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highway in the mode of its use as the street itself. be responsible for the safe keeping and return of The difference in the manner of their use does not the carriages. Held, that the principal was not render one public more than the other. They are bound. The court said: “It is said in the brief of both free to be properly used and enjoyed by the plaintiffs' counsel that it is a matter of common entire public, and are constructed alike for their knowledge that no well regulated hotel could do

That the Legislature may afford the neces business and accommodate the public without maksary power of constructing such improvements, so ing some such arrangement as this, and that it is a essentially necessary to the comfort and conven well-known occurrence for a guest who wishes a ience of the community, is apparent; but under our horse and carriage to apply at the desk, and an orconstitution we think the mode authorized in this der is sent to the livery stable keeper, who furcase is not sanctioned.

Even the police nishes the equipment to a man he does not see, and power, comprehensive as it is, has some limitations. so has no means of ascertaining his responsibility. It cannot be held to sanction the taking of private Ie therefore says that a contract like the one found property for public use without making just com- by the court is a natural and necessary one for the pensation therefor, however essential this might be, protection of the liveryman. Suppose this be adfor the time, to the public health, safety, etc. And mitted, and it be for the purposes of this argument upon like principle, a purely public burden cannot assumed that this is such a familiar transaction be laid upon a private individual, except as author that it rests within the cognizance of every one ized in cases to exercise the right of eminent do without proof of the fact, yet I do not think it main, or by virtue of proper proceedings to en makes in favor of the plaintiff's case. It only force special assessments or special taxation. The shows that the hotel, for the convenience of a guest, drainage of malarial swamps would surely largely communicates with some one who furnishes the carcontribute to promote the public health; but could | riage. So also the communication is made with it be contended that therefore the burden of such an express company or railroad company to take drainage may be laid upon some single person to charge of a guest's luggage. So in both instances be arbitrarily selected, or upon those who happen the charges are paid at the desk of the hotel for to own the adjacent dry land, in disregard of the the guest and put in his bill. In neither is it principles applicable to special assessments and known that the proprietor of the hotel assumes the special taxation? Undoubtedly, the allowing of character of an expressman or hirer of a vehicle, or ice and snow to remain upon a sidewalk may be de any responsibility for the performance of the duties clared a nuisance, but it must be a public nuisance, of either. And this usage, as claimed to exist and one, too, not caused by the act of the adjacent within the knowledge of every one, makes the property holder, but solely by the action of the cle-guest and not the hotel keeper the bailee. If this ments. No one questions the right of the munici be so, then if the hiring in this case was, as is pality to prevent such use of property, and such ac claimed, a hiring to the hotel keeper, it was not tion of the citizen as may be injurious to the pub- within the scope of his business, and so did not lic; but the adjacent lot owner has no ownership bind the principal. If it was a hiring to the guest, or control of the adjacent street, and this orclinance then the contract of the husband encounters a leseeks to control the action of no one while on the gal difficulty in the shape of the statute of frauds. street. The lot owner is held responsible solely It was a verbal contract to answer for the default and simply for the accident of owning property or miscarriage of another. Kirkhum v. Jlarter, 2 near the nuisance. IIe may have no more actual Barn. & Al. 613; Brown Stat. Frauds, § 155. control of the street, or necessity to use it, than if Therefore to recover at all it was essential for the his property were miles away; still he is held re plaintiff to stand upon a usage for hotel keepers to sponsible for a result he could not control, and to hire horses to their guests. For it is perceived the production of which he did not even theoreti that if he was the bailee, the letting to the guest cally contributc. The gist of the whole argument was a new bailment in which he was the bailor. If is merely that it is convenient to hold him respon a part of the business of a hotel keeper is to let sible. It is not perceived why it would not be horses to his guests, and by reason of this the hotel equally convenient to hold him responsible for the proprietor is bound for a hiring of a horse for that entire police government of so much of the street." purpose, with a contract extending the liability of The court reaffirmed Gridley v. City of Bloomington, the hirer to an absolute insurance, it is difficult to 88 Ill. 554; S. C., 30 Am. Rep. 566. Dickey, Sheld perceive the limit to the agent's authority in this don and Craig, JJ., dissenting. We believe this direction. If he can hire, he can purchase. IIe doctrine prevails nowhere else.

