Uhl v. Bingaman et al. his co-defendants, or some of them, and liable upon the certificate, and also gave a special instruction, to the effect that notice to the plaintiff, after he had become a customer of the bank, of the subsequent retirement of any of the partners, would not be presumed, but must be proved by the defendant by a fair preponderance of the evidence. It is claimed that this charge is wrong in itself, and inconsistent with the general charge that the burden was on the plaintiff to show the liability of the defendants. We do not think so. There can be no doubt that the general burden of the issue was, as the court instructed, on the plaintiff; but, in order to show his right of recovery against the appellant, it was only necessary to show that the appellant had been a member of the firm; that, knowing the appellant's connection, he had dealt with the bank; that the business had been carried on without change in the name of the firm, and was being so conducted at the time he made the deposit which the action was brought to recover. He was not bound to offer evidence of the negative fact, that he had not received notice of the appellant's withdrawal. Before the enactment of the law making parties witnesses, it would apparently have been impossible, under ordinary circumstances, for him to have made such proof, and the change in the law, as to the competency of parties to testify, does not affect the question. The suit might be by or against the administrator of either party, or the plaintiff might, though alive, be incapacitated by sickness, or otherwise, to testify. Besides, as we have seen, the proof of notice may consist in circumstantial evidence, common rumor, publication in newspapers, and the like; and, if the plaintiff has the initiative of the proof on the subject, then he must, besides showing that he had not received express or direct notice, go further and show that the circumstances attending the withdrawal, and subsequent occurrences, were not such as to warrant an inference of his having been informed of the dissolution or retirement. The law imposes on the reVOL. 78.-24 Hall et al. v. Bishop. tiring partner the duty of communicating notice of the fact to former customers. He therefore necessarily has, or ought to have, the means of showing that he did what he was bound to do in order to escape continued liability; and when the question of his liability, in a particular case, is narrowed down to the single inquiry, whether the requisite notice was given, the burden of the proof ought plainly to be upon him who was required to give the notice. Other questions have been discussed by counsel, but, so far as they are important, they are covered by what has already been said in this case and in the case of Uhl v. Harvey, supra. Judgment reversed, with costs, and with instructions to grant to the appellant a new trial. No. 8315. HALL ET AL. v. BISHOP. EVIDENCE.-Record.-Copy.-A record of another State, not judicial, may be proved by a sworn copy. SAME.-Tax List.--Fraudulent Conveyance.-The original sworn list of property made for taxation is admissible against the party making it, and a certified copy is not necessary. Such list is not irrelevant in a suit brought against him to set aside a conveyance on the ground that it was made to defraud his creditors, if it tends to show that he did not receive for the conveyance the consideration claimed. SAME.-Officer.-Deputy.-The official character of a person may be proved by parol. So also that he was the deputy of an officer. From the Franklin Circuit Court. W. H. Bracken and T. H. Smith, for appellants. H. Berry, Jr., F. Berry, J. F. McKee and D. W. McKee, for appellee. ELLIOTT, C. J.-Suit to set aside a conveyance of real estate upon the ground that it was made for the purpose of de frauding creditors. Hall et al. v. Bishop. Appellee was the plaintiff below, and judgment was rendered in his favor. The only questions properly presented are those arising upon the error alleged upon the ruling denying a new trial. Appellants moved the court to suppress parts of a deposition of a witness. This motion was overruled, and of this ruling complaint is here made. The defendants below and appellants here were charged with having fraudulently colluded together to defraud the creditors of one of them, John Hall. The evidence objected to was as to a tax list made out and verified by John Hall, in the State of Ohio. It is said that this list was not admissible for any purpose. We think otherwise. It was the sworn statement of one of the parties to the alleged fraudulent conspiracy, and contained matters relevant to the issues. It showed the property owned by the party, and tended to show whether he had or had not received the consideration which it was claimed was paid him by the persons to whom he conveyed the real estate. Sherman v. Hogland, 73 Ind. 472. It is insisted that the