have a right of action against the transferees, which the creditors alone can bargain away.-Dimick v. Register, Ala., 9 South. Rep. 79.

103. OFFICER-Qualification.-Since the appointee had no knowledge of his appointment until after the receipt of his commission, his failure to qualify within the 15 days from the commencement of his term was not a "refusal or neglect" to qualify, within the meaning of Pol. Code Cal. § 996, which provides that an office becomes vacant on the "refusal or neglect" of the appointee to file his official bond within the time prescribed by law.-People v. Perkins, Cal., 26 Pac. Rep. 245. 104. PARTNERSHIP. An individual partner cannot maintain an action at law for the conversion of partnership property by a third person with the consent of his copartner, since until his actual interest in the partnership has been determined, his damages cannot be ascertained.—Sindelar v. Walker, Ill., 27 N. E. Rep. 59. 105. PARTNERSHIP-Action Against.-Under the Lou · isiana jurisprudence, by which a partnership is a distinct legal entity, capable of being sued when the partners are joined with it, two partners of a commercial partnership domiciled in that State may be sued with the partnership on a firm contract without joining the third, who is a non-resident.-Martin v. Meyer, U. S. C. C. (La.), 45 Fed. Rep. 435.

106. PARTNERSHIP- Mortgages. A partner has the right to give a mortgage on personal property to secure a partnership debt, and also to agree to its cancellation, and the other partner is not injured thereby.Phillip v. Trowbridge Furniture Co., Ga., 13 S. E. Rep. 19. 107. PAYMENT OF NOTE - Estoppel. - A promissory note being payable at a specified bank, the mere deposit of money in such bank, to be applied in payment of the note, does not constitute payment, the note not having been left there by the holder for collection or payment. The bank receives the money as the agent of the person depositing it.-St. Paul Nat. Bank v. Connon, Minn., 48 N. W. Rep. 526.

108. POWER-Revocation by Death.-A mortgage given as collateral security to a note containing a power of sale does not convey such an interest in the estate as to render the power irrevocable by the death of the mortgagor, under Code Ga. § 2183.-Wilkins v. McGehee, Ga., 13 S. E. Rep. 84.

109. PRINCIPAL AND AGENT.-One who negotiates the sale of land, delivers the deed, and receives the pur. chase money, is the agent of the grantor, and his acts in surveying and pointing out to the purchaser the land intended to be included in the deed are the acts of the grantor.-Bruce v. Washington, Tex., 15 S. W. Rep. 1104.

110. PRINCIPAL AND AGENT-Implied Authority.-Au agent who has possession of goods belonging to his principal, with authority to sell, has an implied authority to receive payment therefor.- Bailey v. Pardridge, Ill., 27 N. E. Rep. 89.

111. PRINCIPAL AND AGENT- Misconduct of Fellowagent.-An agent employed by the trustees of an estate to collect the income is not chargeable for the embez zlement of the funds of the estate by his assistant, employed by the consent and with the authority of the trustees, as the two are fellow-agents. Emlen, Penn., 21 Atl. Rep. 663.

Segeant v.

112. PRINCIPAL AND AGENT-Ratification.-The salesman who is also the foreman in the lumber yard of a lumber dealer has no authority to execute a release under seal, when the money is not paid of a mechanic's lien filed by his employer.-Deacon v. Greenfield, Penn., 21 Atl. Rep. 651.

113. QUIETING TITLE-Fraudulent Conveyances.-It is no defense to a sult to have a deed absolute on its face declared a satisfied mortgage, and canceled, that such deed was given with intent to hinder the complainant's other creditors.-Halloran v. Halloran, Ill., 27 N. E. Rep.

82.

114. RAILROAD COMPANY-Grant.-Land granted to a railroad company, so long as the same should be used

"for shops, depots, and other conveniences and fixtures necessary for said company," use of the land for the building and maintenance thereon of a track or tracks for the purpose of conveying freights to private parties, the storage of cars, and other like uses, would not be a compliance with the terms of the grant.-Ga. R. R. & Banking Co. v. Mayor, etc. of Macon, Ga., 13 S. E. Rep. 21.

