testimony was competent, and such as it is usual to resort to in such cases. The defendant could not be prejudiced by it, and no error was committed in receiving it. Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205.

I have now considered all the grounds relied upon for a reversal of the judgment in this case, and argued in the defendant's brief. The discussion contained therein relating to the demerits of the jury in our system of jurisprudence would be more properly addressed to the law-making power, or some branch thereof than to this court. We have not the privilege of making the laws, but are charged with the duty of expounding them, and seeing to it that they are properly applied; further than this we cannot, and I think ought not to go.

The charge by Judge Jennison was clear, and applicable to the facts in the case. I have discovered no error therein, or in his rulings upon the trial of which the defendant can reasonably complain, and the judgment should be affirmed.

Brown & Brown, Mellett & Bundy, and R. Conner, for appellant.

T. B. Redding and Chambers & Hedges, for appellee.

MITCHELL, C. J. Isaac Lowery brought this action against Luther W. & Frank C. Hess to recover damages alleged to have resulted from the negligent and unskilful manner in which they set and treated his shoulder, which had been dislocated and fractured It is charged in the complaint that the defendants were partners, engaged in the practice of medicine and surgery, and that the plaintiff having sustained a fracture and dislocation of his shoulder employed them and they undertook for a certain reward, to set, reduce, and treat it, and that they executed their undertaking so negligently and unskilfully as that his arm and shoulder became and remain stiff, immovable and fixed in an unnatural position; that in consequence of their negligence and unskilful treatment he suffered and still suffers great pain, distress, and impairment of health, and that he is permanently disabled from pursuing his usual vocation. Incidentally it is recited that in attempting to better and cure his arm and shoulder he has expended $300. Damages are laid at $10,000. While the cause was pending Luther W. Hess died, and his death was suggested on the record. Thereupon Walter A. Boor, administrator of his estate, was substituted as a defendant. Over the several objections of both defendants the action was prosecuted to final judgment, resulting in a recovery

against the estate of the one, and against the other personally for $6,000.

First in the order of presentation and in importance is the question whether, after the death of Luther W. Hess, the action survived against his personal representative. It is plainly enacted in the statute (§ 282) that "a cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person," etc. The rule, actio personalis moritur cum persona, is thus transformed from an ancient maxim of the common law into an express statutory declaration, except only in the cases provided for by its terms. It is said however that where a duty is founded upon contract, even though the breach of it may be in tort, an action ex contractu may, at the election of the person injured, be maintained; and that where the action is thus brought it survives, notwithstanding the statute. In support of this contention, Staley v. Jameson, 46 Ind. 159, and Burns v. Barenfield, 84 id. 43, are relied on. These were cases against surgeons for malpractice, and both turned upon the statute which requires actions for injuries to the person to be commenced within two years. In each it was held that the action was in form ex contractu, and that the statute limiting the time for the commencement of actions for injury to the person did not apply.

What the particular damages were which were claimed as the subject of the actions respectively does not clearly appear from the statement of the complaint in either case. It must be assumed however that the actions were for the recovery of special damages which had relation to property. They were not therefore actions to recover for injuries to the person. If they were, the conclusions reached could not be maintained. This assumption would seem to be justified by an examination of the authorities upon which the decisions are made to rest. Those which support the conclusion reached are cases involving injury to personal property. Dale v. Hall, 1 Wils. 281; Burnett v. Lynch, 5 Barn. & C. 589.

It may be that actions ex contractu are maintainable for the recovery of special damages, resulting from a breach of duty founded on contract, even though injury to the person results. The action thus maintainable however is not and cannot be predicated upon the personal injury, nor to recover damages resulting from injuries to the person. The action must involve injury to the estate, and not to the person. Where the primary cause of action is an injury to the person, and the damages sought to be recovered relate primarily to such personal injury, the statute which provides that actions to recover damages for injuries to the person die with the person of either party cannot be abrogated by the mere form in which the action is brought.

