Kingman & another v. Tirrell. afterwards produce the paper in evidence, either to contradict such secondary evidence, or in support of his own case. Doe v. Cockell, 6 C. & P. 525, 527. Doe v. Hodgson, 12 Ad. & El. 135. 1 Greenl. Ev. (10th ed.) § 560, n. 3. And the rule seems to be a just and reasonable one. It should not be permitted to a party to compel his adversary to avail himself of imperfect means of establishing a fact, the best evidence of which he chooses to prevent him from using; and then to avail himself of the proof which makes all other evidence useless. Any other rule would make it for the interest of a party in all cases to withhold important documents, with the certain reliance that he could in no event be prejudiced, and with a chance of obtaining an unfair advantage. For if the secondary evidence should prove the contents of the paper with complete exactness, the case would stand as well as if it had been produced. If it tended to show something more unfavorable to the other party than the exact truth would have done, the subsequent production of the paper itself would control and do away with the effect of it. And if the evidence fell short of establishing all which the paper contained adverse to the interests of the party who had it in his possession, he could allow the jury to be misled, and gain an advantage from evidence which he knew to be untrue. But though the admission of the note in evidence for the defendant, after he had been notified by the plaintiffs to produce it, and had refused to do so, was irregular, it gives the plaintiffs no just ground of exception, unless it appears that they were rejudiced by it. Burghardt v. Van Deusen, 4 Allen, 374. Hackett v. King, 8 Allen, 144. The purpose of granting a new trial is not to obtain mere theoretical accuracy, but to secure substantial justice. And on examining the case carefully, we do not find that the plaintiffs were injured by the production of the note. They complain that they were obliged to call an adverse witness; but that was because the note was withheld, not because it was afterward shown to the jury. The plaintiffs wished to prove that payments were made upon the note within six months of the insolvency of the promisor; and to do this, Kingman & another v. Tirrell. they wished to use the indorsements upon the note. The defendant had previously given a copy of the note, and set forth the indorsements upon it truly, in his answer. The note, when produced, tended to establish the fact which the plaintiffs sought to establish. It was better evidence for them than the evidence of their witness, and its production was a benefit rather than an injury. 2. That the defendant was not precluded from showing that the indorsements upon the note were not correct, because he had used it in evidence, is too plain to require the citation of authorities. The indorsement upon a note of payments of money is merely a receipt, and open to explanation or contradiction by parol. 3. The exception taken to the instructions given to the jury cannot be sustained. The failure of Poole to pay the debt due to the defendant would not necessarily, as a matter of law, constitute insolvency, or be notice to the defendant of insolvency; although it would be evidence tending to show it. And the instruction that the plaintiffs, in order to avoid the payments made upon the note, and recover them from the defendant, must not only show that they were made when the debtor was insolvent or in contemplation of insolvency, and when the defendant had reasonable cause to believe it, but also that the defendant had reasonable cause to believe that the debtor intended a preference, although not true as an abstract statement of the law, was correct as applied to the evidence in the case. The statute provides that, to avoid such payments, the defendant must have had reasonable cause to believe that they were made in fraud of the insolvent law, or in violation of its provisions. Gen. Sts. c. 118, §§ 89, 91. But the only violation of the provisions of the insolvent law which the plaintiffs charged or attempted to prove, or of which there was any evidence, was an intention to prefer the defendant. There was, therefore, no substantial error in directing the attention of the jury exclusively to that. Exceptions overruled. Lovell v. Nelson. LEANDER LOVELL vs. WILLIAM H. NELSON. A survivor of two joint debtors, who pays a joint debt after the expiration of the time when the creditor could have enforced it against the administrator of the estate of the deceased, does not thereby entitle himself to maintain a claim for contribution from such admin. istrator, or to avail himself thereof in set-off, in an action brought against him by such administrator. If a defendant pleads in set-off, the burden of proof is upon him to show that his claim filed in set-off is due from the plaintiff in the same right with the cause of action declared on in the writ; and if the plaintiff describes himself in the writ as administrator of the estate of a deceased person, and declares upon a promissory note signed by only one person, and running to him as administrator of that estate, this will not be sufficient to afford a presumption that his claim is in his representative capacity. CONTRACT brought by the administrator of the estate of Alonzo Scudder against the administrator of the estate of Richard W. Holmes, upon a promissory note signed by said Holmes, dated October 3d 1861, for $709.26, payable on demand with interest, to " Leander Lovell, administrator on the estate of Alonzo Scudder." The writ was dated January 23d 1864. The defendant filed