cide, reasonable cause for believing that Sorenson had so killed and stolen animals of defendants, and that they had followed Sorenson with purpose of arresting him, or of recovering any of the property of them, or of either of them, from the possession of Sorenson; and if you further believe from the evidence that the defendants, on the seventh day of November, A. D. 1884, at Emery county, in this territory, came upon deceased and his herd of cattle, and discovered an animal belonging to one of the defendants, in said herd, and in the possession of the deceased; and if you further believe from the evidence that the defendants, or one of them, in the presence of the others, charged the deceased with having killed one animal not his own, and with having others in his herd, and that deceased then and there drew a loaded pistol, and leveled it on one of the defendants in a threatening manner, and afterwards, upon the request of said defendants, lowered his weapon, and indicated his intention to proceed no further towards combat; and that afterwards the defendants, or one of them, in the presence of the others, threatened to arrest deceased, and then and there shots were interchanged between two of the defendants and deceased, and the deceased was then and there shot to death by defendants, or either of them, with the consent and in the presence of the others,-I instruct you that the burden of proving the necessity or excuse or justification for the killing is upon the defendants, and they must establish the same by a preponderance of evidence, unless the evidence on the part of the prosecution tends to show such necessity, excuse, or justification." (Given.)

The principle announced is this: If the killing is satisfactorily established without evidence on the part of the prosecution tending to prove justification, the defendants must prove any necessity, excuse, or justification for the act, by a preponderance of the evidence which he produces relating to such necessity, excuse, or justification. The prosecution having proven the act of killing beyond reasonable doubt, without any evidence of circumstances mitigating, excusing, or justifying that act, the burden of proving them is upon the defendant. Without any evidence with respect to them they will not be presumed; and, if defendant's proof is equally balanced with respect to them, they are not proved,-defendant's evidence is equally balanced and neutralized. In that case there is no excess of proof on his part to overcome the presumption from the killing.

The portion of the charge above quoted was evidently based upon the following section of the Criminal Code. "Upon a trial for murder, the commission of the homicide by defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." Laws Utah 1878, § 268, p. 117. In this section the legislature adopted the common-law rule, thus stated by Russell: "Besides the presumption which a jury may make from circumstantial evidence, there are also presumptions of law. Thus, on every charge of murder, the fact of killing being first proved, the law presumes it to have been founded on malice till the contrary appears, and therefore all circumstances alleged by way of justification, excuse, or alleviation must be proved by the prisoner, unless they arise out of the evidence produced against him." 2 Russ. Cr. 731. The principle is expressed in equivalent terms in Fost. Crown Law, 255: "In every charge of murder, the fact of killing being first proved, all the circumstances, of accident, necessity, or infirmity, are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumeth the fact to have been formed in malice until the contrary appeareth; and very right it is that the law should so presume."

The substance of these quotations the court announced to the jury in its charge. The principle may be stated in this form: The acts of killing being

proved beyond a reasonable doubt, without any other evidence of intent, malice is presumed beyond a reasonable doubt; and, unless the other evidence preponderates against it, the presumption of malice will remain. The presumption of malice from the killing must be met with other evidence; and if, without the presumption from the corpus delicti, the evidence of malice is equal to the evidence against it.-balanced,—the presumption from the killing is not affected; and if the evidence, without the presumption from the fact of killing, merely raises a reasonable doubt of malice, the presumption from the weight of evidence is added to the presumption from the killing, and the presumption of malice is stronger than it would have been without defendant's evidence, for a reasonable doubt is supposed to exist against the mere weight of evidence. The law presumes there may be a reasonable doubt of the existence of a fact supported by the weight of the evidence. The rule stated in the portion of the charge quoted did not deprive the defendants of the benefit of a reasonable doubt of the existence of malice. It merely required the presumption of guilt from the fact of killing to be considered with all the other inferences and evidence bearing on the fact of malice. Regarding presumptions and inferences as part of the evidence, the rule stated required a reasonable doubt of malice in view of all the evidence bearing on that fact, not alone in view of the other evidence, without the effect of the presumption from the killing. In other parts of the charge (which was quite long) the jury were plainly informed that malice, as well as the killing, must be proved beyond a reasonable doubt, and that if they had a reasonable doubt, in view of all the evidence before them, of any fact essential to guilt, they must acquit.