can establish a stable with an unlimited number of

animals, and for their price and food and attendIn Brockicay v. Asullin, 46 N. J. L. 448 (Supreme ance, the proprietor, although ignorant of the act, Court), an agent was authorized to manage a hotel, will, by reason of the general authority to manage and without the knowledge of the principal en

the business of the hotel given to the agent, betered into an arrangement with a livery stable come responsible. I think, as the case stands upon keeper that the latter should furnishi carriages for the record, with no proof that the transaction conthe guests of the house, and that the house would | cerning which this contract was made was incident



to the hotel business, and with the fact that the distinctions and collateral authorities, and thus proprietress was ignorant of the transaction, there waste time in getting rid of a heap of super-incumis nothing to support the agent's authority to bind bent material, useful enough perhaps in other conher by such an agreement."

nections, but just superfluous rubbish for the purpose we have in hand.

We would laugh at the

savant, who having to call to his aid the law of A SHORT PLEA FOR A CODE.

gravitation, should for that purpose remount to

Newton's original experiments, and work his way F laws “the most to be desired are those that from them downward to the matter in hand, and

are the most rare, the most simple and gen- yet this is what we are doing every day of our lives.

and I am further of opinion that we were Further, is it not probable that if our scientific better to have none at all than to have them in so men pursued this round-about course they would prodigious numbers as we have.” Thus concluded go wrong in many an observation, simply for want old Montaigne. It is hardly necessary to observe of having the necessary law right to their hands? that were he living to-day he would see no reason The length and difficulty of the reference would for changing his opinion. IIe knew that “there is lead to many an oversight of the law. And so little relation between our actions that are in per- here, if this old maxim, couched in fair, modern petual mutation and fixed and immobile laws," terms, formed part of a handy, well conned code, and he expresses with his usual pungent quaintness would not its force be invoked in many a case where the futility of the attempt to provide for all con it is now passed over in inadvertent silence? tingencies by statute and by precedent. It is like Nor let it be objected that what we ask for is simtrying to hold quicksilver. It is, in short, unscien- ply a new version of the Decalogue. In the best tific, and this is to our mind the fatal objection to sense it is a moderu Decalogue we ask for. "For the common law in its present state. We think there are in nature certain fountains of justice that the supporters and advocates of a code are, in whence all civil laws are derived, but as streams, effect, seeking to adopt in law the same method and like as waters do take tinctures and tastes from that prevails in every other branch of human know.. the soils through which they run, so do civil laws ledge – to strip away the scaffolding, and show vary according to the regions and governments the actual state of the structure.

where they are planted, though they proceed from If, in any of the physical sciences, the workers of the same fountains.” (Advancement of Learning.) the present day had at their command only the ac We believe that the constant tendency of modern cumulated, undigested experiments of their prede- law is toward union with morality. Hard cases do cessors, what progress could they make? It is by not make bad law, it is bad law that makes the method that they aclvance. Each man's discovery hard cases. The perfect consonance of law and or experiment becomes part of a distinct and defi conscience is no impossibility. The goal is still nite whole, so that the trained specialist can state far off, but how much nearer than fifty years ago! precisely the position up to date of his particular | Already in England, equity and common law "have science. Why should law alone be exempted from met and kissed each other,” and “Meeson and this process? Because, we are told, law is not a sci- Welsly” slumber in disused oblivion. Now what

