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credited upon the old note; that, in order to induce the defendant to execute the new note, the deceased represented to him that the amount due on said account could be credited as well upon the new as upon the old rote; and that if the defendant would execute a pew note, in renewal of the old, the defendant could there after make out a statement of the said account, and the amount thereof would be credited by the deceased on the new note as a payment thereon; and that, relying on such represen tations, he was induced to, and did, execute the new note; that on September 18, 1891, the defendant, in pursuance of such agreement, made out and sent to the deceased an itemized statement of his demand, whereupon the said account was settled, and it was then agreed that the deceased was indebted to the defendant in the sum of $906; that the defendant was not indebted to the deceased at the time the new note was given, and the same was executed without consideration, and under a misapprehension of the facts." A demurrer to this answer having been sustained, and the defendant declining to plead further, the court rendered judgment against him for the amount demanded, from which he appeals.

S. H. Hazard, for appellant. J. W. Hamilton, for respondent.


MOORE, C. J. (after stating the facts). The question presented by this appeal is whether the new matter alleged in the answer constituted either a defense or a counterclaim to the cause of action stated in the complaint. Counsel for defendant contends that, his client having fully paid the amount due on the old note before giving the new one, there was 110 consideration for the execution of the latter, and hence the matter pleaded constitutes a defense to the action. The rule is settled in this state that the execution of a promissory note is prima facie evidence of an accounting and settlement between the parties of all existing demands, and afford presumptive evidence that at the date of the execution of the instrument the maker owed the payee the amount named therein. Matasce v. Hughes, 7 Or. 39; Hoyt v. Clarkson, 23 Or. 51, 31 Pac. 198. The new note, having been given in renewal of the old, to evidence the amount presumptively due thereon, was supported by a valuable consideration; and, as the defense pleaded would have been availing as a payment upon the old, the question arises, why should it not be equally effective when invoked for the same purpose as a defense to the new note? The greatest objection, perhaps, that might be urged against that proposition, would probably be that it would tion vert a defense involving a want of consideration into a plea of payment of a valid instrument; but, waiving this difficulty for the present, we will consider the inquiry sugrested, and treat the subject as involving the latter defense.

In Vahan v. Sherman, 7 Blackf. 378, an action having been brought on a promissory note, the defendant alleged that, at the time the instrument was given, it was agreed between the parties that an account for work, etc., which the maker held against the payee, should, before the note became due, be adjusted, and the amount thereof applied in part or full payment of the obligation; but it was held that the defense was unavailing, the court saying: “A verbal contract, contemporaneous with the note, is relied upon to show that the note was not to be paid till a certain account should be adjusted,' and the amount credited on the note. That would be making the promise conditional, which, upon its face, is absolute." In that

the maker of the note proposed to show that the payment thereof was dependent upon a settlement of the account between the parties, and, as oral testimony is inadmissible to contradict or vary the terms of a written agreement, the court very properly held that the defense was ineffectual. In Eaves v. Henderson, 17 Wend. 190 (also an action on a promissory note). the defendant was permitted to prove, over the plaintiff's objection, that, at the time the note was executed, the payee was indebted to the maker in the sum of $300.25 on account of goods sold and delivered by the defendant to the plaintiff, under an agreement that the amount should be applied on the note; but it was held, on reversing the judgment, that the evidence was inadmissible, the court saying: "But the difficulty here, in respect to the two small items of articles delivered before the giving of the note, lies in the evidence being a contradiction of the amount expressed in the note." It would seem from this decision that, if the maker of a note promised to pay a sum in excess of the amount due on a settlement of accounts with the payee, he could not, in an action on the note, allege or prove that it was agreed, at the time the note was given, that an account due from the payee to him was to be credited as a payment thereon.