115. RAILROAD COMPANIES-Injury-Due Care.-A con. ductor who, without protest, while another train is overdue and expected from the opposite direction, starts out with his train in violation of the rules of his company, with which he is familiar, shows want of due care, which will preclude, his recovery for injuries to himself in a collision, though he may be acting under the negligent orders of his superior officer, whom he is bound to obey, or lose his position.-Westcott v. New York, etc. R. Co., Mass., 27 N. E. Rep. 10. 116. RAILROAD COMPANIES Injury to Employee. Where an engineer was injured by the negligence of a conductor of another train, and there was no evidence that the engineer had any opportunity to learn that the conductor was incompetent, it is not error to refuse a charge that, if the engineer had an equal chance with the railroad company to know the character of the conductor and the danger of his employment, and failed to notify the railroad company, the latter is not liable.Bonner v. Whitcomb, Tex., 15 S. W. Rep. 899.

-

117. RAILROAD COMPANIES - Killing Stock-Counterclaim. In an action against a railroad company for negligently running over and killing plaintiff's cow, damages sustained by the engine on account of striking the cow cannot be pleaded as a counter claim, on the theory that plaintiff negligently permitted the cow to go on the track.-Lake Shore, etc. Co. v. Van Auken, Ind., 27 N. E. Rep. 119.

118. RAILROAD COMPANIES Stock Killing Cases."Depot Grounds."-In an action against a railroad company for injury to oxen, claimed by defendant to have gotten on its track in its depot grounds, an instruction that depot grounds are "the place where passengers get on and off trains, and where goods are loaded and unloaded, and all ground necessary and convenient, and actually used for such purpose by the public and the railroad company" is proper.-Plunkett v. Minneapolis, etc. Ry. Co., Wis., 48 N. W. Rep. 519.

119. RAILROAD COMPANIES-Trespasser on Track.—A person riding on a railroad velocipede over and on the track of a railroad company, without having obtained its consent for that purpose, is a trespasser, and, in the event of injury resulting therefrom no action can be maintained against the company, unless wilful negligence on its part, which could have been avoided is proven.-Craig v. Mount Curbon Co., U. S. C. C. (W. Va.), 45 Fed. Rep. 448.

120. RECEIVER-Appointment.-In proceeding for the appointment for receiver of an insolvent railroad com. pany, one who is a party to or counsel in the cause, or who has been an officer of the company, will not be made the permanent receiver.- Finance Co. v. Char· leston etc. R. Co., U. S. C. C. (S. C.), 45 Fed. Rep. 436.

121. REMOVAL OF CAUSES-Appearance.-A special appearance merely to file a petition and bond for removal does not preclude the defendant from subsequently moving to quash the service of process.—Reifsnider v. American Imp. Pub. Co., U. S. C. C. (Mo.), 45 Fed. Rep. 438.

122. RES ADJUDICATA-Burnt-record Act.-The Illinois burnt-record act provides that on a petition to establish title, of which the record evidence has been burned, the court may determine in whom the title is vested Held, that where a decree declared to be in the peti tioner, such decree estopped the defendants therein from claiming title by limitation beginning from a date prior to the decree.-Higgins v. Mulvey, Ill., 27 N. E. Rep. 58.

123. SALE-Conditional.-A contract for the sale of a soda water apparatus, to be paid for partly in cash and

partly in notes maturing monthly, provided that the title should remain in the seller, until all the notes were paid and that on the non-payment of any of them at maturity the seller should have the right to take possession of the property. Held, that the taking possession of the property by the seller on the purchaser's default did not rescind the contract.-Tufts v. D'Arcambal, Mich., 48 N. W. Rep. 497.

124. SALES OF REAL ESTATE- Commission.-A real estate agent, employed generally to sell land, is entitled to the agreed commission en procuring a responsible and willing purchaser on the agreed terms, though the sale is not consummated on account of the principal's defective title.-Cheatham v. Yarbrough, Tenn., 15 S. W. Rep. 1076.

