Samuel Fordham, Respondent, v. James S. Hendrickson et al., Executors, etc., Appellants

Samuel Fordham, Respondent, v. James S. Hendrickson et al., Executors, etc., Appellants. (Argued February 10,1881; decided March 1, 1881.) This action was brought to recover upon a lost note for $700, made by .the defendant’s testator, payable to the order of one Campbell, and by him indorsed to the plaintiff. The sole question of fact litigated at the trial related to the ownership of the note by the plaintiff. Upon that question the court say “ there was some conflict in the evidence and the verdict of the jury thereon concludes us.” A point was made in-this court, for the first time, that it does not appear in the case that the plaintiff gave the bond required by the statute as á prerequisite to a recovery upon' the note. Ho such objection to the recovery was taken at the trial. The court say: “ There is no exception which permits the point for our consideration. W e must now assume that the bond was given.” J. Stewart Ross for appellants. Moody B. Smith for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur, except Rapallo, J., absent. Judgment affirmed.