If the rule announced in Eaves v. Henderson, supra, be correct, then the decisions of this court to the effect that the giving of a promissory note raises a disputable presumption only that all antecedent accounts esisting between the parties have been considered and adjusted, and that the amount expressed in the written promise is the balance found to be due the payee from the maker on such settlement, are erroneous, and should be corrected, so as to make the presumption conclusive. Note the effect of such a construction by putting a hypothetical case: A. owes $1,000 on account to B.. his father, who, desiring to obtain a short loan, and realizing that his son is not prepared at that time to settle or pay the amount due on the account, executes to A. a note for and obtains $100. Now, to say that this transaction conclusively establishes the settlement of the account between the

father and his son would amount to a trav- action on the note. This would not be vary. esty on justice, and the bare statement of ing or contradicting the terms of the writthe consequences dependent upon such a con- ten agreement, because, under the very libclusion shows its own absurdity. Such irra- eral rules of code pleading with respect to tional deduction cannot, on principle, be the set-offs, such a claim could be interposed law applicable to the facts stated in the as a defense to the action. hypothetical case. The true rule, founded In the case at bar it is alleged that the in reason, is correctly enunciated by Lord, deceased agreed to credit on the new note C. J., in Hoyt v. Clarkson, supra, in which, the amount of said account, and that, a speaking for the court, he says: “The pre- statement thereof having been furnished, the sumption is in favor of the correctness of account was settled and agreed upon. The the settlement, and that the note given for facts here alleged would constitute a paythe balance ascertained on such settlement ment of the note. If the deceased had expresses the truth. Hence the general rule agreed to give the defendant credit on his that a settled account will not be opened note for a given sum in consideration of ceron mere conflicting evidence, and that, when tain property which was to be delivered to opened, errors or omissions not alleged will the payee, and the same was surrendered not be considered, though there may be some and accepted in pursuance of the agreement, evidence tending to prove them. In such it must be admitted that this would amount case the party claiming that there were any to a payment; and, this being so, an account errors or mistakes must allege them fully stated must also constitute a payment. “To and precisely, so as to inform his adversary, constitute a payment,” says Harris, J., in and so that issue may be joined upon them." Bank v. Gay, 19 Barb. 439, “money or some It is true the opinion in that case is predicat- other valuable thing must be delivered by ed upon the assumption that a settlement of the debtor to the creditor, for the purpose the accounts had been made in the computa- of extinguishing the debt, and the creditor tion of which some items had been inadver- must receive it for the same purpose.” If tently omitted; and, upon the theory that there had been no agreement to credit the equity will relieve against mistakes, the amount of this account on the note, it would, court had power to open and re-examine the

nevertheless, be permissible to allege and account as to the items alleged to have been prove the facts relied upon as creating a omitted. But can there be any difference, counterclaim. In the case at bar, however, on principle, between a case in which a mis- the defendant, after alleging the facts, states, take is relied upon to correct an error oc- as a conclusion of law, that they constitute curring in the settlement of an account, and a want of consideration, instead of a payone in which there had been no settlement ment; but as a pleading is to be liberally whatever, and the maker of a promissory construed, in view of the facts alleged, and note had intentionally omitted to claim the not entirely upon a statement of the concredit due him from the payee thereof? clusion of law contained therein (Hill's Ann. Taking the hypothetical case to illustrate the

Laws Or. § 106), we think the facts alleged answer to this question: If the father, in constituted a defense to the action, and that the case supposed, desiring to give his son the court erred in sustaining the demurrer, $100, but not having the amount on hand, for which reason the judgment is reversed, had manifested his intention in this respect and the cause remanded for trial. by executing to the object of his bounty a note for that sum, it would not follow that the amount due the father on the account

(30 Or. 157) from the son was thereby settled and remit

STATE v. TICE. ted; nor would the maker of the note be precluded, in an action 'brought by the son

(Supreme Court of Oregon. April 5, 1897.) to recover the amount expressed to be due


LARATIONS OF CO-CONSPIRATOR. thereon, from showing that the instrument

1. Under Hill's Ann. Laws, § 765, providing was not supported by a valuable considera

that evidence respecting the handwriting may tion. This is so, because oral testimony be given by a comparison with writings adis admissible to prove that a written obliga

mitted or treated as genuine by the party

against whom the evidence is offered, an intion to pay a sum of money was executed

strument not admitted or treated by defendant without a valuable consideration. Such be

as genuine cannot be used for the sole purpose ing the case, an intentional omission of an of comparing the hand writing with that of anamount due on an account to the maker of

other paper charged to have been forged.