125. SPECIFIC PERFORMANCE-Shares of Stock.-As a general rule equity will not enforce specific perform. ance of contracts for the delivery of shares of stock; but when a purchaser has bargained for or taken an option upon such shares because they have to him a unique and special value, the loss of which could not be adequately compensated by damages at law, the chancellor, in the exercise of a sound discretion, may decree specific execution.-Bumgartner v. Leavitt, W. Va., 13 S. E. Rep. 67.

126. TAX SALE.-In 1885 the city of St. Joseph abandoned d its special charter organized under the general law: Held, under Gen. Stat. Mo., 1869, §§ 4715, 4728, that the city had power to sell at the tax sale of 1885 for the delinquent taxes of prior years as well as for those of that year.-State v. Tufts, Mo., 15 S. W. Rep. 954.

127. TAX SALE-Notice.- Under Sess. Acts. Mo. 1875, page 231, sec. 44, as to the posting of notices of tax sale: held sufficient for the certificate to show that the collector posted the notices three weeks before the sale and that it need not show that they remained posted for three weeks.-Lynch v. Donnell, Mo., 15 S. W. Rep. 927.

128. TENANCY IN COMMON.-Where one of several tenants in common of a farm was requested by some of his co-tenants to occupy the buildings in order to pre vent forfeiture of the insurance policy, which he did, and cultivated and pastured part of the farm, he was liable to two other co tenants who did not consent to such occupancy, for their share of the fair rental value.- Vass v. Hill, N. J., 21 Atl. Rep. 585.

129. TOWNS-Employment of Broker.-Under Rev. St. Ind., 1881, § 4488, providing that town trustees may ne gotiate and sell town bonds, the trustees can employ a broker to effect the sale.-Reed v. Town of Orleans, Ind., 27 N. E. Rep. 109.

130. TRIAL-Objections to Evidence.-Where a party makes no objections to evidence when it is offered and introduced, but examines the witnesses on the same subject, the question of its competency cannot be raised by a motion to strike out.-Newlon v. Tyner, Ind., 27 N. E. Rep. 168.

131. TRUSTEE-Expenses - Appeal.-Where a trustee appeals from the decree in a suit brought by him to construe the trust, his expenses in prosecuting such appeal are not chargeable to the trust-fund.-Sherman v. Leman, Ill., 27 N. E. Rep. 57.

132. TRUSTEE-Power to Confess Judgment.-A deed of conveyance to the grantee, his heirs and assigns, with full covenants of warranty and seisin, conveying lands to him, to be held in trust for the use and benefit of the grantor with power to control and convey and manage for the use of the grantor and for the payment of his debts, gives such trustee and attorney no power to confess judgment.-Hoppock v. Cray, N. J., 21 Atl. Rep. 624.

133. VENDOR AND VENDEE-Parol Contract-Boundaries.-Plaintiffs, through their chief engineer by a parol contract sold to defendant a 50-foot lot on a certain street Defendant made a partial payment, and took possession. A month later, at defendant's request, said engl. neer measured and staked off the lot, but by mistake embraced a foot on one side which did not belong to

plaintiffs and excluded a foot on the other side: Held, that the sale, and subsequent designation of the boundaries, were component parts of the contract, and defendant had a right to insist on a title in conformity therewith.-Tyson v. Eyrick, Penn., 21 Atl. Rep. 635.

134. WATERS AND WATER-COURSES - Boundaries on Rivers. Rights of riparian owners of land on the Ohio river extend to low water mark.-Brown Oil Co. v. Cald well, W. Va., 13 S. E. Rep. 42.

135. WIFE'S POWER TO CONTRACT-Surety-Estoppel.A married woman made personal application for a loan, and gave as security a mortgage upon her separate property, in which her husband joined. She received the money, but at once handed it to him. The mortgagee testified that she had no knowledge of any understanding between wife and husband that the money was being borrowed for the latter: Held, that the wife was estopped to deny the validity of mortgage.-Cummings v. Martin, Ind., 27 N. E. Rep. 173.

