made therein at the time of their occurrence, respectively, and that he is enabled thereby to fix with accuracy the date in question; but, if objected to, he would not be permitted to read the entry in evidence, excepting, perhaps, upon cross-examination. It follows, of course, that the book or diary need not be produced for the inspection of the jury.

It was competent for the cashier and clerks of the Williamsport Bank to refresh their recollection by a reference to their books, and, having testified to the facts in issue, it was not improper, we think, for them to refer to the book entries made by them, respectively, at the time of the transactions, to explain the general method of conducting their business, and as exhibiting their opportunities for knowledge of the matters in question; and for this purpose it was not necessary, in connection with the depositions, that the books should be produced for inspection of the jury. The suit is not brought upon the book charges, nor were the books relied upon as books of original entry, or referred to as such. Indeed, the books themselves were not offered in evidence at all, either at the taking of the depositions or at the trial. The best proof of which the case appears to have been susceptible was the evidence of the bank officers themselves. The books were but secondary evidence of the facts alleged. But, while it was competent for the witnesses named to explain the course of their business, to state that entries in the regular course of business were made of this transaction at the time, and, by reference to the books, to refresh their recollection, it was not competent, we think, in this oblique way, to introduce the entries themselves. If the books, supported by the oath of those who made them, were conceived to be evidence, they should have been offered, and, upon proper identification, produced at the trial.

It is conceded in the argument that if the memorandum, “Simon & P., $376.98,” was in fact written upon the letter, Exhibit A, when received at Du Bois, and the note was not found inclosed therein, it was the duty of the Du Bois Bank to notify the Williamsport Bank of the fact. This neglect of the Du Bois Bank to give notice in such case was, we think, the equivalent, in the first instance, of an admission that the note was received. This neglect was, of course, open to explanation; but, unexplained, it was, as the court said, “almost conclusive that the Du Bois Bank had lost the note.” Whether the memorandum was made before the remittance to Du Bois, and, if so, whether the failure to give notice of the fact was satisfactorily explained, were, under all the evidence, questions for the jury. Mr. Harris testifies that the Exhibit A, with the exception of the “O. K.” and the pencil figuring, is all in his handwriting. He does not say in terms that it was all written at the time, but he states fully his method of doing business; and the fair inference is, in the absence of proof to the contrary, that it was so written. We are not to presume or to infer a fraud or a forgery without proof. W. H. Sloan, the cashier, testifies that he directed the remittance of the note and checks to. be made, and that on the fourteenth June, 1884, he received an envelope by mail, in which he found the Exhibit A, with a draft for $169.85, covering the amount of the checks, on the Du Bois Bank. He does not say that the memorandum of the note was then written upon it; but, as the witness is supposed to speak of the paper as it was exhibited to him on the stand, in the absence of any suggestion of the witness to the contrary, this is the reasonable presumption as to his meaning. The testimony on these points is certainly not as full as its importance would seem to require. It is meager in details, and, to some extent, on this account, unsatisfactory. Sufficient was shown, however, to send the case to the jury. When there is evidence on part of the plaintiff which, taken alone, would justify an inference of the disputed facts, the question is for the jury, (Howard Etp. Co. v. Wile, 64 Pa. St. 205;) and in civil cases the facts are to be determined by the weight of the evidence.

We are of opinion that the sixth assignment of error must be sustained. The $100 note matured on the twenty-third June, 1884 ; the note now in question, for $376.98, on the fifth July following. Mr. Arnold testifies that the bank gave their advance notices from one to two weeks before the notes matured. Mr. Simon says that he removed to Big Run on the fourteenth June, and that he received a notice very soon after. He does not pretend to say upon which note the not-ice was given. He did not read it. He knew it was a notice from the bank; but, as he knew he was unable to pay, he gave it no attention. Now, this notice was just as likely to be upon the-one note as the other. There was literally no evidence from which the jury could have inferred that the notice was upon the note for $37 6.98 ; and it was plain error to submit a question of fact, which was conclusive in the case, to be determined upon mere conjecture.

The judgment is reversed, and a venire facias de novo awarded.

J UDGMEN'r—INDEMNITOR’s RIGHT TO NOTICE OF ACTION—PARTNERSHIP—EVI— DENCE.

In_ order to make a judgment against one of several former partners conclusive upon another partner who, upon dissolutlon, assumed the firm debts, the evidence of notlce to the latter of the bringing of the action in which the judgment was obtained, must be very clear.

Error to common pleas, Erie county.