Counsel for the defense urge that the rule under discussion can only apply to a case of secret killing, and that it had no application to the one in hand; that the giving of it was calculated to mislead the jury. The jurors were the sole judges of the credibility of the witnesses and of the weight of the evidence. Unless there was proof on the part of the prosecution tending to show that the crime committed only amounted to manslaughter, or that the defendants were justified or excusable, the rule was certainly applicable. But, assuming it had no application to the evidence, in view of the entire charge we do not believe the jury were misled by it.

It appears from the record that one F. C. Goudy, an attorney at law, assisted the district attorney, on the trial, at the latter's request and by permission of the court, and against the objection of the counsel for defendants, and that he was employed by the relatives or friends of the deceased. This is also assigned as error. While the objection is supported by high authority, we are of the opinion that the weight is to the contrary, and that the rule generally followed is to leave such permission to the discretion of the court. It often happens that two or more counsel are engaged for the defense, and justice is best promoted by a full and fair presentation of the law and the evidence. The more learning and ability brought to bear on the case, the better. The court should so control the investigations as to prevent oppression and injustice.

A great number of other errors are assigned, none of which, in our judg ment, are well founded. We find no error in the record, and therefore atfirm the judgments rendered by the court below.

BOREMAN, J. I concur. In the charge the rule that the burden of proof never shifts is recognized. That being taken with the thirteenth instruction, I do not think the jury could have been misled.

POWERS, J. I dissent. I am of the opinion that a new trial should be granted. I think that the charge of the court was liable to misiead the jury, and that there are other errors in the record sutlicient to reverse the case.

(2 Ariz. 214)

JOHNSON . ZECKENDORF and others.1

(Supreme Court of Arizona. November 5, 1886.)

1. PROMISSORY NOTE-INDORSERS.

Where the payee of a note writes his name on the back of the same in blank, he becomes an indorser, and not a joint maker.

2. SAME-NOTICE OF NON-PAYMENT.

An indorser of a promissory note must be notified of demand, and non-payment by maker, or he is not liable.

3. SAME-WAIVER OF NOTICE.

A waiver of such notice by a person in charge at the usual place of business of indorser, in the absence of indorser, completes his liability.

Appeal from Pima county.

Earll, Campbell & Stephens and Chas. Silent, for appellants, L. Zeckendorf & Co. and others. R. D. Furguson and Jeffords & Franklin, for appellee, John S. Johnson.

BARNES, J. This was an action brought by Johnson against L. Zeckendorf & Co., upon a promissory note made by Tully, Ochoa & Co., and purporting to be indorsed by L. Zeckendorf & Co. The note reads as follows: "$2,800. TUCSON, A. T., September 17, 1881. "Three months after date we promise to pay, to the order of L. Zecken- · dorf & Co., twenty-eight hundred dollars, at two per cent. interest per month, value received.

[Signed]

Indorsed: "L. ZECKENDORF & Co."

"TULLY, OCHOA & Co.

After the indorsement of L. Zeckendorf & Co., and upon the back of the note, these words were written:

It appears from the evidence in this case that the defendants, Tully, Ochoa & Co. and L. Zeckendorf & Co., were separate mercantile houses, doing business at Tucson; that the former were indebted to the latter, who were pressing for a reduction of the balance due. The plaintiff had made known to a broker by the name of Fried that he had $2,800 to loan. Zeckendorf & Co. went to the broker, and told him Tully, Ochoa & Co. were indebted to them, and that they were trying to get payment. Fried said he had a customer for whom he would loan $2,800, with Zeckendorf & Co.'s indorsement. Tully, Ochoa & Co. also asked him if he could get them a loan. He said he could, with Zeckendorf & Co.'s indorsement. The note was handed to him, and plaintiff handed him the money, and he delivered the note to plaintiff. Zeckendorf & Co. paid him $42, one-half of 1 per cent. for 90 days' brokerage, for negotiating this loan. The money went to Zeckendorf & Co., and on that day Tully, Ochoa & Co. were credited $2,800 on the books of Zeckendorf & Co. The plaintiff left the note in the safe of Mr. Etchells for safe-keeping. When the note was due, viz., December 17th, Etchells took the note to Zeckendorf & Co.'s place of business, and handed it to the person in charge of the main office. The person to whom it was handed directed him to Mr. Wittleshoefer, who was the book-keeper. The latter took the note, and wrote the indorsement of December 17th. At that time the members of the Erm of Zeckendorf & Co. were absent, as well as Strauss, the general financial manager; and Wittleshoefer was left in charge of the business.

