ten instrument lost or destroyed may be proven by competent evidence. *** It is well settled that if books or papers necessary as evidence in one state be in the possession of a person living in another state, secondary evidence, without further showing, may be given to prove the contents of such papers, and notice to produce them is unnecessary;" and such has invariably been held to be the law in different states. See Burnham v. Wood, 8 N. H. 334; Beattie v. Hilliard, 55 N. H. 428; Harper v. Cook, 1 Car. & P. 139; Shepard v. Giddings, 22 Conn. 282; Bailey v. Johnson, 9 Cow. (N. Y.) 115; Mauri v. Heffernan, 13 Johns. (N. Y.) 58; Eaton v. Campbell, 7 Pick. (Mass.) 10.

Carefully authenticated and verified copies were produced of every important paper necessary as evidence, including the charter of the company, its official acts, resolutions, etc., authorizing the mortgage, together with careful and elaborate proof of the personnel of the governing body, the execution of the paper under the corporate seal, and the reason added why the original paper was not produced.

It is technically urged that it was not shown that the mortgage was executed by the president or chairman of the board. of trustees or directors. Courts are not to presume that there were such officers. Where it is shown that the paper was executed by the board of control, and the seal of the corporation affixed by the custodian by order of the board of control, it is sufficient.

Section 119 of the charter provides that the seal shall be evidenced by the signature thereto of one of the directors and the secretary. In this case it was evidenced by three directors and the secretary.

In Lovett v. Steam Saw Mill Ass'n, 6 Paige (N. Y.), 60, the learned chancellor said: "The seal of a corporation aggregate affixed to the deed is of itself prima facie evidence that it was so affixed by the authority of the corporation; especially if it is proved to have been put to the deed by an officer who was entrusted by the corporation with the custody of such seal. *** And it lies with the party objecting to the

due execution of the deed to show that the corporate seal was affixed to it surreptitiously or improperly, and that all the preliminary steps to authorize the officer having the legal custody of the seal to affix it to the deed had not been complied with." See Kyd on Corp., 268; Angell & Ames on Corp., 115; Whart. on Ev., 694; Clarke v. Imp. Gas Light Co., 4 Barn. & Ald. 315; Doe v. Chambers, 4 A. &. E. 410; Burrill v. The Bank, 2 Met. (Mass.) 166; St. John's Church v. Steinmetz, 18 Pa. St. 273.

This fundamental principle of the law of evidence appears to have been overlooked; also the other fact that the corporation was not the plaintiff, but a codefendant; hence the greater necessity of establishing by competent proof any fact of want of authority, irregularity or fraud in the transaction to vitiate the deed of trust, instead of reversing and throwing upon the plaintiffs the burden of proof of every fact in advance, and requiring it to anticipate every objection the ingenuity of counsel could suggest.

It follows that we do not think any serious error warranting a reversal occurred upon the trial. The judgment and decree were fully warranted by the facts and evidence. The claim of title as made by the defendants was not such as to appeal to the conscience of a chancellor, or such as to demand great consideration. The judgment of the district court will be affirmed.

Affirmed.

ROGERS ET AL. v. MCMILLEN, ADM'R.

1. SET-OFF-COUNTERCLAIM.

A separate demand cannot be set off against a partnership demand. 2. WITNESSES-COMPETENCY.

With certain exceptions, stated in the statute, no party to a civil action or person directly interested in the event thereof is competent to testify therein of his own motion, or in his own behalf, when the adverse party sues or defends as the administrator of a deceased person.

3. PRACTICE-PARTIES.

Where several parties are joined as defendants as copartners, it is too late to object after judgment that one of them had been dead a number of years when the suit was brought, especially where the surviving partners, through their attorney, have had his appearance entered.

Appeal from the District Court of Lake County.

APPELLEE, the administrator of the estate of Wm. J. A. Howie, brought suit to recover from appellants the sum of $1,224.88, alleged to have been due Howie at the time of his death.