136. WILLS-Acceleration of Legacies.-A testator bequeathed his personal property to his wife for life, and provided that at her death certain specific legacies should be paid, and the residue should go to certain rel atives. The wife, having renounced the will, took onehalf the personal property absolutely: Held, that the specific legacies were thereupon payable in full at once, the wife's renunciation being equivalent to her death. -In re Vance's Estate, Penn., 21 Atl. Rep. 643.

137. WILLS-Compensation of Trustees.-In the absence of any special contract or stipulation therefor a trustee is not entitled to compensation for his services in executing the trust.—Buckingham v. Morrison, Ill., 27 N. E. Rep. 65.

138. WILLS-Construction.-A will, directing that the residue of the testator's estate "shall be divided by his executor, with full power to sell the same for the purpose of paying legacies or dividing and settling the estate," confers a power of sale that is mandatory.-- Venable v. Mercantile Trust of Deposit Co., Md., 21 Atl. Rep.

704.

139. WILLS-Construction.-A will devised property to the testator's widow "for and during the term of her natural life," directing that she carry on the farin, as he would have done if still living, and authorizing her and her son, as joint executors, to sell without order of court any part of the estate necessary to pay debts. It further provided that at the widow's death all his estate should be divided between their children, share and share alike: Held, that the widow took a life-estate, and the children a fee, subject to be divested, if a sale became necessary to pay debts.-Neeley v. Boyce, Ind., 27 N. E. Rep. 169.

140. WILLS-Construction.- Held, that under the terms of the will in land subsequently acquired by the testa tor the son and daughter took a vested remainder as tenants in common under Gen. Stat. Mo. 1865, p. 443, § 124.-Rodney v. Landeau, Mo., 15 S. W. Rep. 962.

141. WILLS-Construction-Remainders.-A will making different devises to two persons, and if "either die his share to go to the survivor," and if "both die the property to go to the nearest of kin," passes a fee to each, if living at the testator's death.-Goodwin v. McDonald, Mass., 27 N. E. Rep. 5.

142. WILLS-Construction- Rule in Shelley's Case.Though a devise to a feme covert for life to her sole and separate use, to the exclusion of her husband, gives her an equitable separate estate during coverture, it be comes a legal estate on her husband's death; so that, if a remainder were limited to the heirs of her body, the estates would be of the same quality, and an estate tail would result.-Shalters v. Ladd, Penn., 21 Atl. Rep. 596.

143. WRITS-Service.-Where the sheriff's return on a summons shows good service, and the defendant has appeared and filed an affidavit of defense, he cannot, on appeal, question the validity of the service.-MacGeorge v. Harrison Chemical Manuf'g Co., Penn., 21 Atl. Rep. 671.

ST. LOUIS, JUNE 12, 1891.

The Texas case of Delz v. Winfree, reported elsewhere in this issue, which asserts the doctrine that a right of action exists against one who maliciously induces a tradesman to refuse to sell goods to the plaintiff, by which damage ensues to the latter, is in line with the principles enunciated in the English cases of Lumley v. Gye, and Bowen v. Hall, where suits for damages were successfully maintained for malicious interference by a stranger with the performance of a contract. The Kentucky court, in a recent case (Chambers v. Baldwin), repudiated the doctrine, but the current of authority and the logic of the law bears strongly in its favor. The same reasoning may be effectually applied to both cases, viz: that every wrongful act which produces actual injury to another, such injury being its natural and probable consequence, is actionable. For a statement of the principles governing this class of cases, see note to Chambers v. Baldwin, page 275, current volume of this JOURNAL.

The United States Supreme Court recently adjourned until October, after rendering some important opinions and breaking all former records in the number of cases disposed of during the term, the number being 617, whereas heretofore it has never been able to get off of its docket more than 500. This, we have no doubt, results in part from the infusion of younger blood upon the bench and a corresponding dispatch of its business. It will probably happen that when the new federal appellate courts are organized and get to work, the docket of the supreme court will be measurably relieved and ultimately cleared

each term.

