Upon the questions arising on the record, 1 shall suppress the expression of an opinion, until it can be given with legal effect.
In respect of the matter presented by the motion, the court adjudged incorrectly, by finding a certain sum to be due, without the production of the notes. In this point William Wright has an interest; for if the debt is paid, or diminished, thus far the estate is relieved of an incumbrance. The best evidence the nature of the case admits of, is the notes; and secondary evidence to prove their contents is incompetent, until a notice for the production of them has been duly served.:— 2 Term Rep. 201. 2 Day 328. The defendant, Wright, ought not to be exposed to the uncertainty of parol testimony, until, after proper efforts, it becomes apparent that the written evidence cannot be obtained. The condition of the deed does not supersede the necessity for the production of the notes. They may be invalidated by interlinations, or indorsements on them may show that they have been paid. When a defendant permits judgment to pass by default, he admits the cause of action ; but if the action is on note, or bill of exchange, it must be produced, on executing the writ of enquiry, that it may be seen whether any part of it has been paid. Bevis v. Lindsell, 2 Stra. 1149. Anon. 3 Wils. 155. Thelluson v. Fletcher, Doug. 301. Green v. Hearne, 3 Term Rep. 301. The superi- or court, in relation to the sum due, adjudged without evidence ; and for this reason, I would advise a new trial.
New trial to be granted.