Covenant by Charles H. Orton, George W. Haverstick, and Elon A. Bennett, to use of E. A. Bennett, against William W. Reed, executor of Henry Caldwell, deceased.

On September 1, 1855, Caldwell, Haverstick, Orton, and Bennett formed a partnership to do a mercantile business at Milwaukee, Wisconsin. On June 1, 1857, the partnership was dissolved, and the agreement upon which this suit was brought was entered into by the parties, by which Caldwell took the assets of the concern, and agreed to settle the indebtedness of the firm, and indemnify the other members from suits arising out of the copartnership. The firm were indebted on Feb

v.6A.no.4—2-l ‘

ruary 28, 1857, by note, to Barnes, Lyman & Co., in the sum of $1,313.30. On January 6, 1858, Barnes, Lyman & Co.-recovered a judgment against Caldwell, Orton, and Haverstick in the circuit court of the United States for the district of Wisconsin, and on March 30, 1861, they recovered a judgment against Bennett, on the same note, in the common pleas of Erie county. No notice of this suit was given to Cald— well. On October 29, 1868, this judgment against Bennett was regularly revived, and damages assessed at $2,403.09, and a fieri facias issued, which was stayed, and the debt and interest receipted, upon Bennett giving his note for this amount and an assignment of the agreement in suit. This note has never been paid. On December 3, 1860, Barnes, Lyman & C0. took from Henry Caldwell his bond conditioned for the payment of $1,649.60, (the amount then due on the judgment in the United States court,) and entered judgment thereon in the common pleas of Erie county. This judgment, on October 31, 1864, Barnes, Lyman & Co. sold and assigned to W. W. Lyon, reserving all their rights against the other members of the firm. On May 15, 1866, W. W. Lyon received and entered satisfaction on the record of said judgment. Henry Caldwell died in February, 1868, and \V. W. Lyon died in 1869. After Caldwell’s death, a wire facias was issued by Barnes, Lyman (it Co. on their judgment against Bennett, who made no defense to the revival of the judgment against him, which was accordingly done, without Bennett giving notice, as defendant alleged, to Reed, executor of Caldwell, that such sci. fa. had been issued. This action was then brought in the name of Bennett on the bond of indemnity. Verdict and judgment for plaintiff, $3,833.18; whereupon defendant took this writ.

F. F. Marshall and John P. Vincent, for plaintifi" in error.

A notice which would prevent Reed setting up any defense, and which would make a judgment between the parties binding on him, must be a legal notice, i. e., a written notice. In re Turnpike Co., 3 Johns. Gas. 108; In re Cooper, 15 Johns. Gas. 553; Paul v. Wit/nan. 3 Watts St S. 410; Longenecker v. Pennsylvania R. Co., 105 Pa. St. 330.

J. W. Wetmore and L. S. Norton, for defendant in error.

Where notice does not appear on the record, whether notice was actually given became a matter in pais, to be decided by the jury. (.‘ollingwood v. I rwin,-3 Watts, 306; Rawle, Cov. 255; Bank of Pittsburgh v. Whitehead, 10 Watts, 397.

GREEN, J. It seems to us the evidence of notice by Bennett to Reed, as executor of Caldwell, of the pending suit by Barnes, Lyman & Co. against Bennett, was insufficient. If the notice was not given until after judgment was obtained against Bennett it was unavailing, as no opportunity to intervene and make defense could be then acquired. The only witness to prove the notice was Bennett himself. He was sworn, and testified on his own behalf, and the best he could say was far short of an actual notice of a pending suit given before judgment was obtained. The Whole of his testimony on his examination in chief is contained in the following :

“Question. Now, before this scire facias, that is issued July 24, 1868, and the judgment against you was entered, three months and five days thereafter, —n0w, between those two dates, what, if any, conversation did you have with W. W. Reed, the executor of Henry Caldwell, as to the pendency of this action against you? Answer. I spoke to him about it, and he referred me to Mr. Marshall. I don’t know all that was said. Q. If there was more than one such conversation occurred, about how often, according to your recollection? Did you have any conversation with him with regard to it with Mr. Reed? A. I couldn’t say. It was a good while ago. I couldn’t say where we were, or how many there was; but we often spoke of it. Q. Can you give the substance of those conversations? A. The substance was I wanted him to look after it, and protect me, and he referred to the old gentleman, Mr. Marshall.”