The court below found the above facts, substantially, and, as a matter of law, concluded that Zeckendorf & Co. was a joint maker of the note, and so 'Affirmed. See 8 Sup. Ct. Rep. 201.

v.12p.nos.3.4-5.

liable, without notice of non-payment by Tully, Ochoa & Co. The court also found that Wittleshoefer was an agent authorized to waive protest, and bind the firm. The appellants seek to reverse this case for errors in concluding that Zeckendorf & Co. were joint makers, and not indorsers, and that Wittleshoefer was authorized to waive protest.

If Zeckendorf & Co. are joint makers, no notice and protest was necessary; but if they are indorsers, notice, demand, and protest were necessary, and it then becomes important to inquire whether notice, demand, and protest were waived. Upon its face, this is no other than a contract of indorsement. Tully, Ochoa & Co. are the makers; Zeckendorf & Co. are the payees. Zeckendorf & Co. wrote their name on the back of the note, and so are indorsers in blank. This was done on the date of the note. The evidence in this case confirms that. Plaintiff was willing to loan on Zeckendorf & Co.'s indorsement, and ot otherwise. Zeckendorf & Co. negotiated this loan,—that is, discounted the note,-and paid the brokerage therefor. The proceeds of the note went to them, and they, on the same day, gave Tully, Ochoa & Co. credit for the same. The transaction was no other than the ordinary discount by the payee of a note by indorsement. Tully, Ochoa & Co. owed Zeckendorf & Co., and gave their note to them, who indorsed it to plaintiff. It was not accommodation paper, nor an accommodation indorsement by a stranger to the note, and hence does not come within Rey v. Simpson, 22 How. 341; Good v. Martin, 95 U. S. 90, and that class of cases. These cases hold that a stranger to a note, who indorses the same before delivery, is a joint maker of the note. While this is sustained by the weight of authority, and, as we think, by the better reason, it has met strong opposition. See note to Burton v. Hansford, (10 W. Va. 470,) 27 Amer. Rep. 580; note to Jones v. Goodwin, (39 Cal. 493,) 2 Amer. Rep. 475; note to Fitzhugh v. Love, (6 Call, 5,) 3 Amer. Dec. 571; and note to Moies v. Bird, (11 Mass. 436.) 6 Amer. Dec. 182.

We conclude that the court below erred in holding that Zeckendorf & Co. were joint makers of the note with Tully, Ochoa & Co., and therefore liable as a principal.

As first indorsers, Zeckendorf & Co. were entitled to notice of demand upon and non-payment by the makers, Tully, Ochoa & Co., unless the evidence shows that this was waived. On the back of the note in evidence, on the date of the maturity of the note, was indorsed the words, "We hereby waive protest," signed by Zeckendorf & Co., "J. WITTLESHOEFER." It could not be contended that this would not be a waiver if signed by one of the firm of Zeckendorf & Co., but it is insisted that Wittleshoefer, who wrote "L. Zeckendorf & Co." on the note, had no authority to do so. This was one of the issues of fact on the trial, and the court found that he had authority to waive protest, and bind the firm. We cannot say that this finding is erroneous. There is evidence to sustain it. The evidence was better presented before the trial court than it can be here, and that court can better determine disputed questions of fact. Etchells, with whom the note was left for safekeeping, testified that he told plaintiff when the note was due to remind him, and he would go and have them waive protest, or pay the money; that plaintiff did remind him, and on the day the note was due he took it to Tully, Ochoa & Co. first, and demanded payment, and they wrote their name on the back of it. He then took it to Zeckendorf & Co., and presented it to some one at the table in the front or main office, and he, whoever he was, directed him to Wittleshoefer, who was in the inner office. Wittleshoefer took the note, and wrote the waiver of protest on the back, and handed it back to him. Nothing was said. He did not say he had no authority to do it. Wittleshoefer testified that he was the book-keeper of Zeckendorf & Co., and had been for five years; that the waiver of protest was in his handwriting; it was done in the office of Zeckendorf & Co.; Steinfeld and Strauss were out of