copy of the tax list appended to the deposition was incompetent. The argument is, that either the original list or a certified copy should have been produced. The document was under the control of a witness not within the jurisdiction of the court, and a sworn copy was, therefore, not incompetent. Thom v. Wilson's Ex'r, 27 Ind. 370. The provision in the statute of the United States, that certified copies of records may be introduced in evidence, does not preclude the party from proving the instrument by a sworn copy. The statute does not abridge the common law right to prove by an examined and sworn copy, but adds a more convenient and less expensive method of proof. Wharton Ev., section 98. Counsel for appellants are in error in placing a tax list upon the same footing as a judicial record. It is not such a record, nor does it in any particular resemble the record of a court. It may be regarded in some respects as a public document, Hall et al. v. Bishop. but not as a judicial record. Its force in such a case as the present is not, however, due to its character as a public document, but to the fact that it is the sworn declaration of a party in interest. We are not called upon to decide anything as to whether a judicial record can or can not be proved in any other manner than by the attestation prescribed in the act of Congress. The court permitted Nicholas V. Johnson to testify that he was deputy auditor of Franklin county, and this, appellants say, was error because his official character should have been proved by the record. The appellants are wrong. It was not necessary to produce the record of Johnson's appointment. An objection of the same general nature is urged against the action of the court in permitting an assessor to state his official position, and is equally without force. Original assessment lists, made out and sworn to by two of the appellants, were introduced in evidence, and this is asserted to have been erroneous, because certified copies are the only competent evidence. There is nothing in this argument. Either the originals or certified copies are admissible. Iles v. Watson, 76 Ind. 359. The grantor's admissions made prior to the execution of the conveyance were properly admitted. He was, according to the theory of the complaint, and as the evidence tended to show, acting in concert with his grantees, and his declarations were admissible against them. At all events, the declarations were admissible against the party by whom they were made, and it would have been error to exclude them. We must presume, in the absence of anything to the contrary, that the evidence was properly considered and applied. We can not disturb the finding upon the evidence, for, although not of a very satisfactory character, there is evidence supporting the finding. Judgment affirmed. Pittsburgh, Cincinnati and St. Louis Railway Company v. Yundt et ux. No. 7819. PITTSBURGH, CINCINNATI AND ST. LOUIS RAILWAY COM PANY v. YUNDT ET UX. NEGLIGENCE.-Evidence.-Railroad.—In a suit against a railroad company, for personal injury to a passer-by, by moving cars frightening the plaintiff's team, at a street crossing of a railroad where there is much travel upon the street, evidence for the plaintiff, showing that the company had, to the plaintiff's knowledge, kept a watchman at the crossing to give signals of danger, until a short time before the accident, when, without the plaintiff's knowledge, it withdrew him, and that, as the plaintiff approached the crossing, he was careful to look for such signals and saw none, is admissible, for the purpose (with other circumstances) not only of showing negligence by the defendant, but also of showing the plaintiff was free from contributory negligence. From the Marion Superior Court. T. A. Hendricks, C. Baker, O. B. Hord and A. W. Hendricks, for appellant. R. Hill and J. W. Nichol, for appellees. WORDEN, J.-Action by the appellees against the appellant to recover damages for an injury suffered by the female plaintiff, in consequence of the alleged carelessness and negligence of the defendant in running its train of cars across a public street of the city of Indianapolis, along which street the plaintiffs were passing with a horse and buggy, whereby the horse became frightened and ran away, doing the injury. Trial by jury; verdict and judgment for the defendant. On appeal to general term the judgment was reversed, and from the judgment of reversal the defendant appeals to this court. On the trial there was evidence tending to show that Noble street, running north and south, is a much travelled street, and is crossed by the defendant's railroad in a populous part of the city; that the defendant had erected a building just north of its south or main track and just east of the east line of the street, which obstructed the view of trains approaching from the east from persons on Noble street north of the line |