Appellants were mining the Continental Chief Mine. Howie was engaged with teams in hauling coal to the mine, and ore from it. He died on the 14th day of October, 1892. At the time of his death it is alleged that there was due and owing to him for such services for the month of September and the fourteen days of October the amount for which the suit was brought.

Previous to September 1st, settlements had been had, and all accounts adjusted. The complaint was in the ordinary form. The defendants, in answer, admitted the death of Howie, the appointment of appellee as administrator, and that they, the defendants, were doing business under the name of Continental Chief Mine ;-denied generally the other allegations of the complaint. A jury was waived and a trial had to the court.

At the commencement of the trial, it appears to have been admitted in open court "that if Howie, or his administratos, are entitled to recover against the defendants any amount, that amount will be $1,217."

The trial resulted in a judgment for the plaintiff for $1,214.43, from which an appeal was prosecuted to this court.

Mr. A. J. STERLING, for appellants.

Mr. GEO. S. PHELPS and Mr. N. ROLLINS, for appellee.

REED, J., delivered the opinion of the court.

We cannot understand what, if any, influence or effect the stipulation in open court, that the amount of the recovery should be $1,217, if anything, had upon the trial of the case. Such a stipulation would naturally be construed as fixing the amount, in case the legal question or questions presented should be determined in favor of the plaintiff, leaving only legal questions to be determined upon the trial; but it does not seem to have been so regarded by court or counsel, and we are confronted with many pages of evidence and elaborate columns of figures, for apparently no purpose except to establish the concession made as to the amount in the first instance. The result reached having only varied from the amount conceded $2.57, it may be regarded as establishing the amount of damage. The small difference having been found for defendants, they cannot complain that the judg ment is excessive.

Although the trial was very lengthy, and contested with great zeal and energy, only one question seems to be involved, which may be briefly stated: Whether Michael, one of the defendant's partners, doing business under the firm name of the Continental Chief Mine, could set off a note of Howie, payable to him individually, against the amount due Howie from the partnership? The court properly found it could not be done, and gave a judgment for the amount admitted to be due. Numerous errors are assigned, but aside from the general one that the finding was against the evidence, they were principally to the refusal of the court to admit evidence to establish the note as a set-off. The contention was that Howie borrowed money from Michael, for which he gave his note; that it was for money borrowed to purchase teams; and that the work done was done for him individually in payment of the note, and he was to collect from the company. This claim was negatived-first, by the books of Howie, where it was charged to the company; second, by the books of the company, where it was put to the credit of Howie; third, by

previous transactions, where, during the existence of the note, monthly payments had been made by the company to Howie direct, for large amounts, while only two or three payments, amounting in all to $300, had been paid by Howie to Michael, and indorsed upon the note.

The note bore date January 10, 1890; was for $1,500, payable six months after date; indorsed May 12, 1891, with payment of $100; September 28, 1892, $200. Howie died October 14, 1892. It will be observed that the payment of $200 was made September 28, 1892. The bills for the month of September, as taken from the books, were $889.66, due two days after the payment of $200 made by Howie to Michael, and from another source. Howie was then living, and the sum due from the company on October 1, $889.66, was not indorsed nor passed to the credit of Michael. The bills for the month of October, until Howie's death, on the 14th, amounted to $214.77. On November 11th, nearly a month. after Howie's death, Michael indorsed upon the note $1,217.35 due from the company to Howie, being the balance due upon the note.

These facts, though not conclusive, were very strong circumstances tending to show that Michael's contention was an afterthought.

The refusal of the court to allow the note from Howie to Michael to go in evidence is urged as error. This may be very briefly disposed of. Unless the alleged agreement contended for by Michael was clearly established beyond controversy, it was inadmissible for any purpose. It was not made to, nor the property of, the Mining Company. The consideration for the note did not go from the company, but from the individual. The contract sought to be set up contradicted the note. The latter was to pay money to the individual; the former to haul for the company to pay the note to the individual. The contract contended for could only have been a new one,-a novation,-in which all three parties must have participated and agreed. It is claimed that Michael was the manager of the company, in charge of its affairs; VOL. VI-2