town; in their absence, that he had drawn checks; that his signature was placed in the bank by Mr. Steinfeld; in the absence of Steinfeld and Strauss, that he drew checks for the interest of the business, and it was left to his judgment as to amount, and when needed, and he would have checked to pay an accepted bill, when due and presented. Asked what he would have done if a matured note had been presented, and what would have been his authority, he did not answer. There was much evidence and much contradiction directed to proof of other similar acts by Wittleshoefer, but we do not think it material to inquire further. We think Zeckendorf & Co. were clearly bound by the waiver of protest by Wittleshoefer. Had he, in the absence of the members of the firm, and of Strauss, the general manager, been found in the general office of Zeckendorf & Co. on the day the note was due, and then and there he had been served with notice of demand upon the makers, and non-payment of the note, such service would have been good. Bank of Louisiana v. Mansker, 15 La. 115; Banking Ass'n v. Place, 4 Duer, 212; Jacobs v. Turner, 2 La. Ann. 964; Merz v. Kaiser, 20 La. Ann. 377.

We quote from Daniels on Negotiable Instruments, § 1017: "Notice left with a clerk or person in charge at the party's place of business, in his absence, or at his place of business, without proof as to the person with whom it is left, is sufficient; and proof that such person was not the party's agent has been held irrelevant, notice being left at the right place. So, leaving it with his private secretary, at his public office, is sufficient."

Notice served upon Wittleshoefer would have been good service, but when the service was made he waived protest, and all further steps in the matter. If he were not specially authorized to do this, who should lose, --his employer, or the person who found him ostensibly in charge of the business, in the absence of the employer, and towards whom he demeans himself as general agent in charge, and assumes to act as such? We think the former. This disposes of all the questions in the case.

The judgment is affirmed.

PORTER, J., concurs.

(71 Cal. 254)

RIDDELL v. HARRELL. (No. 11,363.) (Supreme Court of California.

November 3, 1886.)

1. EXECUTION-SALE-SETTING ASIDE-COMPLAINT "PROBATED"-"DURING HIS LIFE." On a demurrer to a complaint in a suit by a devisee to set aside an execution sale of his testator's land, an averment that the will was "probated by the superior court" means, in effect, that the will was admitted to probate by the superior court; and an averment that testator was, "during his life-time," the owner of real estates, is a statement that he was the owner continuously during his life-time,—and will sustain the complaint.

2. JUDGMENT COSTS-VOID FOR WANT OF NOTICE OF MEMORANDUM.

Where plaintiff obtains a judgment "claiming his costs," and the clerk inserts the costs in the judgment, but no memorandum of the items of the costs as required by statute was served upon defendant, the judgment for costs is as void as it would be if the memorandum had not been filed.

3. EXECUTION-SETTING ASIDE SHERIFF'S SALE-RECEIPT OF BALANCE OF PROCEEDS. In an action by a devisee to cancel a judgment for costs against his testator, and the sheriff's sale thereunder, the presumption that the sheriff, in the execution of his duty, paid or tendered the balance of the proceeds of the sale, above the amount of the judgment and costs, to the deceased testator, raises no presumption that the testator received it, and thereby ratified, the judgment, and will not estop his devisee from seeking relief in equity for cancellation of the judgment.

In bank. Appeal from superior court, Tulare county.

Action by a devisee to cancel a judgment for costs against his testator, and the sale of land, and sheriff's deed thereunder, and for a deed under order of court to plaintiff. Demurrer to complaint sustained. Judgment for defendant. Plaintiff appeals.