#### JOHN CASEY v. JESSE WILLIAMS.

A note sued on, as being guaranteed, ought to be present on the trial, unless its absence is legally accounted for; and the fact, that it had been sued on in the court of another State, forms no exception to the rule, unless it appeared that, according to the course of such court, it could not have been, withdrawn from the archives of the court.

It was Held further, that if such note could have been withdrawn and .produced on the trial, its nonproduction was fatal to a recovery.

Assumpsit, tried before Bailey, J., at the Special Term, July, 1859, of Buncombe Superior Court.

The plaintiff declared in assumpsit upon a contract of guaranty.

The defendant passed a note to the plaintiff, executed by one Kansom Thompson, payable to John M. Kinsey, and endorsed by the latter to Samuel McCarson, and by him endorsed to the defendant, Jesse Williams. The defendant agreed if the note was not good, and the plaintiff could not collect it, he would make it good, and pay the plaintiff the amount thereof. The note was not produced on the trial, but in lieu *579thereof, the plaintiff offered the record of a trial in a court in Tennessee, to show that the said note had been sued upon in that State, and the plaintiff’s counsel insisted that this was the best evidence of the note. The Court ruled that the transcript was not evidence of itself of the existence of the note,, and a nonsuit was ordered. The plaintiff appealed.

N. W. Woodfin, for the plaintiff.

J. W. Woodfin, for the defendant.

Battle, J.

¥e are clearly of opinion that the note which was guaranteed by the defendant to the plaintiff, ought to have been produced on the trial, or its absence properly accounted for. That is admitted to be the general rule', and there is no principle upon which this case can be taken out of it. The record of the suit in Tennessee is no evidence of the' existence and contents of the note as against the present defendant, because he was no party to it. But it is contended that the note is filed among the records of the suit in Tennessee, and that the plaintiff will be without remedy, unless he can prove the note by the production of the transcript of the record of that suit. The obvious reply is, that it does not appear that he could not obtain the note itself under an order of the Court, allowing him to withdraw it upon leaving a copy, according to a well established practice in this State. If such a course were shown to be against the practice of the courts in Tennessee, then our courts would admit secondary evidence of the making and contents of the note. The deposition of the clerk of the court in Tennessee, among the records of which the note is filed, might be taken, and he could annex to it a copy of the note, which together with other testimony to identify it, &c., would prove all that would be established by the production of the note itself. Eorthe want of such proof, to account for the absence of the uote, and to show its existence and contents, the judgment of nonsuit was proper, and must be affirmed.

Pee Oueiam, Judgment affirmed.