2. Testimony as to the genuineness of handa promissory note from the payee thereof at

writing may be extended to a mark or cross by the date of its execution is equivalent to a means of which an illiterate person signed his lack of consideration pro tanto, in view of name, its weight being for the jury. which we fail to see any valid reason why

3. Declarations of a party to a conspiracy,

not made at the time of the commission of the the rule should not be enlarged so

unlawful act, so as to become a part of the res permit the admission of evidence to over- gestie, are not admissible against one charged come the presumption of the settlement of

as a co-conspirator.

4. On a charge of forging a will in pursuance the account, and to establish a counterclaim

of a conspiracy in which defendant participatfor the amount so due as a defense to an ed, where the evidence tended to show that de

as to

fendant forged the signature, testimony that comparison may be made by the jury with an acknowledgment thereto was forged by oth

other writings proved to be genuine,--Homer ers of the conspirators after the signature was written is admissible.

v. Wallis, 6 Am. Dec. 169 (see, also, the au

thor's note at pages 171 and 172); Com. v. Appeal from circuit court, Multnomah coun

Coe, 115 Mass. 481; and some of them have ty; T. A. Stephens, Judge.

adoptedl statutes similar to the English enactJonathan Tice was convicted of forgery, and ment, but with different regulations touching appeals. Reversed.

the standard of comparison and the persons John H. Woodward, for appellant. C. M. by whom it shall be made. According to the Idleman, Atty. Gen., and D. J. Malarkey, for

statutes of the latter states, the standard must the State.

be acknowledged or proved to the satisfaction

of the court, and the comparison must be made WOLVERTON, J. The defendant was in- by the jury alone, or by experts and the jury. dicted with others and convicted of the crime These statutes relieve the question from the of forgery. The subject of the forgery is an inextricable conflict which the courts have instrument purporting to be the last will and brought on by adverse holdings under the testament of one Nancy M. Love, and the common law. Baker v. Mygatt, 14 Iowa, 131; crime consists, as the indictment charges, in Peck v. Callaghan, 95 N. Y. 73; Insurance Co. falsely making and forging the name "Nancy v. Gibson, 52 Ga. 610. Our enactment touchM. Love, her X mark," thereto. At the trial ing the subject differs from any that we have a genuine will of Nancy M. Love, which she been able to find. It is as follows: “Evihad subscribed by her mark, was, after prov- dence respecting the handwriting may also be ing her death, offered and admitted in evi- given by a comparison, made by a witness dence, over the objection of the defendant, for skilled in such matters, or the jury, with the sole purpose of affording a comparison of writings admitted or treated as genuine by the alleged forged mark with the signature the party against whom the evidence is ofmark subscribed thereto. George G. Smith, fered." Hill's Ann. Laws Or. 8 765. This a co-defendant, who had previously pleaded statute, it is held, has put the dispute else guilty and received his sentence, testified, where subsisting at rest, and that a standard among other things, that Tice wrote Nancy M. of comparison not admitted in evidence for Love's signature to the alleged will, and then another purpose, or otherwise relevant or comhis own. M. C. George, called as a witness petent, may, in this state, be submitted, by for the state, testified that he knew Tice and which to determine the genuineness of the was familiar with his handwriting, and also writing in dispute. Munkers v. Insurance with the mark of Nancy M. Love, and that the Co. (Or.) 46 Pac. 850. See, also, Holmes v. signature to the will and the name "Jonathan Goldsmith, 147 U. S. 150, 13 Sup. ct. 288. Tice” were in the handwriting of the defend- The tests of the standard prescribed by the ant. The witness was, on redirect examina- section quoted must be held to exclude any tion, permitted, over the objections of defend- other test that might be permissible elsewhere. ant, to make a comparison in the presence of Applying these tests, it is clear that the genuthe jury of the mark to the alleged forged ine will of Nancy M. Love ought not to have will with the one attached to the genuine will, been admitted for the sole purpose of institutand from such comparison he testified that ing a comparison between the signature to the in his opinion the mark subscribed to the pre- alleged forged will and her mark constituting tended will was not the mark of Nancy M. her signature to the true one. It does not Love. In this there was error. Under the appear from the record that the defendant English exposition of the common-law rule, had admitted, nor is it shown that he had the resort to a comparison of hands, by placing treated, the true will as a genuine writing. them in juxtaposition, for the purpose of deter- So that it was not competent for the witness, mining the genuineness of a writing, was not admitting that he was a person skilled in permitted, except in two instances:

One was

such matters, to institute the comparison. By when a writing proved to be that of the party the preceding section (Hill's Ann. Laws Or. whose signature is in dispute is already in § 764) it is provided that “the handwriting of evidence, having been put in for other pur- a person may be shown, by any one who be. poses, and the other pertained to ancient doc- lieves it to be his, and who has seen him write, uments. Whart. Cr. Ev. 88 555, 556; Law- or has seen writing purporting to have been son, Exp. Ev. 327; Judd v. Suckermore (1837) his, upon which he has acted or been charged, Willm., W. & D. 405; S. c. 2 Nev. & P. 16; and who has thus acquired a knowledge of Moore v. U. S., 91 U. S. 270. The rule has his handwriting." It was therefore compesince been changed in that country by statu- tent for the witness to testify from his own tory enactment which permits comparison knowledge of the bandwriting of the accused, with “any writing proved to the satisfaction when acquired in any of the modes pointed of the judge to be genuine.” Tlie rules upon out, and under the authorities such testimony the subject adopted in this country are not may extend to the mark of Nancy M. Love. uniform. Some of the states adhere to the George v. Surrey (1830) Voody & M. 516; exposition of the common-law doctrine as Sa yer v. Glossop, 12 Jur. 465; Strong's Ex'rs above stated; some (notably Massachusetts) v. Brewer, 17 Ala. 706; Fogg v. Dennis, 3 hold, without statutory interposition, that a Ilumph. 47; Lansing y. Russell, 3 Barb. Ch.

325; Little v. Rogers (Ga.) 24 S. E. 836; declarations by one of the parties at the time Lawson, Exp. Ev. 296. But they are not uni- of committing the unlawful act are, no doubt, form, and some judges have strongly charac- not only evidence against himself, but, as beterized such attempts to establish the identity ing part of the res gestæ, and tending to deof a mark as impossible and unsound. In termine the quality of the act, are also eviEngles v. Bruington, 4 Yeates, 345, it is said dence against the rest of the party, who are that “to attempt to prove a mark to a will equally as responsible as if they had themwould be idle and ludicrous.” In a later case selves done the act. But what one of the from the same state (Shinkle v. Crock, 17 Pa. party may have been heard to say at any St. 159), Lewis, J., says: "Where a mark, on other time as to the share which others had inspection, appears to have nothing in its con- in the transaction, or as to the object of the struction to distinguish it from the ordinary conspiracy, cannot be admitted as evidence to marks used by illiterate persons to authenti- affect them; for it has been solemnly decided cate their contracts, it is not the subject of that a confession is evidence only against the this description of evidence.” Van Ness, J., person himself who makes the confession, and in Jackson v. Van Dusen, 5 Johns. 114, says: not against others." The rule is as applica"The testator having made his mark, no evi- ble in criminal as in civil cases. Mr. Whardence, of course, could be given or expected to ton says: “When the common enterprise is at prove his handwriting." And in Carrier v. an end, whether by accomplishment or abanHampton, 11 Ired. 311, Ruffin, C. J., says: donment, no one of the conspirators is permit"For although, in some very extraordinary in- ted, by any subsequent act or declaration of stances, the mark of an illiterate person may his own, to affect the others." Whart. Cr. Ev. become so well known as to be susceptible of (9th Ed.) 8 699. proof, like handwriting, yet generally a mark, Following the name of George G. Smith, on a mere cross, cannot be identified.” Consid

