Appeal from the District Court of the Fourth Judicial District, County of San Francisco.

This action was commenced on the fourth of April, 1855, by the appellant, against the respondents, on three promissory notes m¡i ie and delivered by G. 0. McMickle, deceased, to Ragley and Sinton, and by them assigned to Bagley. On the death of Mc-Miukle, the claim, duly verified, was presented to the administrators of his estate, and rejected, and suit brought within three months thereafter.

The answer contains five different defences:

1. A general denial.

2. The Statute of Limitations of four years.

3. Payment and satisfaction.

4. That on May 1st, 1850, Bagley and Sinton agreed with the intestate to sell him a lot in San Eraneiseo for §14,000, on which he paid them, up to the 22d March, 1851, §8,400, on which day the piirties settled and entered into an agreement, in writing, setting forth the notes sued on, as the balance of the purchase-money due, but that the liability of McMickle was limited, and that it was provided that if the notes were not paid the intestate was not to be holden, but the lot to become forfeited to Bagley and Sinton, and they were to accept it in full discharge of the notes; that the notes were not paid, and that Bagley and Sinton did accept the lot, and sold it to other persons, and so discharged the notes.

5. That the notes were without consideration, and void.

Bote—as to the second plea—the action was commenced fourth April, 1855.

The fourth plea is, the defendants’ legal construction of the instrument hereafter shown in the evidence, and determined to be an erroneous construction by the Supreme Court.

The case has been tried three times in the Eourth District Court—the last time at the August Term, 1857, before the Court and jury.

On the trial, the plaintiff’s counsel read to the Court, for the purpose of laying the foundation for the introduction of secondary evidence of the notes sued on to the jury, the following affidavits, viz.:

“ David T. Bagley, the plaintiff in the above entitled suit, being duly sworn, says: On the twenty-second day of March, a. d. 185l, Grove O. McMickle made and delivered to the firm of Bagley & Sinton three promissory notes of that date, described and referred to in a certain instrument in writing of that date, signed by this plaintiff, and R. H. Sinton and Grove C. McMickle, and acknowledged before J. P. Haven, notary public; that said notes remained in the possession of said Bagley & Sinton for some time after their maturity, and that, in the demand for the same, said Bagley & Sinton had been very lenient and indulgent to said McMickle, and had resorted tono legal proceedings to collect the same; and that said McMickle, having repeatedly requested said firm not to sell or negotiate said notes, and fearing a negotiation to some person who might be more vigorous in the collection of the same, the parties altogether, viz., said Bagley, Sinton and McMickle, consented and agreed that said notes, for the sole purpose of preventing their negotiation into the hands of some other party, or of their getting into the market, might be destroyed, and believing, also, that the rights of the parties would remain the same as before the destruction j and the said notes were then and there, to wit., about the fifteenth day of August, A. n. 1852, torn up into small pieces and thrown away, in the presence of all the parties. That said destruction was done for the purpose aforesaid, and by the agreement of the parties was not to affect the right of the said Bagley & Sinton to recover on said notes, and with full intent on the part of all the parties, that the rights of the parties should be as if the notes continued to exist.”

“Richard H. Sinton, being duly sworn, deposes and says: That on the twenty-second day of March, a. d. 1851, Grove 0. Mc-Mickle made and delivered to the firm of Bagley & Sinton (then composed of the plaintiff and this affiant,) three promissory notes of that date, being the same referred to and described in a certain instrument of writing of that date, executed in duplicate by said Bagley and said McMickle, and this affiant, under their respective hands and seals, and acknowledged by them respectively before J. P. Haven, a notarypublic, on the same day. That said notes remained in the possession of said Bagley & Sinton for some time after their maturity, and that in the demand for the same said Bagley & Sinton had been very lenient and indulgent to said McMickle, and had resorted to no legal proceedings to collect the same, and that the said McMickle repeatedly urged said firm not to sell or negotiate the said notes, as he feared a negotiation to some person who might be more rigorous in the collection, and believing he had a claim for indulgence on said firm, and having a great objection to his paper being hawked about in the market—the parties altogether, to satisfy said Mc-Mickle, and to prevent a negotiation of said notes into the hands of some other parties, or their getting into the market, consented that the same might be torn up or destroyed, and, according to the best recollection and belief of this affiant, the same were torn up into small pieces, about the fifteenth day of August, a. d. 1852, and thrown away, in the presence and by consent of said Bagley & Sinton and said McMickle, but with the distinct understanding on the part of all, that the claim of said Bagley & Sin-ton on said notes against said McMickle should remain exactly as if said notes still existed, and that said Bagley & Sinton consented to the same only to satisfy said McMickle, as aforesaid, and with a full belief on their part that their claim on said notes was not affected thereby, and that the evidence of same, contained in said instrument, of the date of twenty-second March, 1851, would fully prove the same, and be all that would be necessary to enforce their collection.”

The plaintiff’s counsel then offered in evidence to the jury, the following instrument in writing, to wit:

“ Know all men by these presents: That we, David T. Bagley and R. H. Sinton, composing the firm of Bagley & Sinton, of San Francisco, are held and firmly bound unto G-. C. McMickle, also of San Francisco, in the sum of twelve thousand dollars, lawful money of the United States of America, to be paid to the said McMickle, his heirs, executors, or assignsj for which payment, well and truly to be made, we hereby bind ourselves, our heirs, executors, and assigns, firmly by these presents. Sealed with our seals and dated this twenty-second day of March, a. d. eighteen hundred and fifty-one.