Several of the most important cases on the docket of that court have been decided within the past few weeks. Among them is the Kansas "Original Package" Case, the Buffalo Bank Case, the case of Pennsylvania v. The Pullman Palace Car Co., involving the VOL. 32-No. 24.

taxing the company on a basis proportionate to the total number of miles of railroad within the State over which the company's cars ran, compared with the total number of miles of railroad in the United States over which they ran. The court, in an opinion by Mr. Justice Gray, holds that the law is valid and constitutional, and not in violation of the interstate commerce clause of the federal constitution. They regard the law, as not a regulation of commerce, but as an equitable method of taxing the property within the State. The court also decided a case from Massachusetts, involving practically the same question as applied to the lines of the Western Union Telegraph Co. in Massachusetts, in the same

way.

A familiar line in one of Shakespeare's plays has helped the popular superstition, that when a man makes his will he is likely very soon to die. The statutes of some States (New York, for instance,) discriminate against death-bed wills, by prohibiting the bequeathing of money for religious purposes, unless the will be made more than a year before death. Yet people, who are not content with the disposition the law will make of the property they leave, persist in executing testamentary instruments at the last possible moment. An unusual ending was put to such an attempt the other day in a New Jersey town. A prominent and wealthy citizen was there dying in his bed. His will, hastily drawn, was placed before him, and a pen put into his hand with which to make the signature of his name, or subscription mark upon the paper. He was asked if it was his will, and assented. He made an effort to write. One stroke was accomplished, when his head sank upon the pillow, the pen dropped from his hand, and his heart ceased to beat. He was dead in the sight of the witnesses. This was in New Jersey, and the point, whether or not the will was executed, is for the courts of that State to decide. In some States the case would be a very doubtful one. It might depend upon the point whether the single stroke of the pen actually made was the "subscription" which the deceased intended to make, whether he had completed the subscription of the will when death palsied his

hand. At any rate the occurrence offers one more warning to will-makers, to accomplish their testamentary intentions while in full health and capacity.

NOTES OF RECENT DECISIONS.

HUSBAND AND WIFE WIFE'S SEPARATE ESTATE LIABILITY FOR NECESSARIES.- The Supreme Court of Missouri, in Bedsworth v. Bowman, 15 S. W. Rep. 990, decide that under Rev. Stat. Mo. 1879, § 3296, which provides that the wife's personal property shall be her separate property, and shall not be liable to be taken for the debts of the husband, but such property shall be subject to execution for any debt of her husband for necessaries for the wife or family, a wife's separate property cannot be seized on execution under a judgment against the husband alone, even though the judgment was for necessaries. McFarlane, J., says, inter alia: It may have been within the power of the legislature to have made provision that the property of the wife, in so far as it might be required in the support of the family, could be taken under process against the husband alone. Such a meaning is so at variance with the evident intent of this act that it cannot be incorporated into it by implication. When all parts of an act are consistent with each other, and the intention is plain and unambiguous, we are not at liberty to go outside the law to seek an intent more in accord with our preconceived views than is manifest from the plain terms of the statute itself. State v. Gammon, 73 Mo. 421; State v. Hays, 78 Mo, 600. There is nothing remarkable or unusual in the principle incorporated into the law under this legislation, when viewed from an unprejudiced stand-point in regard to the domestic relations. The husband is and ever has been, under certain conditions, liable for any debt created by the wife for necessaries for herself and family. Why should not the wife be also for such debts created by the husband? No reason can be given where the wife owns the property. It was never held that the husband had only such a qualified interest in his own property that it could be taken under execution against the wife. To collect from the husband a debt contracted by the wife for necessaries no one would think for a moment of doing so by legal process against the wife alone. Formerly the husband was liable for the antenuptial debts of the wife. To satisfy such liability the legal process ran against the husband, and not the wife alone. The principle in these cases is not different from the principle recognized and enjoined by this statute. The wife being vested with the absolute control of her property, free from any interference on the part of the husband, could it be taken from her without due process of law? No such construction should be given the statute as would render it of doubtful constitutionality. The right of protection in the enjoyment of private property is no less