The case of Bradshaw v. Ry. Co., 10 L. R. C. P. 189, affords an example of the instances in which actions sounding in tort may survive. In that case the declaration stated that the testator, a boot and shoe manufacturer, had become a passenger on the defendant's railway to be carried on a certain journey for a re ward, and that they promised to take due care while carrying him as such passenger. Breach, that the defendants did not take care in carrying him, whereby he was injured, and incurred expense in medical attendance, and was prevented from attending to his business, and from personally conducting the same, and that great loss and damage was thereby occasioned to the personal estate of the testator. It was contended that because of the death of the testator the executrix could not maintain the action. But as the ground of the action was to recover damages which accrued to the estate of the testator in his life-time,

such as medical and other expenses, and for injury to business resulting directly from the breach of the contract to carry, it was held the action survived. Of the same character was the case of Potter v. Ry. Co., 30 L. T. (N. S.) 765; S. C., 32 id. 36. In that case, after queting from Knights v. Quarles, 2 Brod. & B. 102, to the effect that if through the default of a carrier, one sustains an injury to his person, whereby his means of improving his personal property were destroyed, his executors might sue. Bramwell, B., said: "Now here there has been a breach of contract, which has caused a loss which has fallen upon the personal estate," and it was held that the action was maintainable to recover for such loss. Again when the case came before the exchequer chamber, Lord Coleridge, C. J., said: "From a breach of the contract on the part of the defendants, damage accrued to the personal estate of the testator." Accordingly it was held that where there was a promise, and a breach of it in the life-time of the testator, resulting in an injury to his personal property, an action in assumpsit might be maintained to recover for such injury. So also it is said in 2 Williams Ex'rs, 876, 877: "If the executor can show that damage has accrued to the personal estate of the testator by the breach of an express or implied promise, he may well sustain an action at common law to recover such damage, although the action is in some sort founded on tort." See also Tichenor v. Hayes, 41 N. J. Law, 193; S. C., 32 Am. Rep. 186. This much has been said to limit the cases of Staley v. Jameson, supra, and Burns v. Barenfield, supra, to the class of actions to which they were doubtless intended to have application.

It is not necessary that we should decide concerning the particular character of special damage to property, which might be recoverable in an action on contract where injury to the person was an incident. It is enough to say this action is brought primarily to recover for injury to the person. That an action, the purpose of which is to recover for an injury to the person, cannot be maintained after the death of the person committing the injury is, we think, supported by all the authorities. And this too regardless of the form in which it is brought.

In Stebbins v. Palmer, 1 Pick. 71, it was held that an action for breach of promise of marriage would not survive against the personal representative of the promisor. Wilde, J., said: "The distinction seems to be between causes of action which affect the estate and those which affect the person only. The former survive against the executor, and the latter die with the person.' Following this case, Colt, J., said in Kelley v. Riley, 106 Mass. 339, a similar case: "The action could not be continued to summon in the administrator, because as no special damage is alleged, it does not survive.”

In the latter case of Chase v. Fitz, 132 Mass. 359, which was an action of the same complexion, in which an attempt was made to charge special damage, it was held that the neglect or refusal to perform an invalid executory contract could not constitute a basis for special damage. After defining to some extent what was meant by the phrase "special damage," as used in the class of cases to which this belongs, it was held that the action did not survive against the personal representative. See also Smith v. Sherman, 4 Cush. 408; Grubbs v. Sult, 32 Gratt. 203; Dillard v. Collins, 25 id. 343.

In the case of Wade v. Kalbfleisch, 58 N. Y. 282, which was an action for breach of marriage contract, brought in form ex contractu, the court, by Church, C. J., said: "Although in form this action resembles an action on contract, in substance it falls within the definition of the exception, as au action on the case

*

*

for personal injuries. The controlling consideration is that it does not relate to property interests, but to personal injuries." In that case it was intimated that as the cause of action was for personal injuries, and as it was indivisible if the personal features of the action were abandoned, leaving nothing but the incidents, special damages were not recoverable. Zabriskie v. Smith, 13 N. Y. 322.