the alleged will, there appears what is denomiering the manner in which marks of persons nated an acknowledgment of a notary pubincapable of writing their own signatures are lic, which F. R. Maffett, a co-defendant, tesusually made, by merely touching the pen tified, over the objections of defendant, that while the scrivener forms the character, it is

he wrote at the suggestion of Edgar; and the a matter of doubtful propriety whether any action of the court in this regard is assigned person ought to be allowed, as a matter of

as error, upon the ground that when the deevidence, to identify such a mark as a hand

fendant signed the name of Nancy M. Love writing; but the mark of some persons, by to the instrument the acknowledgment was reason of methods of their own adoption in not appended thereto, and that such act was its formation, and its inherent peculiarities, a subsequent transaction. But there was evimight be capable of identification, and we are dence to go to the jury of a conspiracy to of the opinion that such evidence ought to be forge this will, and it is a matter of proof for permitted to go to the jury; but the attend- the jury's consideration as to what constitutes ing circumstances touching the habits of the the forged instrument, in all its parts. If the person whose mark is in the balance, his ac.

acknowledgment was appended in pursuance customed manner of making the same, and of a common design, then it was part of the the peculiarities attending it which render it act of forging the alleged will; but if one of capable of identification, should be carefully the conspirators, without the concurrence of considered and scrutinized in determining the the others, added the false acknowledgment, weight to be ascribed thereto.

such act could not be said to be theirs. It Referring to another phase of the case, it was, however, proper for the whole matter to appears that the witness R. I. Eaton was per- go to the jury, and it was for them to de‘mitted, over the objections of the defendant, termine the part that the defendant took in the to recount before the jury what George W. transaction, and thereby fix his guilt or innoEdgar, one of the co-defendants, had narrated cence. to him concerning what the witness says he Lastly, the defendant moved the court for "supposed was the history of this instrument." instructions to acquit, when the evidence for Admitting that Edgar was a co-conspirator the state was in, upon the ground that the with the defendant in the forging of this will, testimony of the accomplices had not been coryet this testimony was clearly incompetent to roborated by other evidence tending to conshow the participation of the defendant in the nect the defendant with the crime charged. forgery. It was a subsequent narration of the This motion was disallowed, and we think transaction, and could not be considered as rightly, as the evidence of Mr. George, who part of the res gestæ, or as declarations con- testified to an acquaintance with the handcurrent in time with the commission of the writing of the defendant, and recognized the unlawful act. The rule regarding what dec. name "Nancy M. Love," attached to the allarations of a party to a conspiracy may be leged will, as being in his hand, was suffiused against his co-conspirators is well laid ciently corroborative, and tended to connect down in Metcalfe v. Conner, 12 Am. Dec. 310, him with the crime charged. But there beand has been adopted by this court in Shep- ing error in other respects, as hereinbefore pard v. De Lashmutt, 10 Or. 417, and again noted, the judgment of the court below will be in Osmun v. Winters (Or.) 46 Pac. 782. We reversed and the cause remanded for a new may be pardoned if we quote it again: “Any trial.

48 P.--24

(23 Nev. 387)

left to implication or conjecture. We find no STATE ex rel. CUTTING v. LA GRAVE,

reason for giving to the sentence an interpreta. State Controller. (No. 1490.)

tion other than the natural import of the lan(Supreme Court of Nevada. April 7, 1897.)

guage used. Let the writ issue. Officers-COMPENSATION-CONSTITUTIONAL LAW The exception of "salaries or compensa

BONNIFIELD and MASSEY, JJ., concur. tion fixed by law" in Const. art. 5, $ 21, providing that, with such exception, no claim shall be passed on by the legislature without having

(116 Cal. 424) been acted on by the board of examiners, applies to compensation allowed by special act HIBERNIA SAVINGS & LOAN SOC. Y. after services are performed, as well as to that

MATTHAI. (S. F. 528.) fixed by pre-existing law.