a declaration in set-off, claiming to be allowed for a balance found due from Scudder upon his books, at his death, to Holmes, for one half of certain sums paid by him within one year past on account of debts for which Scudder & Holmes were jointly liable; and for one half of the amount paid by him in December 1863 upon a bond to the Old Colony Insurance Company, dated in July 1845, and signed by Scudder & Holmes. The plaintiff replied, amongst other things, that these claims were barred by the statute of limitations. The case was submitted, in the superior court, upon the report of an auditor, who found that Scudder died in April 1853, having before that time been in partnership with Holmes, and the plaintiff was appointed administrator of Scudder's estate on the 8th of August in that year; and that Holmes died in February 1862, and the defendant was duly appointed administrator of his estate. Certain other facts were found, which are sufficiently stated in the opinion. Judgment was rendered in the superior court for the plaintiff, and the defendant appealed to this court. Lovell v. Nelson. C. G. Davis, for the defendant. E. Ames, for the plaintiff. BIGELOW, C. J. It seems to us that there are two decisive answers to the defendant's claim in set-off. The first is the statute of limitations. Assuming that the note declared on can be properly deemed to belong to the estate of the plaintiff's intestate, and so to be due in the same right with the claims filed in set-off, nevertheless the latter are barred by the lapse of time. The plaintiff was appointed administrator on the 8th day of August 1853, and filed his bond on that day. He also gave due notice of his appointment in compliance with the order of the probate court, according to the provisions of Rev. Sts. c. 66, § 1, which were then in force. By section third of the same chapter it was provided that no administrator, after having given notice of his appointment as required by law, should be held to answer to the suit of any creditor of the deceased, unless it was commenced within four years from the time when he gave bond as administrator. By Gen. Sts. c. 97, § 5, this limitation is reduced to two years. Two of the items of set-off are claims arising out of the partnership dealings and contracts which existed between the plaintiff's intestate and the defendant's intestate, being debts of the firm paid by the latter after the decease of the former. These were clearly barred, and could not have been enforced by the original creditors of the firm as against the estate in the hands of the plaintiff as administrator at the time they were paid by the defendant. The latter by such payment did not acquire any new cause of action against the plaintiff's estate to which the statute bar would not apply. Any balance which might have been due to the defendant's intestate on a final settlement of the partnership concerns between him and the plaintiff's intestate was barred after the lapse of four years from the appointment of the latter as administrator, and could not be revived by a payment of a partnership debt by a surviving copartner. The other item of set-off is a payment of money in satisfac tion of a bond on which the plaintiff's intestate was liable jointly with the defendant's intestate. It is true that the payment was Lovell v. Nelson. made after the death of the plaintiff's intestate, and within two years from the time when the plaintiff's action was commenced. But this does not create any new cause of action, or render the plaintiff as administrator liable after the expiration of the time limited for bringing actions against him. If no cause of action accrued on which the defendant could be held liable as administrator within four years after his appointment, he cannot afterwards be chargeable on a cause of action subsequently accruing against the estate of his intestate. The statute bar is absolute, except when new assets come to the possession of an administrator after the period of limitation has expired, and in cases in which the judge of probate has required him to retain assets to satisfy claims of creditors whose cause of action did not accrue within such period. Holden v. Fletcher, 6 Cush. 235. But It is suggested by the defendant's counsel that the statute of limitations in favor of executors and administrators is only applicable to actions brought by the creditors of deceased persons, and cannot be pleaded in answer to claims filed in set-off. this suggestion is fully met by the provision in Gen. Sts. c. 130, § 18, which enacts that in cases of set-off, if any limitation of actions is alleged by way of defence to the defendant's demand, the limitation shall be applied in the same manner as it would have been to an action brought on the same demand if it had been commenced at the time when the plaintiff's action was commenced. The present suit was commenced long after all the claims filed in set-off against the estate of the plaintiff's intestate were barred by lapse of time. Another and complete answer to the claims filed in set-off is, that none of them appear to be due in the same right with the note declared on. The burden of proof is on the defendant to show this. But the evidence fails to establish the fact. It is true that the note is made payable to the plaintiff as administrator, and he is so described in the writ. But this circumstance is by no means decisive. It may nevertheless be the property of the plaintiff in his own right, and the money may be due to him personally, and not in his representative capacity. To be liable to the defendant's set-off, the note in suit must be shown |