fendant forged the signature, testimony that an acknowledgment thereto was forged by others of the conspirators after the signature was written is admissible.

Appeal from circuit court, Multnomah county; T. A. Stephens, Judge.

Jonathan Tice was convicted of forgery, and appeals. Reversed.

John H. Woodward, for appellant. C. M. Idleman, Atty. Gen., and D. J. Malarkey, for the State.

WOLVERTON, J. The defendant was indicted with others and convicted of the crime of forgery. The subject of the forgery is an instrument purporting to be the last will and testament of one Nancy M. Love, and the crime consists, as the indictment charges, in falsely making and forging the name "Nancy M. Love, her X mark," thereto. At the trial a genuine will of Nancy M. Love, which she had subscribed by her mark, was, after proving her death, offered and admitted in evidence, over the objection of the defendant, for the sole purpose of affording a comparison of the alleged forged mark with the signature mark subscribed thereto. George G. Smith, a co-defendant, who had previously pleaded guilty and received his sentence, testified, among other things, that Tice wrote Nancy M. Love's signature to the alleged will, and then his own. M. C. George, called as a witness for the state, testified that he knew Tice and was familiar with his handwriting, and also with the mark of Nancy M. Love, and that the signature to the will and the name "Jonathan Tice" were in the handwriting of the defendant. The witness was, on redirect examination, permitted, over the objections of defendant, to make a comparison in the presence of the jury of the mark to the alleged forged will with the one attached to the genuine will, and from such comparison he testified that in his opinion the mark subscribed to the pretended will was not the mark of Nancy M. Love. In this there was error. Under the English exposition of the common-law rule, the resort to a comparison of hands, by placing them in juxtaposition, for the purpose of determining the genuineness of a writing, was not permitted, except in two instances: One was when a writing proved to be that of the party whose signature is in dispute is already in evidence, having been put in for other purposes, and the other pertained to ancient documents. Whart. Cr. Ev. §§ 555, 556; Lawson, Exp. Ev. 327; Mudd v. Suckermore (1837) Willm., W. & D. 405; s. c. 2 Nev. & P. 16; Moore v. U. S., 91 U. S. 270. The rule has since been changed in that country by statutory enactment which permits comparison with "any writing proved to the satisfaction of the judge to be genuine." The rules upon the subject adopted in this country are not uniform. Some of the states adhere to the exposition of the common-law doctrine as above stated; some (notably Massachusetts) hold, without statutory interposition, that a

comparison may be made by the jury with other writings proved to be genuine,--Homer v. Wallis, 6 Am. Dec. 169 (see, also, the author's note at pages 171 and 172); Com. v. Coe, 115 Mass. 481; and some of them have adopted statutes similar to the English enactment, but with different regulations touching the standard of comparison and the persons by whom it shall be made. According to the statutes of the latter states, the standard must be acknowledged or proved to the satisfaction of the court, and the comparison must be made by the jury alone, or by experts and the jury. These statutes relieve the question from the inextricable conflict which the courts have brought on by adverse holdings under the common law. Baker v. Mygatt, 14 Iowa, 131; Peck v. Callaghan, 95 N. Y. 73; Insurance Co. v. Gibson, 52 Ga. 640. Our enactment touching the subject differs from any that we have been able to find. It is as follows: "Evidence respecting the handwriting may also be given by a comparison, made by a witness skilled in such matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered." Hill's Ann. Laws Or. § 765. This statute, it is held, has put the dispute elsewhere subsisting at rest, and that a standard of comparison not admitted in evidence -for another purpose, or otherwise relevant or competent, may, in this state, be submitted, by which to determine the genuineness of the writing in dispute. Munkers v. Insurance Co. (Or.) 46 Pac. 850. See, also, Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288. The tests of the standard prescribed by the section quoted must be held to exclude any other test that might be permissible elsewhere. Applying these tests, it is clear that the genuine will of Nancy M. Love ought not to have been admitted for the sole purpose of instituting a comparison between the signature to the alleged forged will and her mark constituting her signature to the true one. It does not appear from the record that the defendant had admitted, nor is it shown that he had treated, the true will as a genuine writing. So that it was not competent for the witness, admitting that he was a person skilled in such matters, to institute the comparison. By the preceding section (Hill's Ann. Laws Or. § 764) it is provided that "the handwriting of a person may be shown, by any one who be lieves it to be his, and who has seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting." It was therefore competent for the witness to testify from his own knowledge of the handwriting of the accused, when acquired in any of the modes pointed out, and under the authorities such testimony may extend to the mark of Nancy M. Love. George v. Surrey (1830) Moody & M. 516; Sayer v. Glossop, 12 Jur. 465; Strong's Ex'rs v. Brewer, 17 Ala. 706; Fogg v. Dennis, 3 Humph. 47; Lansing v. Russell, 3 Barb. Ch.

