CHILTON, J.
1. Although the judgment entry does not show that the plaintiff took the non-suit in consequence of the ruling of the court against him, in the exclusion of the copy of the trust deed, yet we think it very clear, that under the act of 1846, (see pam. acts ’45-6, p. 35,) it is not indispensable that the fact should appear in the bill of exceptions. Here, it is sufficiently made to appear by the bill of exceptions, which, after reciting the rejection of evidence material to the plaintiff’s recovery, states, that “ thereupon the plaintiff took a non-suit.” The motion to dismiss the writ of error must therefore be overruled.
2. As to the insufficiency of the notice, being dated the day previous to the date of the issuance of the writ of error, we must intend this was a clerical misprision, and as the writ of error is amendable, we must regard it as amended.
3. Turning to the points presented by the assignment of errors, we think it clear, that the decision of the county court overruling the demurrer to the plea of set-off, pleaded as it is, merely by name, cannot be sustained. The plaintiff had a right to have the plea formally, or rather substantially pleaded, if he insisted upon it, and it is peculiarly proper, in cases of this sort, when the party desires to be advised of the special matter relied upon, that it should be substantially averred. There was no consent on the part of the plaintiff to receive the plea as it was pleaded, and it was clearly errone*823ous to hold it good. See Strange v. Powell, at the present term, and authorities on the brief of plaintiff’s counsel.
4. We regard the predicate which was laid for the introduction of the secondary evidence of the deed from John M. Walke, as entirely sufficient. The deed was shown at one time, (and the last time it was seen by the witness,) to have been in the custody of the defendant, who was the solicitor of the party beneficially interested under it. He was called on for it some time before the commencement of this suit, and replied that he did not have it, but thought it was in the register’s office. The register’s office was searched, and it could not there be found, and other efforts were made to procure it, but proved ineffectual. Under such circumstances, it was not incumbent on the plaintiff to have notified the defendant to produce the deed; but he might rest upon his statement, that he did not have it, and having searched for it diligently, where it was supposed it would probably be found, the secondary evidence was legitimate. No presumption can arise in this case, that the original deed is improperly withheld, and in such cases, the rule does not exact such a rigid search and examination, as when a contrary presumption may be indulged. Jones v. Scott, 2 Ala. Rep. 61. The defendant, having been the solicitor of the party in the management of business connected with the deed, or requiring him to have it, is to be presumed acquainted with its contents, and if the copy tendered was incorrect, and he was mistaken in informing the agent of the beneficial plaintiff, that the deed was not in his possession, he should have taken some steps to have procured it. At all events, the plaintiff cannot be prejudiced by his mistake, if there was one, as to the possibility of finding the deed in his possession, upon search being made. He dispensed with the search in his office, by the declaration, and search was duly made, where it was supposed the instrument was. See Sturdevant v. Gaines, 5 Ala. Rep. 439; Sledge’s adm’r v. Clopton, 6 Ala. 589" court="Ala." date_filed="1844-01-15" href="https://app.midpage.ai/document/sledges-admrs-v-clopton-6502253?utm_source=webapp" opinion_id="6502253">6 Ala. Rep. 589, 604; Bright and Ledyard v. Young and Winslett, at the last term.
For these errors, the judgment must be reversed, and the cause remanded.