Bagley

The bond is sufficient evidence of the making of the notes therein described. The affidavits of plaintiff and Sinton 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 *189 show that there is any amount due upon the notes sued upon. This is the third trial of this case, but it is the first time it has come up in this form; heretofore Sinton was introduced by plaintiff as a witness, and explained the delivering of the notes to the maker.

I can only regard the afiidavits as in evidence to satisfy the court the notes cannot be produced upon this trial, and to authorize secondary proof of their contents; but as they trace the notes to the possession of their maker, and disclose that they were destroyed by him vtith plaintiff’s consent, it raises no presumption that they were unpaid in whole or in part; but on the contrary,…