In Lattimore v. Simmons, 13 Serg. & R. 183, the same question was involved. In that case as in this the action had been brought in the life-time of the contracting parties. The defendant having died preceding the action, the question was whether it survived against his executors. Tilghman, C. J., in the course of the opinion, said: "The counsel for the plaintiff rely on the contract in this case, and on some general dicta, that all actions on contract survive. The position is too general. If true it must extend to contracts implied as well as expressed. Suppose the case of a physician or surgeon, who by unskilful treatment injures the health of a patient. Here is a breach of an implied contract; and yet it will hardly be contended that in case of death the cause of action would survive. It seems reasonable therefore to confine the survivor of actions to cases in which actual property is affected, even though there be an express contract."

So too in the case of Chamberlain v. Williamson, 2 Maule & S. 408, Lord Ellenborough said: Executors and administrators are the representatives of the temporal property, that is the debts and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate. But in that case the special damage ought to be stated on the record, otherwise the court cannot intend it. All injuries affecting the life or health of the deceased, all such as arise out of the unskilfulness of medical practitioners, * ** would be breaches of the implied promise by the persons employed to exhibit a proper portion of skill and attention, We are not aware however of any attempt on the part of the executor to maintain an action in any such case."

The case of Vittum v. Gilman, 48 N. H. 416, was an action against the personal representative of a deceased surgeon, and is directly in point. In that case it was said: "It is generally true that a cause of action arising ex contractu survives against the executor, and it is generally true that a cause of action arising ex delicto dies with the wrong-doer. In both cases there are well established exceptions. In respect of the latter, if the offender acquires no gain to himself at the expense of the sufferer, as by beating or imprisoning a man, or by slander, the cause of action does not survive; but if by the wrong, property is acquired by the wrong-doer, whereby his estate is benefited, an action in some form will lie against the executor to recover the value of the property." This case was approved and followed in the later case of Jenkins v. French, 58 N. H. 532. In this last case it is held that where the cause of complaint is for an injury to property to which a personal injury is merely an incident, the action survives; but where the cause of action is for an injury to the person, and property is merely incidentally affected, it does not survive. To the same effect is Wolf v. Wall, 40 Ohio St. 111.

In the case under consideration the cause of action stated in the complaint, and for which damages are claimed, is the injury to the person of the plaintiff. The injuries recited, which might be classed as injuries affecting property;are merely incidents growing out of the injury to the person. In whatever form an action might be brought to recover for such injuries, it must be held to abate with the death of the defendant, as

well within the common-law maxim as within the express terms of section 282, Rev. Stat. 1881. It might well be said within the holding in Goble v. Dillon, 86 Ind. 327, that the action was brought in form ex delicto, but we choose to put it on the broader ground that regardless of the form in which the action is brought, since the injury for which a recovery is sought is an injury to the person, it cannot survive the death of the defendant. In respect of the personal representative of the estate of Luther C. Hess, it was error for the court to require him to answer for the estate of his decedent over his motion to dismiss.

The question remains whether, by the death and consequent abatement of the action as to Luther N., it also abated as to Frank C. Hess. Upon the record as it comes before us, we are not prepared to hold that the death of one partner had the effect to abate the action as to both. As the judgment which was pronounced in the court below must of necessity be reversed, and as this question does not seem to have received such attention in the argument as its importance merits, we do not now until further argument decide it. Ordinarily torts are joint and several, and each tort-feasor who is shown to have participated in the wrong is liable for the whole damage. It is suggested however that this only applies to cases of intentional wrong, and that because neither of the defendants, who were employed as surgeons, may have been willing to undertake the case without the skill and experience of the other, that liability was joint, and not several, and that the abatement of the action as to the one discharged the other. The statement of these propositions on the one side is the extent of the argument relating to the point mentioned on both, and for the reasons already stated we leave the question undecided. Moreover we think without a plea no cause for the abatement of the action is shown upon the face of the record as to the defendant Frank C. Hess. While it is true that because the record contained a suggestion of the death of Luther W., cause for the abatement of the action was as to him apparent on the face of the record. This did not ipso facto abate the action as to his co-defendant. If the action did in fact abate as to him, it must have been upon some cause in addition to the death suggested, and a plea was therefore necessary to bring it on the record. The action having been prosecuted jointly against the administrator of the deceased partner and the surviving partner, and a joint verdict having been returned against both, since the action had abated as respects the one, no judgment could rightfully be rendered on such verdict over a motion in arrest against both, even if it could have been at the plaintiff's election against the survivor. Allen v. Wheatley, 3 Blackf. 332; Palmer v. Crosby, 1 id. 139; Everroad v. Gabbert, 83 Ind. 489, and cases cited:

After the death of Luther W. Hess was suggested on the record, the case stood to all intents and purposes in legal contemplation, as a case against the surviving defendant alone. The proceedings thenceforth, so far as they treated the case as an action against two, were all erroneous; and the verdict having been returned against two, in an action to which in contemplation of law there was but one defendant, it was so radically defective as that no judgment could be pronounced upon it over a motion in arrest. The court is bound to arrest the judgment where there is such error appearing on the face of the record as vitiates the proceedings. Ordinarily the objection should be taken by a motion for a venire de novo. But as upon the whole record, including the verdict, no judgment could properly be rendered, we think the motion in arrest was well taken.

It was shown that after the plaintiff had been discharged by the surgeons as not requiring further at

was.

tention from them, he with his son and one Priddy, called upon Luther W. Hess, in the absence of Frank C., and engaged him in conversation. Neither the purpose in going nor the conversation while there had any relation to the further treatment of the plaintiff, but rather to the condition of the shoulder as it then This conversation having taken place in the absence of Frank C., objection was made to the introduction in evidence of alleged admissions and declarations made by Luther W. during its progress. The declarations of one partner are admissible in proper cases against the firm on the ground that in such cases the law implies an agency on the part of the one to bind the firm in transactions relating to its business. In order that such declarations may be admitted they must have been made in the course of the partnership business and with respect to a transaction pertaining to its business.

In this respect declarations of a partner, made in the absence of the other partners, stand upon the same footing with the declarations of other agents. Abb. Tr. Ev. 218; Hahn v. St. Clair, etc., Co., 509 Ill. 456; Graham v. Henderson, 35 Ind. 195; King v. Barbour, 70 id. 35; La Rose v. Logansport Bank, 102 id. 332.

Neither the admissions nor declarations of Luther W. Hess made after the event to which they referred had transpired could properly be received in evidence to bind Frank C. Hess, unless they were so immediately connected with the event as to become part of the res gesta. Railroad Co. v. Theobald, 51 Ind. 246. If the one had administered an improper prescription, or neglected to do something proper, the other would have been answerable for his acts or omissions. But for opinions expressed by the one, in the absence of the other, after the employment was at an end, as to the propriety of the treatment or the results attained, the absent partner is not responsible. The rule is especially applicable in cases involving negligence, where no common motive is imputable. Ordinarily the declarations of one, in the absence of the other, in such cases are not admissible. 1 Greenl. Ev., § 111, aud notes.

Over the objection of the administrator, the plaintiff was permitted to testify as to matters occurring, and conversations had with the deceased, during the course of the reduction and treatment of the dislocated shoulder. The plaintiff was admitted to testify, on the ground that the deceased had previously testified on a former trial, and that his testimony was available to be used as evidence for the administrator. It is claimed that the testimony was admissible under the proviso of section 498, Rev. St. 1881. This section relates to suits or proceedings in which an executor or administrator is a party.

As it results from the conclusion already reached that when the death of Luther W. Hess was suggested upon the record, the action at once abated as to him and his personal representative, it also follows that his administrator was not, and could not be made a party to the suit. The question sought to be made is therefore not properly before us for decision. As presented the question has relation to the admissibility of the plaintiff's testimony on the assumption that the administrator was a party to the suit. But as he was not a party to the action, we need not decide what testimony would or would not have been competent in case he had been. In other words we will not assume a state of facts which did not exist, and decide the question on the assumption that such facts did exist. The only pertinent inquiry in this connection, in the event of another trial against the surviving partner, is the limitations under which admissions by one partner, in the absence of the other, may be given in evidence. To what has been already said on that subject, we have nothing to add.