325; Little v. Rogers (Ga.) 24 S. E. 856; Lawson, Exp. Ev. 296. But they are not uniform, and some judges have strongly characterized such attempts to establish the identity of a mark as impossible and unsound. In Engles v. Bruington, 4 Yeates, 345, it is said that "to attempt to prove a mark to a will would be idle and ludicrous." In a later case from the same state (Shinkle v. Crock, 17 Pa. St. 159), Lewis, J., says: "Where a mark, on inspection, appears to have nothing in its construction to distinguish it from the ordinary marks used by illiterate persons to authenticate their contracts, it is not the subject of this description of evidence." Van Ness, J., in Jackson v. Van Dusen, 5 Johns. 144, says: "The testator having made his mark, no evidence, of course, could be given or expected to prove his handwriting." And in Carrier v. Hampton, 11 Ired. 311, Ruffin, C. J., says: "For although, in some very extraordinary instances, the mark of an illiterate person may become so well known as to be susceptible of proof, like handwriting, yet generally a mark, a mere cross, cannot be identified." Considering the manner in which marks of persons incapable of writing their own signatures are usually made, by merely touching the pen while the scrivener forms.the character, it is a matter of doubtful propriety whether any person ought to be allowed, as a matter of evidence, to identify such a mark as a handwriting; but the mark of some persons, by reason of methods of their own adoption in its formation, and its inherent peculiarities, might be capable of identification, and we are of the opinion that such evidence ought to be permitted to go to the jury; but the attending circumstances touching the habits of the person whose mark is in the balance, his accustomed manner of making the same, and the peculiarities attending it which render it capable of identification, should be carefully considered and scrutinized in determining the weight to be ascribed thereto.

Referring to another phase of the case, it appears that the witness R. I. Eaton was permitted, over the objections of the defendant, to recount before the jury what George W. Edgar, one of the co-defendants, had narrated to him concerning what the witness says he "supposed was the history of this instrument." Admitting that Edgar was a co-conspirator with the defendant in the forging of this will, yet this testimony was clearly incompetent to show the participation of the defendant in the forgery. It was a subsequent narration of the transaction, and could not be considered as part of the res gestæ, or as declarations concurrent in time with the commission of the unlawful act. The rule regarding what declarations of a party to a conspiracy may be used against his co-conspirators is well laid down in Metcalfe v. Conner, 12 Am. Dec. 340, and has been adopted by this court in Sheppard v. De Lashmutt, 10 Or. 417, and again in Osmun v. Winters (Or.) 46 Pac. 782. may be pardoned if we quote it again:

We

"Any

declarations by one of the parties at the time of committing the unlawful act are, no doubt, not only evidence against himself, but, as being part of the res gestæ, and tending to determine the quality of the act, are also evidence against the rest of the party, who are equally as responsible as if they had themselves done the act. But what one of the party may have been heard to say at any other time as to the share which others had in the transaction, or as to the object of the conspiracy, cannot be admitted as evidence to affect them; for it has been solemnly decided that a confession is evidence only against the person himself who makes the confession, and not against others." The rule is as applicable in criminal as in civil cases. Mr. Wharton says: "When the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted, by any subsequent act or declaration of his own, to affect the others." Whart. Cr. Ev. (9th Ed.) § 699.