(Supreme Court of California. April 7, 1897.) Application by the state, on the relation of RECORD ON APPEAL-SHOWING AS TO SERVICE OF H. C. Cutting, ex officio curator of the State SUMMONS SUPPLYING Defect - SUBSTITUTISO Museum, for a writ of mandamus against C.


PROOF OF SERVICE-AMENDMENT OF RECORD A. La Grave, state controller. Writ granted. AFTER JUDGMENT. H. C. Cutting, in pro. per. J. R. Judge,

1. Where the original summons, with proof of Atty. Gen., for respondent.

service, was lost from the files when the appeal was taken, but after the briefs were filed the

court below ordered a copy substituted, and re BELKNAP, C. J. Relator applied for a

spondent, on suggesting a diminution of the rec

ord, filed a certified copy showing personal serswrit of mandamus requiring the state con

ice on defendant, a contention in defendant's troller to draw his warrant for the sum of brief that tbe record did not show jurisdiction $2,800, in accordance with the provisions of over him is intenable. an act entitled "An act to provide for the relief

2. An order of court for the substitution of a

copy of the summons and the indorsed proof of of H. C. Cutting," approved February 18, service, in place of the original, which had been 1897 (St. 1897, p. —). Respondent demurs to lost from the files, is a determination that the the petition, upon the ground that it does not copy is correct.

3. On failure of a defendant properly served state facts sufficient to constitute a cause of

to appear within the time allowed, the court action. The point relied upon is that the may enter judgment against him without a claim was not presented to the board of ex- prior formal entry of default by the clerk. aminers prior to the passage of the enactment

4. The court may enter judgment against a

defendant who was properly served, but who by the legislature. The constitution (article did not appear in time, though the summons. 5, $ 21) provides “that the governor, secretary | with proof of service, had not been filed with of state and attorney general shall

the clerk. constitute a board of examiners, with power

5. Where the summons has been properly

served, the record may be amended after judg. to examine all claims against the state (except ment to show proof of service. salaries or compensation fixed by law), * and no claim against the state (ex

Department 1. Appeal from superior court,

city and county of San Francisco; D. J. Murcept salaries or compensation of officers fixed by law) shall be passed upon by the legisla

phy, Judge. ture without having been considered and acted

Action by the Hibernia Savings & Loan So upon by said board of examiners." The act

ciety against Mary Elizabeth Matthai. Judg. appropriates the sum of money mentioned to

ment for plaintiff, and defendant appeals.

Affirmed. Mr. Cutting for services rendered as ex officio curator of the State Museum. It is therefore W. H. Fowler, for appellant. Tobin & TO clearly compensation, and is expressly exempt- bin, for respondent. ed by the terms of the constitution.

It is said that the salaries and compensation HARRISON, J. The appeal herein is from exempted by the constitution must be those a judgment of foreclosure entered upon the that have been settled by pre-existing law. default of the appellant. It is recited in the Had such been the intention, apt words would judgment that the defendants in the action have been employed. For instance, in sec- were severally, personally, and duly served tion 28 of article 4 it is provided "that no mon- with the summons, together with a copy of ey shall be drawn from the state treasury as the complaint; that the default of the appelsalary or compensation to any officer or 'em- lant for not answering was duly entered; ployé of the legislature, or either branch there- and that the cause came on regularly for of, except in cases where such salary or com- trial by the court upon the complaint taken pensation has been fixed by a law in force as confessed by her. The judgment roll, prior to the election or appointment of such which is set out in the transcript as originalofficer or employé.” This illustration from ly filed herein, did not contain a copy of the the constitution shows that its framers in- sunimons with proof of service upon the aptended that no question should arise touching pellant; and it was contended by her in the the meaning that should be attached to its briefs filed on her behalf that, by reason of language in that case, and it is probable that, the failure of the record to show that the if any restriction or qualification had been in- court had acquired jurisdiction over her, the tended to apply to section 28 of article 4, it judgment must be reversed. At the time the would have been fairly expressed, and not appeal herein was taken, the original sum

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