Most assuredly amongst ourselves at present hinders that we shoull put on record the exact it is not, but if it is wished by the assertion to con present state of our corpus juris, so that we may see vey that it is intrinsically incapable of being made where we stand? Will not defects be more quickly a science, we have proof positive that the assertion remedied when they stare us in the face in black is wrong. Wherever a cocle exists there law has and white, challenging the attention of every assumed the rank and dignity of a science; there reader? jurists and jurisconsults exist in fact as well as Nor do we think it reasonable to fear that the name, and the study of the law is a truly liberal mere fact of codification would tend to arrest restudy. Law is the essence of all other sciences, form. The day of reverence for authority, as auand shall it be unscientific only when applied to hu-thority, has gone by. We are not at all likely to man asfairs, its most immediate function? Can we sit clown and worship the idol our own hands have not all discern with more or less distinctness the fun made. The danger, if any, lies in a contrary direcdamental principles which underlie the endless mu tion that of too hasty and ill-considered attempts tations of our cases? Often misapprehended and to remove apparent blemishes. misapplied, still the principles are there, just as In one respect the law would gain in authority, capable of exact and definite statement as the laws viz., in public estimation, and how much such a of gravitation or molecular force.

gain is needed no American requires to be told. Take one simple instance. Sic utere tuo utulienum Just as much as the reproach of obscurity is renon lepilus is one of the bottom truths, as olid as the moved from our “jurisprudence” (save the mark!) hills, which must have been recognizable as a prin- just so much will that jurisprudence gain in moral ciple of right by the first judge who ever tried a influence. Who can respect a shifting umbra that

And yet where is it in our law? We must its very professors cannot define? The influence of go and dig it out of i'lctcher v. Rylands or some the lawyer to-day is stlll something like that of similar

accompany it with a long train of the magicians of times gone by. He is a professor



case, and

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of a black art, and his pleas and demurrers, his in record the same, and issue letters thereupon as distructions and exceptions, correspond to the pentu- rected in the judgment. § 1864. But the plaintiff is not gons and aspects, the houses and cadalabadra of old

entitled to a judgment establishing a lost or destroyed Paracelsus and his mates. That this anticipation

will, as prescribed in this article, unless the will was

in existence at the time of the testator's death, or was of increased authority is not purely theoretical may fraudulently destroyed in his life time; and its probe seen by a comparison of the public esteem in visions are clearly and distinctly proved by at least which the civil law is held in the countries under two credible wituesses, a correct copy or draft being its rule, with the total indifference of our own peo

equivalent to one witness. $ 1865.

A lost or destroyed will can be admitted to probate ple to the common law as a distinctive system. It

in a Surrogate's Court; but only in a case where a is not that the civil law is better than the common

judgment establishing the will could be rendered by law, but it is presented in a better shape, a shape the Supreme Court, as prescribed in section 1865. S 2621. more comprehensible by the laity. In a word, it is Before admittiug a will to probate the surrogate must more scientific.

inquire particularly into all the facts and circumstan

ces, and must be satisfied of the genuineness of the The vulgar error that codification would reduce

will, and the validity of its execution. $2622. It it or appreciably affect the amount of litigation is

appears to the surrogate that the will was duly execuhardly worth notice. Litigation is the application tod, and that the testator at the time of executing it of law to facts, or, and more frequently, the decis was in all respects competent to make a will, and not ion of disputes as to what are facts; our quarrel

under restraint, it must be admitted to probate, etc. is the law itself.

$ 2623. Before a written will is admitted to probate, upon

• We give the authority of law to infinite doctors, infinite arrests, and as many

two at least of the subscribing witnesses must be pro

duced and examiued, if so many are within the State interpretations, yet do we find any end of the need

and competent and able to testify. S 2018. The death, of interpreting?” We believe not. Let us then abseuce from the State, lunacy, or other incompetency have something definite to interpret. Let us

of a witness, required to be examined as prescribed in deavor to make of our profession not a mere em

this or the last section, or proof that such witness can

not, after due diligence, be found within the State or piric trade, carried on almost by rule of thumb), but