sacred because owned by a married woman. "In judicial proceedings the law of the land requires a hearing before condemnation, and judgment before dispossession." Cooley, Const. Lim. 436. "By the law of the land' is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." Mr. Webster, in Dartmouth College Case. Though section 3296 does not declare that the wife shall be notified, yet the law itself will imply that notice must be given as the sine qua non of jurisdiction and of judgment. Without notice no one can be passed upon either as to person or estate. Laughlin v. Fairbanks, 8 Mo. 367; Wickham Adm'r v. Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152; Ray. Co. v. Barr, 57 Mo. 290; Wells, Jur. § 82. Though a married woman's separate estate in equity could not be charged in consequence of her note given unless she be made a party to the proceeding which would seek to enforce the charge created by a decree, so by parity of reasoning her statutory separate estate cannot be charged without she be made a party to the proceeding which seeks to enforce such statutory charge. Indeed, the argument is stronger in favor of her being made a party to the latter proceeding than to the former, because in the former it was her own act which makes the charge, and lays the foundation for the decree; while in the latter it is done by another person; it may be, without her knowledge or consent, and without the existence of the facts necessary to create the charge. In the States of Iowa, Illinois, Alabama, Pennsylvania, and Mississippi are statutes similar to the one under consideration. Though many cases involving the construction of these statutes have been reported, none has been found in which an attempt was made to charge the wife or her property without making her a party, and giving her an opportunity to be heard. This argues that the wife is, by the courts of those States, regarded as a necessary party to a suit in which her property rights are involved. In Pennsylvania and Alabama the courts have repeatedly decided that both the pleading and the evidence must show a case of the wife's liability under the statute. Childress v. Mann, 33 Ala. 207; Sawtelle's Appeal, 84 Pa. St. 310; Hoff v. Koerper, 103 Pa. St. 396. In a case in Iowa the husband had given his note for necessaries, payable at a future day. The court held that the cause of action accrued against both husband and wife at the maturity of the note. There was a cause of action against the wife. Lawrence v. Sinnamon, 24 Iowa, 80. If the husband bought a bill of groceries, professedly as necessaries for the wife and family, but in reality for another purpose, it might be very doubtful, on general prin. ciples, whether he could charge her separate statutory estate for such professed necessaries. Bank v. Laveille, 52 Mo. 380; Morrison v. Hancock, 40 Mo. 565; Deardorff v. Everhartt, 74 Mo. 38. Not a single precedent, it is believed, can be found in the whole range of equity jurisprudence where a married woman's separate estate has been charged by a decree unless she was made a party to the proceeding, notwithstanding she signed the note, and notwithstanding her hus band signed it with her. Riddick v. Walsh, 15 Mo. 519. There are as many issuable facts to be determined in a suit to subject her statutory separate estate to sale under execution for necessaries purchased by the husband for herself and family, as are ordinarily necessary to charge her separate equitable estate, for a debt of her own creating, by a decree in equity. In the former, before her property can be aken under execution, it must be shown that a debt

was created by the husband; that it was for necessaries, not for the husband, but for herself and family, and that the estate to be subjected to sale is her statutory separate property. If the wife is to be deprived of a hearing, who is to be the judge of her liability,the husband, the creditor, or the executive officer? The husband may collude with the creditor to subject her property to the payment of his debts, and thereby preserve his own. The property may be taken under process against the husband, and disposed of without her knowledge. After her property has been seized under execution, she may not be able to avail herself of the remedies afforded by the law on account of inability to give the bond required. Her rights and interests alone are to be affected, and she is entitled to a hearing before, and not after, judgment. While we do not regard it of much practical importance, in view of the present statutes respecting the rights and liabilities of married woman, we deem it proper to say that we do not regard the statutory estate of the wife as being of the same character as was her equitable separate estate at common law, which could only be charged by a decree in equity.

