and there specifically excepted." For the proponents it is said that this exception was insufficient, in that it did not direct the attention of the court to any particular error; but an exception in substantially the same language was held good in Ritchey v. The People, 23 Colo. 314. See also Bradbury v. Alden, 13 Colo. App. 208. The abstract did not contain instruction No. 1, nor is the giving of it assigned for error; and we do not know what it was, or what its effect might be on the remaining instructions. To determine whether a case has been properly submitted the instructions must be considered as a whole. Instructions Nos. 7 and 8 have evident reference to testimony which has not been laid before us. Abstractly, they seem to announce correct propositions; and it must be presumed by us that these were properly applied to the evidence. The 5th is asserted to be inconsistent with the 17th. The latter laid the burden upon the proponents of proving that at the time of executing the will and codicil the testatrix was of sound mind and memory; while the former advised the jury that the legal presumption was in favor of her sanity. These instructions may have been contradictory, or they may not. The instruction which is missing may have harmonized them. From the information which the abstract affords, it appears that the proponents did assume the burden of establishing the fact of the sanity of the testatrix at the times when the will and codicil were made, and that, prima facie at least, they did establish that fact. The instruction therefore could not have been intended or understood to dispense with evidence from the proponents in the first instance. When the prima facie case was made, the requirements of the 17th instruction were satisfied, and the burden then shifted to the contestants. From the course which the trial seems to have taken, it may be presumed that the

court referred to the presumption as attaching when the prima facie case was made, and the first instruction may have made the meaning of the 5th plain. But however this may be, to enable us to judge whether the jury could have been misled we must know not only what was the first instruction, but also what the evidence was. For aught that appears, there was no conflict in the testimony. Without an opportunity to examine it, it is impossible for us to know whether there was or not. It may have been so conclusive as to preclude any verdict but the one which was returned; and if so, the language of the instructions is not very material. In any attempt to discuss the question which counsel seeks to raise, we are handicapped by the incompleteness, and more than incompleteness, of the record which he has seen fit to present to us. We fail to see anything faulty in the instructions which we have not specifically noticed; and, being ignorant of what occurred generally at the trial, we are unable to find any good reason for reversing the judgment. It will therefore be affirmed. Affirmed.

[No. 2213.]

TOURTELOTTE, EXECUTOR OF THE ESTATE OF TOURTELOTTE, V. BROWN, ADMINISTRATOR OF THE ESTATE OF HAWKINS.

1. Appellate Practice-Assignments of Error-Evidence.

An assignment of error based on the admission or rejection of evidence which refers to the testimony of a number of unnamed witnesses and directs the attention of the court to the testimony of no particular one, will not be considered. 2. Evidence-Discrediting Witness-Record-Parties.

The record of a proceeding to remove an administrator finding that through the negligence of the administrator and the fraud of his agent the estate had been defrauded, to which proceeding the agent was not a party, is not admissible in evidence in another cause in which said agent is a witness for the purpose of discrediting his testimony.

3. Evidence-Conversation with Party Since Deceased.

The admission in evidence of a conversation with a party since deceased is not reversible error where the conversation did not affect the issue on trial.

4. Same-Estates of Decedents.

In an action against an administrator a conversation between the administrator and a party to the suit who has since died, which did not relate to matters transpiring prior to the death of the administrator's decedent is not prohibited from admission in evidence by section 4816, Mills' Ann. Stats.

5. Bills and Notes-Forgery—Evidence.

Evidence held sufficient to sustain a verdict finding that the signature of a deceased person to a note was a forgery.

Error to the District Court of Arapahoe County. Mr. J. A. McD. LIVESAY, for plaintiff in error. Messrs. PATTERSON, RICHARDSON & HAWKINS, for defendant in error.

THOMSON, J.

On the 13th day of January, 1890, Monroe L. Tourtellotte presented to the county court of Arapahoe county, for allowance against the estate of Francina Hawkins, deceased, a note to Maggie A. Hurd, her daughter, for $8,000, dated July 30, 1887, due thirty months after date, with interest at eight per cent. per annum from date, payable every six months or to be compounded, and purporting to have been executed by Francina Hawkins. This note had been indorsed by the payee to Steele & Malone, by them to John F. Tourtellotte, and by him to Monroe L. Tourtellotte. The allowance of this note was resisted by Joseph M. Brown, administrator of the estate of Francina Hawkins, upon the grounds as set forth in a verified answer filed by him; that there was no consideration for the note; that the endorsements were all without consideration, and that the note was not the act and deed of Francina Hawkins. The note was disallowed by the county court, and an appeal to the

district court taken from the judgment. The cause was tried in the latter court in October, 1890. At the trial, the court submitted to the jury specially the question whether the note was a forgery. The jury returned a general verdict for the defendant, and reported that they were unable to agree on an answer to the special interrogatory. Judgment was entered for the defendant on the general verdict, and the plaintiff brought the case here by writ of error. It was held by this court that the question of the genuineness of the note was the controlling issue; and, on the ground that there had been no finding upon that issue, the judgment was reversed.-Tourtelotte v. Brown, 1 Colo. App. 408.

A retrial of the cause in the district court, in April, 1892, resulted in a verdict and judgment for the defendant; and the plaintiff again prosecuted error to this court, where, upon the opinion of a majority of the judges composing the court, the judgment was again reversed.—Tourtelotte v. Brown, 4 Colo. App. 377.

The plaintiff having departed this life, John F. Tourtellotte, the executor of his will, was substituted for him on June 8, 1894. At the third trial in the district court, in June, 1894, a verdict was returned in the plaintiff's favor for $13,000. The judgment entered on the verdict was then taken for review to the supreme court by writ of error, and by that court reversed.-Brown v. Tourtelotte, 24 Colo. 204.

The result of the succeeding trial in the district court, which occurred in October, 1898, was a verdict and judgment for the defendant; and the case is once more here on error.

At the last trial but one question was presented, and that was whether the signature to the note was genuine. In his opening brief, counsel for the plaintiff, in terms, abandons all his assignments of error

but the second, fifth, seventh, eighth, and those challenging the correctness of the instructions. The second is that the verdict was not supported by the evidence. The fifth reads as follows: "The court erred in permitting witnesses to testify that at the date of the note in controversy, there were moneys due from Maggie A. Hurd to Francina Hawkins." The seventh goes to the refusal of the court to admit a record of proceedings in the county court showing that the witnesses Pickard and Joseph M. Brown had been guilty of gross negligence in the management of the estate, and that the witness Pickard had been guilty of defrauding the estate of various sums of money. The eighth complains of the admission of evidence of a conversation between witness, Joseph M. Brown and Maggie A. Hurd, as to what took place before the filing of the note in controversy as a claim against the estate of Francina Hawkins. Counsel, however, announces that his main reliance for reversal is on the insufficiency of the evidence. This supposed insufficiency is the sole subject of his printed argument. Neither in his opening nor his reply brief does he favor us with a single reason why any rejected evidence should have been received, or any admitted evidence excluded, or attempt to indicate wherein any instruction was erroneous. We have examined the instructions with care, and are unable to see in what particular any of them can be made the subject of valid objection. The fifth assignment is worthless. As to assignments of error, it is required by rule 11 of this court that each error shall be separately alleged and particularly specified. This assignment directs our attention to the testimony of no particular witness. It refers to the testimony of a number of unnamed witnesses and would require us to search the record and find for ourselves what witnesses testified on the subject. It will, therefore, not