elsewhere, must be shown by aflidavit, or other coma science, distinct, clear and consistent. For this

petent evidence to the satisfaction of the surrogate, a code is the first requisite, and without it all must before dispensing with bis testimony. $ 2619. If all remain in ever-changing confusion, and the term

the subscribing witnesses to a will are, or if a subscrib“jurist” or jurisconsult,” as applied to an Ameri

ing witness whose testimony is required is dead or in

competent, by reason of lunacy or otherwise, to tescan or English lawyer, must be a ridiculous mis

tify, or unable to testify, or if such a subscribing wit

ness is absent from the State, and the surrogate is satA. B. M. isfied that his testimony cannot, with due diligence,

be obtained by a commission, or if such a subscribing

witness has forgotten the occurrence, or testifies LOST WILLS.

against the execution of tho will, the will may never1.

theless be established upon proof of the hand-writing

of the testator and of the subscribing witnesses, and A N action to procure a judgment, establishing a will, also of such other circumstances as would be sufficient

may be maintained by any person interested in to prove the will upon the trial of an action. S the establishment thereof, where a will of real or per.

26:20. sonal property, or both, has been executed in such a Every last will and testament of real or personal manner, and under such circumstances, that it might, property, or both, shall be executed aud attested in under the laws of the State, be admitted to probate in the following manner: a Surrogate's Court, but the original will has been lost 1. It shall be subscribed by the testator at the end or destroyed, by accident or design, before it was duly of the will. proved and recordod within the State. Code of Civ. 2. Such subscription shall be made by the testatorin Proc., $ 1861. If in such an action, the facts nocessary the presence of each of the attesting witnesses, or shall to establish the validity of the will as prescribed in be acknowledged by him to bare been so made to each the last section are satisfactorily proved, final judg of the attesting witnesses. ment must be rendered establishing the will accord 3. The testator at the timo of making such subscripingly. Code, $ 1862. Where the parties to the action tion, or at the time of acknowledging the same, shall who have appeared, or have been duly summoned, in declare the instrument so subscribed to be his last will clude all the persons, who would be necessary parties and testament. to a special proceeding in a Surrogate's ('ourt, for the 4. There shall bo at least two attesting witnesses, probate of the samo will, and the grant of letters each of whom shall sign his name as a witness at the thereupon, if the circumstances were such that it end of the will, at the request of the testator. 2R. S., could have been proved in a Surrogate's Court, the

p. 63, § 40. final judgment, rendered as prescribed in the last sec These are all of the statutory provisions which hare tion, must direct that an exemplified copy thereof be any general bearing upon questions relating to the transmitted to tho surrogato having jurisdiction, and probate of lost wills; and it will be observed that lost be recorded in his office; and that letters testament wills must be proved in substantially the same manary, or letters of administration with the will an ner as wills which are in court. pexed, be issued thereupon from his court in the same Before a decree ('len be made establishing a lost will, the manner, and with like effect as upon a will duly proved court must bc satisfied that the statutory requirements iu that court. $ 1863. A copy of the will so established, have been substantiully complied with. or if it is lost or destroyed, the substance thereof, must Strict proof is not necessary in any case, unless there be incorporated into a final judgment, rendered as are suspicious circumstances, and in the probate of prescribed in the last section, and the surrogate must lost wills the proof is necessarily less strict than in

cases where the will itself is in court. It is not to be expected that the proof will be of the same formal character. Redfield Sur. Prac. 224.

The proof of a lost or destroyed will proceeds upon the theory that it is not in existence, and cannot be produced before the surrogate. Hence the case is one of secondary evidence exclusively. Everitt v. Everitt, 41 Barb. 385.