Following the name of George G. Smith, on the alleged will, there appears what is denominated an acknowledgment of a notary public, which F. R. Maffett, a co-defendant, testified, over the objections of defendant, that he wrote at the suggestion of Edgar; and the action of the court in this regard is assigned as error, upon the ground that when the defendant signed the name of Nancy M. Love to the instrument the acknowledgment was not appended thereto, and that such act was a subsequent transaction. But there was evidence to go to the jury of a conspiracy to forge this will, and it is a matter of proof for the jury's consideration as to what constitutes the forged instrument, in all its parts. If the acknowledgment was appended in pursuance of a common design, then it was part of the act of forging the alleged will; but if one of the conspirators, without the concurrence of the others, added the false acknowledgment, such act could not be said to be theirs. was, however, proper for the whole matter to go to the jury, and it was for them to determine the part that the defendant took in the transaction, and thereby fix his guilt or inno

cence.

It

Lastly, the defendant moved the court for instructions to acquit, when the evidence for the state was in, upon the ground that the testimony of the accomplices had not been corroborated by other evidence tending to connect the defendant with the crime charged. This motion was disallowed, and we think rightly, as the evidence of Mr. George, who testified to an acquaintance with the handwriting of the defendant, and recognized the name "Nancy M. Love," attached to the alleged will, as being in his hand, was sufficiently corroborative, and tended to connect him with the crime charged. But there being error in other respects, as hereinbefore noted, the judgment of the court below will be reversed and the cause remanded for a new trial.

48 P.-24

mons, with the proof of service thereof upon the appellant, had been lost from the files of the superior court; but afterwards that court, upon proof of the loss, authorized copies to be filed and used in place of the originals. Since the briefs herein were filed, the respondent, upon a suggestion of the diminution of the record, has filed herein a properly certified copy of the summons, with proof of service indorsed thereon, substituted as aforesaid, from which it appears that the appellant was personally served with the original summons issued herein, and a copy of the complaint, in the city and county of San Francisco, by the sheriff thereof, on the 28th of December, 1894. The points urged in support of the appeal have therefore been obviated, and it sufficiently appears from the record, as thus corrected, that the judgment against the appellant was properly entered.

The order of the superior court authorizing the copies to be filed was a determination by that tribunal that they were correct copies of the originals, and the papers thus substituted are entitled to the same weight as would be the originals. Knowlton v. Mackenzie, 110 Cal. 183, 42 Pac. 580. Upon the service of the summons, and the failure of the defendant to appear in the action within the time allowed therefor, the court acquired jurisdiction by reason of her default to enter a judgment against her, and it was not necessary that a formal default should have been previously entered by the clerk. Drake v. Duvenick, 45 Cal. 455. The court had-jurisdiction to enter the judgment even though at the time the summons with proof of service had not been filed with the clerk. Herman v. Santee, 103 Cal. 519, 37 Pac. 509. (The ruling to the contrary in Reinhart v. Lugo, 86 Cal. 395, 24 Pac. 1089, was overruled in this case.) The court acquired jurisdiction of the appellant by the service of its process, and did not lose it by neglecting to make the proof of such service a matter of record. Sichler v. Look, 93 Cal. 600, 29 Pac. 220. And a subsequent amendment of the record by supplying this proof of service is as effective to support the judgment as if it had been filed before its entry. Freem. Judgm. § 89b; Allison v. Thomas, 72 Cal. 562, 14 Pac. 309; Perri v. Beaumont, SS Cal. 108, 25 Pac. 1109; Herman v. Santee, 103 Cal. 519, 37 Pac. 509. The judgment is affirmed.

We concur: BEATTY, C. J.; VAN FLEET, J.

(116 Cal. 461)

PEDLAR v. STROUD et al. (Sac. 286.) (Supreme Court of California. April 7, 1897.) APPEAL NOTICE--DISMISSAL.

1. On the death of a judgment plaintiff the authority of his attorney ceases, and the service of a notice of appeal thereafter on him is of no effect.

2. Though proceedings taken for an appeal are ineffective to give the supreme court jurisdiction, where the records of the trial court

show an appeal, the supreme court will order its dismissal to remove such apparent appeal.

3. Where judgment defendants unsuccessfully attempt to perfect an appeal after plaintiff's death and before any substitution is made in the trial court, the supreme court will not refuse to dismiss the appeal because there has been no substitution in such court, and the motion does not purport to be made on behalf of any interested party.

Department 1. Appeal from superior court, Fresno county; J. R. Webb, Judge.

Action by one Pedlar against one Stroud and others, in which defendants appealed from the judgment. Motion to dismiss the appeal. Granted.

