaintiff’s attorney in another county.

*556The plaintiff may properly be required, in such case, to produce the note and cancel it before judgment is giren in his favor.

APPEAL from tbe Circuit Court for *Jefferson*County.

The cag0 gtate(j jn 0pú¿0n 0f tbe court.

*Enos &*Hall, for appellant.

*H. iS. Murphy,*for respondents.

April 10.

*By the*(hurt,

Cole, X

Tbis was an action upon a promissory note, made and delivered by tbe respondents to tbe appellant. It was alleged in tbe complaint that tbe appellant was tbe lawful owner and bolder of tbe note, and that no part of tbe principal sum bad been paid. Tbe respondents admitted tbe making and delivery of tbe note as was alleged in tbe complaint, and alleged in substance that tbe consideration of tbe note bad failed.

On tbe trial, tbe counsel for tbe appellant, to maintain tbe issue on bis part, read to tbe court and jury tbe pleadings in tbe action, and called bis client as a witness, wbo testified that be was tbe owner and bolder of tbe note set forth in tbe complaint, at tbe time tbe action was commenced, and was then tbe bolder of it; that there was due upon it tbe sum mentioned in tbe complaint; but that tbe note was then in tbe bands of Mr. Ticbenor, bis attorney, in Wau-kesha, and was not in court. Thereupon resting, tbe counsel for tbe respondent moved for a nonsuit, which was granted. Tbe simple question is, was tbe nonsuit properly granted under tbe circumstances? We think not.

Tbe making and delivery of tbe note was admitted in tbe answer, and tbe only defect in tbe appellant’s case was that he did not happen to have tbe note *then*in court, although it appeared be was tbe owner of it, and that it was in possession of bis lawyer in an adjoining county. It seems to us that tbe fact of tbe note not then being in court was not a sufficient reason for granting the nonsuit. Tbe appellant might properly have been required to produce tbe note and cancel it before judgment, so as to have indemnified tbe respondents against any claim on tbe note in future. The note bad been long past due, and there was but little danger of its coming into tbe bands of any party, by tbe fraud or negli*557gence of tbe appellant, wbo could' give tbe makers any trouble upon it. But still there was no difficulty in tbe pellant’s producing tbe note, and filing it witb tbe records of tbe court, before judgment was given in bis favor upon it It seems to us that tbis was all that was necessary for tbe protection of all parties. There was1 no doubt about tbe existence of tbe note; no dispute as to its terms and conditions; and its absence was satisfactorily accounted for. Tbe cause of action bad been established by, the pleadings and evidence, as fully as it could have been ;by tbe note itself. But as a measure of safety for tbe makers, tbe appellant might have been required to produce tbe note and cancel it before judgment. Tbis is all that could have been requisite or necessary to protect them against any possible contingency.

We think, therefore, that tbe nonsuit should be set aside, and a new trial ordered.