First, as to proof of the execution of the will. The witnesses should be produced and sworn, if their testimony can be secured. It is not indispensably necessary to show who all the witnesses to a will are, if the circumstances proven are sufficient to warrant a presumption of due execution. See the remarks of the court in Butler v. Benson, 1 Barb. 538. If an attesting witness has forgotten all about the attestation, the will may nevertheless be admitted to probate upon other satisfactory proof. Code, $ 2620. As far as his testimony is concerned, a witness might as well be dead as to have forgotten the transaction about which he is expected to testify; and a party might as well not know who a witness is, as to be unable to prove any thing by him when he is brought into court. The failure of witnesses to remember the circumstances attending the execution and attestation of a will, shall not be allowed to defeat nor prejudice the rights of those interested in its probate. So the court say in the last case cited (Butler v. Benson): “Get the best evidence there is, and if there are no suspisious circumstances the law will presume the instrument properly executed, particularly where the attestation clause is full.” For a very instructive discussion of this question, see the opinion of Ingraham, J., in Lawrence v. Norton, 45 Barb. 448.

If the circumstances show that the statutory requirements were probably complied with, the will should be admitted to probate.

If the attestation clause is full, and the signatures genuine, and the circumstances corroborative of duo oxecution, and there is no evidence disproving a compliance in any particular, the presumption may be lawfully indulged that all the provisions of the statute were complied with, although the witnesses are unable to recollect the execution, or what took place at the time. A mere failure of memory on the part of the witnesses shall not defeat a will, if the attestation clause and other circumstances are satisfactory to prove its execution. In 10 Kellum Il’ill, 52 N. Y. 517. In this case a good deal of importance was attached to the fact that the will was drawn by an experienced lawyer, accustomed to drawing wills, and conversant with the provisions of the statute respecting their execution.

The law raises certain presumptions respecting the execution of wills.

The earliest case involving these presumptions that has come under my observation is Hands v. James, 2 Comyn, Rep. 531 (1735-6).

The attestation clause was as follows: “Subscribed and signed, sealed, published and declared by the testatrix as the last will and testament in presence of us," and then three witnesses set their names. But these witnesses being all dead, there was no proof that the witnesses set their names in the presence of the testatrix, but one witness was an attorney of good character. The court said: “The witnesses, by the statute of frauds, sought to set their names as witnesses in the presence of the testatrix; but it is not required by the statute that this should be taken notice of in the subscription to the will, and whether inserted or not, it must be proved. If inserted, it does not conclude, but it may be proved contra, and the verdict may be found contra. Then if not conclusive when inserted, the omission does not conclude it was not so,

and therefore it must be proved by the best evidence the nature of the case will admit. In case the witnesses be dead, there cannot probably be any express proo since at the execution of wills few are present but the devisor and witnesses. There,as in other cases, the proof must be circumstantial, and here are circumstances :

1. These witnesses have set their names, and it must be intended that they did it regularly.

2. One witness was an attorney of good character, and may be presumed to understand what ought to be done, rather than the contrary.

And there may be circumstances to induce a jury to believe that the witnesses set their hands in the presence of the testator rather than the contrary." This case was cited and approved in Croft v. Pawlet, 5 Str. 1109.

Dau v. Brown, 4 Cow. 483, was a case where a lost will, executed before the revised statutes, was attempted to be proved. At that time three subscribing witnesses were necessary. William L. Marcy, the lawyer who drew the will, could only recollect the names of two of the witnesses. No one was able to state who the third witness was, and of course his signature was not proved; yet the court held the will sufficiently proved, and cited with approbation the case of Hands V. James, supra. Woodworth, J., said the testimony was all that could be expected under the circumstances, and it made a prima facie case. The counsel for the defendants say in the argument: “The wituesses may be entire strangers to each other, or subscribe at different times, and it would be hardly possible to reach the strictness demanded of us. Who of the legal profession, when they write and attest wills, charge themselves with names? If not, and the will happens to be lost, it must be unavailable, unless the proof in the present instance be enough. The hardship upon the heirs is no answer. The presumption is always in favor of supporting the will. Bond v. Seawell, 3 Burr. 1773. Suppose the names obliterated or eaten out by rats, how can wo know them? Yet it cannot be denied that the will may, notwithstanding, be established."

