George Hudson versus John A. Hulbert, 15 Pick. 423

Per Curiam. In the course of the trial in this case it became necessary for the plaintiff to show, that the administrator of his father’s estate gave due notice of his appointment, both by advertising in a certain newspaper, and by posting notice in certain public places. The advertising was proved, but there was no direct evidence of the posting.

The question is, whether the fact that a probate order was issued requiring two things to be done, and the fact that one of them was done, without other proof, are competent evidence for a jury to presume that the other was done ; and the Court are all of opinion that they are not. A mere general probability, that one complies with the law, or performs his duty, is not sufficient to enable a jury to find a fact affirmatively, which is necessary to sustain a title.

Here the probability of the fact is not aided by lapse of time, because there has been no holding, possession, or enjoyment of title, which presupposes the act done ; on the contrary, if the act was done, it goes to defeat the title under which the estate has been held ever since the sale made by the administrator. Verdict set aside and nonsuit entered.