It will be perceived at once that the testimony was extremely vague and indefinite, .and evidence upon such a subject ought not to be either vague or indefinite. He says, “I spoke to him about it;” but he does not say what he spoke. He may infer from what he said that he gaveexpress information of the fact that a suit had been brought against him by Barnes, Lyman & Co. for a debt for which Reed’s testator was liable; but he has no right to infer. That is for the jury when they know what was said. But what was said is not stated, and therefore we cannot certainly know whether there was proper ground for an inference of the particular notice which the occasion required by the jury. Nor is this deficiency supplied by the further statement, “The substance was I wanted him to look after it, and protect me.” Look after what? Protect him from what? The witness does not say; and the jury is asked to infer the whole matter of the conversation, and its meaning, when the party, who is his own witness, is unable or unwilling to tell it himself. The necessity for certainty is greatly increased by the fact that the dei'endant was only an executor of the real defendant, and is not presumed to know anything about the matter in question. He should therefore be precisely informed, and the very matter of the information should be stated, so that the jury and the court might judge of its meaning and effect.

In addition to the foregoing, the witness, on cross-examination, was quite unable to say whether the conversation, such as it was, occurred before or after judgment was obtained. Thus:

“Question. You don‘t recollect now of having testified before that you had conversation with Mr. Reed about this section now in suit? Answer. I don’t know whether about this one. I had several in regard to different suits, and he always referred me to Mr. Marshall. Q. Do you, mean,to say now that you had these Conversations with him beforejudgment was obtained against you in that case? A. It was just before that conversation with Mr. Marshall. Whether he had obtained the judgment then or not I don’t recollect. Q. Wasn’t it when they were trying to open the judgment you hal this conversation? A. No, sir; I think not. Mr. Marshall says: 'Let him crack away; he won’t make anything out of it.’ Q. That was after the judgment was had against you? A. I couldn’t say whether it was pending, or whether a judgment had been obtained.”

Further on, having said, “Mr. Reed spoke to me, and I to him,” he was asked:

“Question. You can’t say whether that was before or after the judgment? Answer. Which judgment? Q. The judgment of Barnes, Lyman 85 Co. against you, on which the execution was issued against you alone on the scire facias in 1868. Wasn’t all that talk with Mr. Reed about that after that judgment was obtained, and after they were talking about having it opened? A. I couldn’t say.”

We are very clear that, in view of this aspect of the testimony, it was insufficient to go to the jury as evidence of express notice of a particular suit pending, and at a time when the party notified might have an opportunity to intervene and make defense. The evidence of Judge VINCENT as to what Bennett testified to on a former trial was neither offered nor received as evidence of notice, but only to disprove a possible theory of the defense that the evidence was an after-thought, occurring subsequently to the previous trial. If it had been offered as proof of the fact of notice by proving that Bennett once swore to it positively, it would have been clearly incompetent, as Bennett was himself alive, and an actual witness in the cause. He could not help out his own evidence by proving that he testified to the fact of notice on a previous trial. We sustain the fourth assignment, but not the others. Judgment reversed.

BOROUGH OF CARLISLE v. BRISBANE.l
(Supreme Court of Pennsylvania. October 4, 1886.)

1. ACTION—JOINT LIABILITY—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE. ‘ Where one suffers from an injury through the concurrent negligence of two or more persons, they are jointly liable, and may beproceeded against for damages sustained, either jointly or severally, at the option of the party injured, unless the latter, by his own negligence, has contributed to the injury, in which case the law will not afford him any remedy whatever against any of the persons whose wrong, in concurrence with his own, caused the injury. 2. NEGLIGENCE—IMPUTED CONTRIBUTORY NEGLIGENCE—DEFECTIVE WAY.

The borough of Carlisle was macadamizing, in accordance with its custom, one side of a certain street. A., a resident of Philadelphia, was riding in a sleigh owned and driven by B., a resident of Carlisle, who knew of the work going on. After they had turned into the street which was being repaired, and driven about 50 or 60 feet, the sleigh was upset by one runner goin on an embankment made b stone, and A. was thrown out and injured. eld, that the borough of Carfisle was liable for the injury; that the knowledge of B. could not be imputed to A.; and, as the former was not a common carrier for hire, he was not bound to use the highest skill and care, but only such as an ordinary person would have used under the circumstances.’1

0

Error to common pleas, Cumberland county.

Case by John F. Brisbane against the borough Of Carlisle.

During the fall and winter of 1884 the borough of Carlisle was macadamizing North street, outside the built-up portion of the borough, beginning at the Poor-house road. The street is 60 feet wide. The cus