Fetherly v. Waggoner, 11 Wend. 599, is a case similar to Dau v. Brown. The court say: “The best evidence of which the nature of the case admits is competent for the purpose of showing a valid execution," and it was held that while the name of the third witness did not appear, the circumstances were sufficient to warrant the finding of the fact of due execution.

Brown v. Clark, 77 N. Y. 369, is an instructive case, though the will was in court. There the attestation clause was full, and recited all the facts constituting a Jue execution, and was signed by two wituesses. When examined the witnesses were unable to state that they signed the will as witnesses at the request of the testatrix, or that she at that time declared it to be her will. Tho will was drawn by Mr. Clark, who was a lawyer by profession, and was exeouted by the testatrix under his supervision. At the time of the probate of the will Mr. Clark was dead, and no persons were living who were present at the execution, except the two witnesses. Yet the court held that the attestation clause, taken with other circumstances and the fact that the will was drawn by a lawyer, were sufficient to warrant the finding of due execution of the will.

No unvarying rule as to the amount of proof necessary to establish the execution of a will can be laid down, which is to control every case, as the circumstances of each case must differ from any other. Hence it becomes the duty of the court to ascertain from all the facts and circumstances, whether the instrument

offered is ostablished with reasonable certainty, and if involved the question of the proof requisite to estabit is, to receive the same. Rider 5. Legg, 51 Barb. lish the due execution of a lost will, and it was there 260. The law lays down no stubborn, inflexi held that if the witness had been able to state that the ble rule in this class of cases, but accepts the two or three names which he noticed at the foot of the best evidence that can be procured, adapted paper, were subscribed to a full attestation clause, the nature of human affairs, human infirmities and

showing that the paper had been executed with the casualties, which tends with reasonable certainty to formalities required by the statute of wills, that testi. establish the fact in controversy. Everitt v. Everitt, 41 mony, in connection with the other testimony adBarb. 385.

duced by the proponent, might have made out a prima Greenleaf, 2 Ev., § 688 a, says, that if the will is facie case.” The other testimony referred to conproved to be lost, it may still be admitte, to probate sisted entirely of declarations by the testator to the upon secondary evidence, as in the case of lost deeds effect that he had made a will. The witness who tesand other writings, putting lost deeds and lost willson tified to having seen the will did not remember the the same basis.

names of only ono witness, though he testified that In Jackson r. Vail, 7 Wend. 125 (a case of a lost there were two or three names at the foot of the padeed), it is said, that where it appears that there were per, under and at the left hand of that of the testator. subscribing witnesses to the deed, but it does not ap The court also very properly held that the bare declarpear, and cannot be ascertained who they were, the ation of the deceased, that the paper which the witness party seeking to prove the deed cannot be required to saw was his will, does not tend to prove tbat it was produce the witnesses. The loss of the dood put it as executed as the statute requires. much beyond his power to call upon the subscribing It is not essential that the date should be shown to a witnesses, as to read the deed itself.

certainty. All that can be required is that the eviIt is true that subscribing witnesses to deuds are not dence sball be sufficient to enable the court to approxinecessary in this State, but the samo rule is applicable mate to the date. Steele v. Price, 5 B. Mon. 58; Deakins in case of wills, as in case of lost deeds, where subscrib v. Ilollis, ✓ Gill & Johus. 311; 2 Phil. Ev. 660. ing witnesses are necessary. Greenl. 1 Ev., $69, etc., If the execution of the will is satisfactorily proved, it discusses this subject, and lays down the general rule must then be shown that the will was in cristence at the that proof of tho instrument must be made by tho time of the testator's death, or was fraudulently destroyed subscribing witnesses, but to this rule several excep in his life-time. ('ode, § 1865. tions are made, one of which is, that if the instruinent A will is “fraudulently destroyed,” within the is lost, and the name of the subscribing witness is meaning of the statute, where it is destroyed without unkuown, the instrument may be prored without call the intelligent consent of the testator, c. g., unless it is ing such witness. $ 572.

