Bagley

The action is against the administrators of the estate of G. C. McMickte, deceased, to recover the amount of three promissory notes, alleged to have been made by deceased, March 22d, 1851, *219 to the firm of Bagley k Sinton. This faction is principally based m the ground that the court erred in charging the jury.

On the trial, in order to account for the non production of the notes, and to lay the foundation for introducing secondary evidence of their contents, the plaintiff read to the court his own and his co-payee, Sin-ton’s, affidavit, in which they substantially depose to the making of tM notes, and that-they remained in the possession of Bagley k Sinton until after maturity, when, upon the solicitation of McMickle, the affiants consented that they might be destroyed, in order to satisfy Mia that they would not be negotiated or passed into the market, or 'the hands of some ier party, and that they were then, about the fifteenth of August, 1852, tom up and destroyed, with the consent, and in th® presence of, Bagley k Sinton.

The plaintiff then gave in evidence a'bond, of March 2M, 1851, from Bagley & Sinton to McMickle, in which it is recited to the effect that on or about…