During the progress of the trial, the plaintiff called a number of surgeons as witnesses to testify in his behalf as experts. To each of these a hypothetical question of substantially the same import was put, and upon the supposed facts embraced in the question the witness was asked whether or not there had been a reduction of the dislocation accomplished by the attending surgeons, provided the state of facts supposed existed.

In answer to the question thus put, one of the experts answered, over objection, as follows: "I would say that during the time of the continuance of these surgical facts and landmarks that there was a dislocation about that time for a long or short while." Another said, in answer: "Well you have described a case and the symptoms of an ordinary dislocation." The objection which is urged to the hypothetical question is that it embraced, among other things, statements of what the attending surgeon is supposed to have said to the patient during the process of reduction and treatment concerning the cause of certain depressions and enlargements about the dislocated joint. It is argued that the effect of the question was to extract from the witness an opinion as to the truth of what the surgeon said to the patient, and that thereby the witness was called upon to invade the province of the jury. Upon careful examination of the question propounded we do not think it subject to the objection urged. We cannot discover that the question calls upon the expert to determine whether the statements of the attending surgeon were true or false. Rather it asks the witness to assume that the statements made, with all the other facts supposed, are true, and upon the whole question give his opinion as an expert whether a reduction of the dislocated joint was accomplished. We think the question was within the rule, and that in any event the auswers worked no harm to the defendants. Goadwin v. State, 96 Ind. 550; Burns v. Barenfield,84 id.43. Some question is made concerning the sufficiency of the evidence, but as for the reasons already stated a reversal of the judgment must result, no good purpose can be subserved by examining and passing upon the evidence. In reference to the instructions, upon some of which error is predicated, it is claimed they are not properly in the record. However this may be, as they involve questions of no essential importance to the case, and such as can hardly again arise, we do not inquire whether they are in the record or not.

For the errors indicated the judgment is reversed, with costs, with instructions to the court below to dismiss the action as to Walter A. Boor, administrator, etc., and to set aside the judgment and grant a new trial to Frank C. Hess, and for further proceedings in accordance with this opinion.

Elliott, J., dissenting. I think there may be damages recovered for a breach of contract although in estimating the damages it may be necessary to estimate injuries to the person; as for instance, if a steamengine should be sold under a fraudulent warranty, but because of a defect constituting a breach of the warranty the purchaser should have his arm blown off, this fact might be taken into consideration in computing damages. It is my opinion that the statute applies only to cases of pure torts, unmixed with any element of contract, and does not deny a recovery for

damages resulting from a breach of contract, although

the damages may arise from a bodily injury. I concur however in the general conclusion reached, for the reason that I regard the complaint as in tort and not in contract. If the complaint had been in contract, then as it seems to me, the injury to the person of the plaintiff arising from a breach of the implied contract to treat the arm with skill and care might have

constituted an element in the admeasurement of damages.

Zollars, J., concurs in the opinion of Elliott, J.

NEW YORK COURT OF APPEALS ABSTRACT.

EVIDENCE-CROSS-EXAMINATION-DECEASED PARTY -CODE, § 829.-A party cannot contradict evidence given by his adversary's witness as to a transaction with a deceased person which he drew out in crossexamination, and where it appears that such crossexamination was not required in order to explain the witness' direct evidence. Evidence drawn out on cross-examination under such circumstances will not open the door to the introduction of evidence of conversations had with a deceased person. Corning v. Walker. Opinions by Miller, J. [Decided Nov. 24, 1885.]

NEGLIGENCE-CONTRIBUTORY--WHEN COURT SHOULD NONSUIT.-Where upon the trial of an action for personal injuries, alleged to have been caused by defendant's negligence, it becomes manifest that the injury would not have occurred but for the plaintiff's carelessness, it is the duty of the trial court to nonsuit the plaintiff. Davenport v. Brooklyn City R. Co. Opinion by Earl, J.