destroyed by the testator himself, under undue indluNo higher or stricter rule exists as to a lost will than ence, and in belief of a fraudulent statement, made by as to a lost deed. By statute in several States, deeds one interested in his estate. l'oorhees v. l'oorhees, 39 must be attested and proved with the same formali N. Y. 463; Timon v. Classy, 45 Barb). 4:38, is on the same ties as wills. In at least twenty-threo States and Ter line; also Schultz v. Schultz, 35 N. Y. 653; Smith v. ritories, attesting witnesses are necessary to convey Wait, 4 Barb. 28, where it was held that the destrucances of real estate. In Arkansas, Delaware, Idaho, tion of a will be the testator is not a rovocation Nebraska, Novada, North Carolina, Pennsylvania, thereof, unless he intends thereby to revoke it, and Texas, Utah and Wyoming at least one witness is where the testator is a lunatic, he can have no such necessary, and in Connecticut, Florida, Georgia, Lou intention. It is also held that if a man is incompetent isiana, Maryland, Michigan, Minnesota, New Hamp to make a valid will, he is equally incompetent to rosbire, Ohio, South Carolina, Vermout, Washington roke a will previously inado. Territory and Wisconsin two witnesses are necessary

CHARLES Z. LINCOLN. to the valid execution of a deed.

Judge Nelson in Pelletreau v. Jackson, 11 Wend. 123, discussing this question, says: “ Where there is no witness to the deed, or if there is, and he denies hav NEGOTIABLE LYSTRUALENT-YATI0X21 BANK ing any knowledge of the execution, or the name of a

INDORSEMENT FOR COLLECTION. subscribing witness is fictitious, or the witness is inerested, or of an infamous character, or if dead, or

MINNESOTA SUPREME COURT, DEC. 22, 1884. out of the jurisdiction of the court, and after diligent inquiry, no proof of the hand writing can be made, or

MERCHANTS' NATIONAL BANK V. HANSOX. if upon like inquiry nothing can be heard of the subscribing witness, so that he can neither be produced,

1. The plea of u'tru rires is not available to defeat a recovery nor his handwriting proved; in all these cases the ex

by a National bank upon negotiable paper purchased ecution of the deed may be established by proving the handwriting of the party, or by his admission that he

2. L., holding certain promissory notes payable to his own executed it. And all these qualifications of the gon

order, transferred them to the plaintiff for value. The eral principles, as to the proof of the execution of in

plaintiff afterward returned them to L. for collection, struments with subscribing witnesses, are in strict ob

having made upon them indorsements directing payment servance of another rule of evidence, namely, that the

to be made to L., or order, for collection on the plaintiff's best of which the nature and stato of the case will ad

account, L., receiving the notes for collection, inmit must be produced, citing numerous authorities.

dorsed them to defendant before maturity, for value. The declarations of the grantor may be received as

The defendant noticed the indorsements, which remained corroborative evidence of the execution and existence

uncanceled when he purchased the notes, but nade no of a lost deed. Kent r. Harcourt, 33 Barb. 491. Prob.

inquiry, and no facts were comniunicated to him, except ably the same rule would apply in the probate of lost

such as were implied from the 'indorsements. Held, that wills, with some limitations as to time, etc.; and in

the indorsements were effectual as notice of the plaintiff's Steele r. Price, 5 B. Mon. (Ky.) 58, such declarations

title, and that the purchase of the notes by the defendant, were held to be proper, taken in connection with other

without inquiry, was in the absenco of any explanation declarations, introduced to prove a non-rorocation of

conclusive proof of bad faith. che will.

PPEAL from an order of the District Court, WilIn re Russell, 33 Iun, 271, was a case in which was kin county

by it.


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