The preliminary proof was sufficient to
allow the. introduction of the evidence offered. The original paper was in the state of Wisconsin, out of the jurisdiction of the court. Notice to the plaintiff himself, was not necessary ; for he claimed, in opposition to the paper, and could not be presumed to have possession of it, or even to have knowledge of its existence. The executor or administrator of Orville Howd, was the person, who, it should be presumed, held and controlled the paper, but whether he was still living, or if so, in this state or elsewhere, did not appear, on the trial. But it did appear, in fact, that he did not hold the paper. It was in the hands of a person in another state, not subject to the call or control of the defendant. If the
In this opinion the other judges concurred, except Church, C. J., who tried the cause in the court below.
New trial not to be granted.