“Whereas, the said Bagley & Sinton, on or about the first day of May, a. d. 1850, did sell unto the said McMickle, for the sum of fourteen thousand dollars, a certain lot of ground in the city of San Francisco, situated on the northeast corner of Pacific and Kearny streets, the same measuring twelve and one-half varas on Pacific and thirty varas on Kearny street. Whereas, the said McMickle has paid at different times, of the above fourteen thousand dollars, the sum of eight thousand four hundred and twenty dollars, leaving a balance still due Bagley & Sinton, of five thousand five hundred and eighty dollars, which, together with one thousand dollars interest accrued, makes an aggregate due Bagley & Sinton this day of six thousand five hundred and eighty dollars. Whereas, the said McMickle has executed unto the said Bagley & Sinton three promissory notes, of even date with these presents, amounting, in the aggregate, to the last written sum—one of said notes being for the sum of two thousand dollars, payable thirty days after date—another for a like sum of two thousand dollars, payable sixty days after date, and the third and last for the sum of two thousand five hundred and eighty dollars, payable ninety days after date—each and all bearing interest at the rate of five per centum per month from date :

“Mow the condition of this obligation is such, that if the said McMickle shall well and truly pay to the said Bagley & Sinton, or their assigns, the said notes, at maturity, then the said Bagley & Sinton agree and hereby bind themselves to execute to the said McMickle a quit-claim-deed of all their right, title, and interest, in and to the aforementioned lot of ground. But if the said McMickle shall make default in the payment of any one or all of the said notes, then the said McMickle is to forfeit all right or interest in the said lot of ground; and the said Bagley & Sinton are hereby authorized to make such disposition thereof, discharged of all claim, or pretence of claim or interest in the same, on the part of the said McMickle, as they may see fit.

“In witness of all of which, the said David T. Bagley and R. H. Sinton for themselves, and the said G. C. McMickle for himself, have signed and sealed these presents in duplicate, at the city of San Franc-isco, this, twenty-second day of March, a. d. eighteen hundred and fifty-one. “ David T. Bagley, [l. s.]

“Attest: “R. H. Sinton, [l.s.]

“ Q-. C. McMickle, [l. s.]

“FTote.—In fourth line from bottom, first page, the words ‘ payable ninety days after date/ are interlined and noted before signing. “ G. W. Baker,

“ Daniel J. Thomas, Jr.”

“ State of California, )

“ County and City of San Francisco. | s '

“On this 22d day of March, a. d. 1851, personally appeared before me, a notary public, duly admitted and sworn, David T. Bagley, R. H. Sinton, and G. C. McMickle, known to me to be the persons described in and who executed the foregoing instrument of writing, who acknowledged that they executed the same freely, and of their own accord, for the purposes therein set forth. [l. s.] “ J. P. Haven, 1ST. P.”

It was then and there admitted, by the defendants’ counsel in open Court, in the presence of the Court and jury, that the signatures to the foregoing instrument wore genuine, and that the same was executed in duplicate, one part of which was then in the possession of the plaintiff, and one of the defendants, as the representatives of the intestate.

To the admission of this instrument in evidence to the jury, the defendants’ counsel objected, but the Court overruled the objection, and permitted it to be read in evidence to the jury, which was done.

The assignment to the plaintiff was duly proven, and also the presentation of the sworn claim to the administrator, its rejection, and the bringing of the suit within three months thereafter.

It was also admitted by defendants' counsel, in presence of the Court and jury, that the defendants had made due publication as such administrators, calling in all claims against their intestate, within ten months after dato of said publication, which time had expired; and that this claim had been presented within said ten months, by said Bagley and Sinton.

The defendants offered no evidence. The Court instructed the jury, without being requested by either party, as follows :

“ The bond is sufficient evidence of the making of the notes therein described. The affidavits of plaintiff and Sin ton are addressed to the Court for the purpose of accounting for the non-production of the notes sued upon, and laying the foundation for secondary evidence, and are not evidence for the jury. These affidavits show that the maker of the notes peaceably acquired their possession, and destroyed them with plaintiff’s consent. Under these circumstances, I feel it my duty to instruct you that there is no testimony to show there is any amount due upon the notes sued upon. This is the third trial of this ease, but it is the first time that it has come up in this form; heretofore Sin-ton was introduced by plaintiffs as a witness, and explained the delivering of the notes to the maker.

“ I can only regard the affidavits as in evidence to satisfy the Court the notes can not be produced upon this trial, and to authorize secondary proof of their contents; but as they trace the notes to the possession of the maker, and disclose that they were destroyed by him with plaintiff’s consent, it raises no presumption that they were unpaid in whole or in part; but on the contrary, regarding the affidavits only as proving the destruction in the manner disclosed—by the maker, with the consent of the owners—it raises a presumption in favor of the former, which plaintiff is bound to explain by additional evidence. The affidavits themselves contain an explanation, but in this respect they go beyond their true purpose. Defendants had no opportunity to cross-examine the affiants, and this Court can not give any greater force and effect to the affidavits, than was asked for them when they were introduced, and there is no proof to rebut the presumption in favor of the deceased maker of the notes.

“If plaintiff can and should recover upon the testimony as it now stands, then any person who pays a note, takes it up and destroys it, may be compelled to pay it a second time if he is not prepared to defend by proof of actual payment. Merely taking up his note nnd destroying it would be no protection if the then holder could, as the plaintiff here has attempted to do, compel him afterwards, by bringing suit and making affidavit as in this case, to show an actual payment. To establish such a principle of law, would not only be dangerous, but also be taking away what has been regarded the best and most ordinary protection and safeguard that a party has when he makes payment of obligations of this kind. There is no evidence to warrant a general verdict for the plaintiff for any amount of money due plaintiff.”

The jury found in favor of defendants under those instructions.

Plaintiff moved the Court for a now trial, which motion was denied. Plaintiff appealed to this Court, and assigned as error the instruction of the Court.