[Decided Nov. 24, 1885.]

UNITED STATES SUPREME COURT ABSTRACT.*

MUNICIPAL BONDS-GENUINENESS OF OFFICER'S SIGNATURE-DUTY OF PURCHASER.- Purchasers of municipal securities must always take the risk of the genuineness of the official signature of those who execute the paper they buy. This includes not only the genuineness of the signature itself, but the official character of him who makes it. Anthony v. County of Jasper, 101 U. S. 699. But in the view we take of this case, it is not material whether the bonds were signed before or after Bogert had ceased to be collector. The board of chosen freeholders of the county never directed nor permitted their issue. The law under which it derived all its powers provided only for the issue of bonds to meet the indebtedness from those then about to mature.

All such maturing bonds had been surrendered for the new bonds, except for a small amount, which was paid in cash. The power of the board under the law was then exhausted. Any further issue was beyond its authority. Unless therefore there is something in connection with their issue to estop the board from contesting their validity, they can in no manner bind the county. This is not a case where there existed in the board a general power to issue negotiable securities of the county, so that parties would be justified in taking them when properly executed in form by its officers. It is a case where there was no power, except as specially delegated by law for a particular purpose. All persons taking securities of municipalities having only such special power must see to it that the conditions prescribed for the exercise of the power existed. As an essential thority to issue them must appear. If such authority preliminary to protection as a bona fide holder, au

did not exist the doctrine of protection to a bona fide purchaser has no application. This is the rule even with commercial paper purporting to be issued under a delegated authority. The delegation must be firs established before the doctrine cau come in for con

*Appearing in 6 Sup. Ct. Rep.

sideration. See case of Floyd Acceptances, 7 Wall. 676; Marsh v. Fulton Co., 10 id.676; Mayor v. Ray, 19 id. 469. There is a class of cases where recitals in obligations are held to supply such proof of compliance with the special authority delegated as to preclude the taking of any testimony on the subject, and estop the obligor from denying the fact. These have generally arisen upon municipal bonds, authorized by statute upon the vote of the majority of the citizens of a particular city, county, or town, and in which certain persons or officers are designated to ascertain and certify as to the result. If in such cases the bonds refer to the statute, and recite a compliance with its provisions, and have passed for a valuable consideration into the hands of a bona fide purchaser, without notice of any defect in the proceedings, the municipality has been held to be estopped from denying the truth of the recitals. The ground of the estoppel is that the officers issuing the bonds and inserting the recitals are agents of the municipality, empowered to determine whether the statute has been followed, and thus bind the municipality by their determination. See of the late cases on this point, Northern Bank of Toledo v. Porter Township Trustees, 110 U. S. 608; and Dixon Co. v. Field, 111 id. 83. In the bonds of Bergen county there are no recitals. The bank in taking them was bound to ascertain whether or not they were authorized. Had it examined the register of the bonds issued to take up the matured bonds, which was a public record of the county and open to inspection, it would have learned that the bonds which it received were not of the number thus authorized. Content to rely upon the unsupported representations of Bogert, it cannot now cast upon the county the consequences of its own mistake. Buchanan v. Litchfield, 102 U. S. 278. Merchants' Ex. Nat. Bank v. County of Bergen. Opinion by Field, J.