EVIDENCE-SECONDARY EVIDENCE -WHEN ADMISSIBLE-DILIGENCE. Of the diligence required to be shown by a party in the search for an original writing, in order to admit of secondary evidence of its contents, the Supreme Court of Oregon, in Wiseman v. Northern Pac. R. Co., 26 Pac. Rep. 272, says:

No precise rule has been or can be laid down as to what shall be considered a reasonable effort, but the party alleging the loss or destruction of the document is expected to show "that he has in good faith exhausted in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him." 1 Greenl. Ev. § 558; Simpson v. Dall, 3 Wall. 460; Johnson v. Arnwine, 42 N. J. Law, 451; Kelsey v. Hanmer, 18 Conn. 310. Thus, in Mariner v. Saunders, 5 Gilman, 117, the court say: "From the nature of the subject there is some difficulty in laying down a general rule defining the extent and vigilance of the search which a party must make before the court may conclude that the paper is destroyed or lost." As a general rule, however, we may say that when, from the ownership, nature, or object of a paper, it has properly a particular place of deposit, or where, from the evidence, it is shown to have been in a particular place, or in particular hands, then that place must be searched by the witness proving the loss, or the person produced into whose hands it has been traced. The extent of the search to be made in such place or by such person must depend in a great degree upon the circumstances. Ordinarily it is not sufficient that the paper is not found in its usual place of deposit, but all papers in the office or place should be examined. On the whole, the court must be satisfied that the paper is destroyed, and cannot be found. It is true the party need not search every possible place where it might be found, for then the search might be interminable, but he must search every place where there is a reasonable probability that it may be found." This rule is founded on reason and justice, and to require any less degree of diligence would be to efeat the object of reducing agreements to writing.

As was said in Rankin v. Crow, 19 Ill. 629: "The party wishing to avail himself of the benefit of such secondary evidence should be required to make at least the same effort that is expected the party would make if he were to lose the benefit of the evidence if the instrument were not found." The degree of diligence which shall be considered necessary, in any case, will depend upon the character and importance of the document, and the purposes for which it is expected to be used, and the place where a paper of that kind may naturally be supposed to be found. If the document be a valuable and important one, which the owner would be likely to preserve, a more diligent search will be required than if the document is of little or no value. The purposes for which it is proposed to use it on the trial will also have an important bearing in determining the degree of diligence required. If the cause of action or defense is founded on the supposed writing, the party offering the evidence will be required to show a greater degree of diligence in the attempt to produce the original than if it is desired to be used as evidence in some collateral matter. The proof of search and proof of loss required is always proportionate to the character and value of the paper supposed to be lost. Insurance Co. v. Rosenagle, 77 Pa. St. 514. The existence and contents of the supposed contract, as well as the claim of defendant based upon it, is denied by the plaintiff in the case at bar. The issue thus being joined, its execution and contents were very material to defendant in establishing its defense. Indeed, defendant seeks to exempt itself from liability solely by reason of this contract. It admits having received, as a common carrier, plaintiff's goods, and that while in its possession they were destroyed, but it seeks to escape liability by virtue of this contract. It then became of the utmost importance to both plaintiff and defendant that the original contract, if such a contract was made at all, be produced on the trial, so that there might be no controversy as to its contents, and that the court might declare its legal effect to the jury. Before defendant should be permitted to give secondary evidence of its contents it should prove that it had exercised the utmost diligence to procure the original (Smith v. Cox, 9 Oreg. 327), and this it failed to do. No competent evidence whatever was offered to prove any search in the office of the traffic manager at Chicago, where it was shown the document was most likely to be found. All that the witness Watts said about the supposed search was clearly hearsay and incompetent evidence. Lawrence v. Fulton, 19 Cal. 683. It did not in any way tend to prove that any effort had been made in the Chicago office to find the original paper. The testimony of the traffic manager, or some person in his office, having the custody of such papers, should have been had, or some proper effort made to obtain it, showing what effort, if any, had been made to find the original.

Indeed, counsel for defendant did not seriously contend that it had brought itself within the rule concerning the admission of secondary evidence, if proof of the loss of the original is required, but he claimed that all that was necessary for defendant to do was to show that the original was in the possession of a person outside of this State, and that no further proof was required; that, when it showed that the original contract was in Chicago, it was entitled to give secondary evidence of its contents without further proof; and in support of his position cites the following authorities: Burton v. Driggs, 20 Wall. 134; Gordon v. Searing, 8 Cal. 49; Beattie v. Hilliard, 55 N. H. 428; Brown v. Woods, 19 Mo. 475; Shepard v. Giddings, 22