AS TO COURSE OF BUSINESS.-Evidence of the usage and custom of a bank as to the presentment of drafts for acceptance and payment is admissible to corroborate the testimony of a cashier as to the presentment for acceptance of a particular draft. The evidence of the custom and usage of the bank was not objected to when taken, nor when the interrogatories were proposed, and we think it was competent even if it had been objected to. It was competent for the purpose of sustaining and corroborating the conviction and belief of Luria, the cashier, that the draft had been presented for payment. His conviction and belief were undoubtedly based on this custom and usage, and were of value only so far as such custom and usage were invariably maintained and pursued. A bank is a quasi public institution. Its officers have regular and set duties to perform, directly affecting the financial transactions of the entire public. It is essential to the public interest that these duties should be performed with invariable certainty and exactness. The business community relies upon such performance, and at least after the lapse of a considerable time, it should be presumed that these duties have been performed and business done in accordance with the custom and course of business of the bank. The degree of exactness with which they have been performed by a particular bank is matter of proof, depending upon the custom aud course of business of that bank, and is matter of consideration for the jury. Of course proof of such custom and course of business cannot dispense with documentary evidence when such evidence is requisite in law to verify the act done, or to make it complete, such as protest and notice of dishonor, when these are necessary; and in all cases it is the province

of the jury to determine, under all the circumstances of the case, the weight to be given to the evidence. See Rosenthal v. Walker, 111 U. S. 193; and Huntley v. Whittier, 105 Mass. 391, there cited. This kind of presumptions of fact, referable to the consideration of a jury, is well known and frequently recognized in the law. Such presumptions are founded upon the ex perience of human conduct in the course of trade and business, under the promptings of interest or public responsibility. "Under this head," says Mr. Green. leaf, "may be ranked the presumptions frequently made from the regular course of business in a public office. * ** If a letter is sent by the post, it is presumed from the known course in that department of the public service, that it reached its destination at the regular time, and was received by the person to whom it was addressed if living at the place, and usually receiving letters there." He adds: "The like presumption is also drawn from the usual course of men's private offices and business, where the pri mary evidence of the fact is wanting.' 1 Greenl. Ev., § 40. In support of these propositions, the author refers to many authorities, which seem to be fully in point. The same general propositions are laid down by Mr. Taylor, in his treatise on Evidence, copying as he usually does the language of Prof. Greenleaf. He adds the following illustrations derived from adjudged cases in England: "If letters or notices properly directed to a gentleman be left with his servaut, it is only reasonable to presume, prima facie, that they reached his hands. MacGregor v. Keily, 3 Exch. 794. The fact too of sending a letter to a post-office will in general be regarded by a jury as presumptively proved, if it be shown to have been handed to or left with the clerk whose duty it was in the ordinary course of business to carry letters to the post, and if he can declare, that although he has no recollection of the particular letter, he invariably took to the post-office all letters that either were delivered to him, or were de. posited in a certain place for that purpose." Referring to Skilbeck v. Garbett, 7 Q. B. 846; Hetherington v. Kemp, 4 Camp. 193; Ward v. Londesborough, 12 C. B. 252; Spencer v. Thompson, 6 Ir. Com. L. R. 537, 565. See 1 Tayl. Ev., § 148. We may also refer to the case of Dana v. Kemble, 19 Pick. 112, in which it was held, Chief Justice Shaw delivering the opinion, that where it was the usage of a hotel to deposit all letters left at the bar in an urn kept for that purpose, whence they were sent frequently throughout the day to the rooms of the different guests to whom they were directed, it will be presumed that a letter addressed to one of the guests and left at the bar was received by him. And in Barker v. N. Y. C. R. Co., 24 N. Y. 599, it was held admissible to show the regulations of the corporation and the customs of its agents, in respect to giving notice to passengers of the necessity of their changing cars in order to reach a given station, to corroborate the testimony of the conductor in that regard; the Court of Appeals, by Sutherland, J., remarking: "This evidence would tend to corrobate Budd upon the principle that the business of the defendant is a sort of public business, and their employees a kind of public officers; and that the presumption is that they would perform their duties according to the regulations of the busines." further as to presumptions of this kind, 2 Daniel Neg. Inst., §§ 1054, 1055, and the authorities there cited. The cases of Musson v. Lake, 4 How. 262; and U. S. v. Ross, 92 U. S. 281, are relied on by the defendants in error to show that the kind of presumption to which we have referred cannot be resorted to for the purpose of proving a distinct fact necessary to the case which it is adduced to support. We do not think that those cases impugn the doctrine we have laid down. In Musson v. Lake the official certificate of a notary that

See