L. L. Cory and Jas. A. Burns, for appellants. Frank H. Short, for respondent.

HARRISON, J. Judgment in this action in favor of the plaintiff and against the defendants was rendered July 31, 1895, and entered August 7, 1895. July 6, 1896, the defendants Stroud filed with the clerk of the superior court and served upon Frank H. Short, who had been the attorney of record of the plaintiff, a notice of appeal from said judgment, and also from an order denying a new trial. The plaintiff in the cause died September 3, 1895. No substitution or order of substitution of the administrator or other personal representatives of the plaintiff was made in the cause, nor was any application made to the superior court for such substitution. A motion is now made to dismiss the appeal upon the ground that by reason of the death of the plaintiff before the appeal was taken this court is without jurisdiction over the same. Upon the death of the plaintiff the authority of Short as his attorney ceased, and the service of the notice of appeal thereafter upon him was ineffective to constitute an appeal, or in any respect affect the judgment that had been rendered. Judson v. Love, 35 Cal. 463; Shartzer v. Love, 40 Cal. 93; Sheldon v. Dalton, 57 Cal. 19. Although the proceedings taken by the defendants have been ineffective to give this court jurisdiction of the appeal, yet, as upon the face of the records of the case in the superior court an appeal has been taken, this court will order its dismissal for the purpose of removing such apparent appeal. Ditch Co. v. Bachtold, 109 Cal. 114, 41 Pac. $13. Neither is it a ground for denying the motion that there has been no substitution in this court of the personal representatives of the plaintiff, and that the motion does not purport to be made on behalf of any party interested in the judgment. An appeal of which this court has no jurisdiction will be dismissed of its own motion whenever its attention is drawn thereto. Bienenfeld v. Milling Co., 82 Cal. 425, 22 Pac. 1113. Lyons v. Roach, 72 Cal. 85, 13 Pac. 151, cited by appellant, does not hold a contrary doctrine. In that case the appeal had been perfected in the lifetime of the plaintiff, but he died before the transcript on appeal was filed in this

court. A motion to dismiss the appeal for failure to file the transcript was served upon his attorneys of record before any substitution of his personal representatives had been made in the case, and was denied for the reason that by the death of the plaintiff the attorneys ceased to represent him in the cause, and this court had no jurisdiction over the personal representatives by which they would be bound by an order of dismissal. The court had jurisdiction of the appeal, but did not have jurisdiction of the motion, whereas in the present case the court has never acquired jurisdiction of the appeal. The motion is granted.

We concur: BEATTY, C. J.; VAN FLEET, J.

(116 Cal. 365)

TIBBETS v. COHN et al. (S. F. 368.) (Supreme Court of California. March 30, 1897.) INSOLVENCY-ASSIGNEE AND RECEIVERS-ACTIONS.

St. 1891, p. 511, provides that the court shall in insolvency proceedings appoint the sheriff receiver to take charge of the estates of the insolvent, and to care for and dispose of the same until the appointment of an assignee, and that his powers shall in all respects be regulated by the general laws of the state applicable to receivers. Code Civ. Proc. § 568 (relating to receivers generally), provides that a receiver may sue and defend in his own name, take and keep possession of the property, receive rents, collect debts, compound for and compromise the same, make transfers, and do such acts respecting the property as the court may direct. Held, that a receiver appointed under the act of 1891 cannot sue for property transferred in contemplation of insolvency, but that the authority is vested solely in the assignee by the insolvency act (St. 1880, c. 87, § 21), which expressly authorizes him to recover from any person receiving a conveyance, gift, or payment from an insolvent contrary to the act.

Department 2. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by George A. Tibbets, receiver, against G. Cohn & Co. There was a judgment for plaintiff, and defendants appeal. Reversed.

Naphtaly, Freidenrich & Ackerman, for appellants. Garber, Boalt & Bishop, and J. H. Ahern, for respondent.

TEMPLE, J. This action was brought to recover the value of certain property alleged .to have been transferred to defendants within one month before the commencement of proceedings in insolvency, in violation of the insolvency act. In the complaint it is averred that on the 19th day of May, 1892, one Charles W. Pick, being insolvent, filed his petition alleging his insolvency, and praying to be discharged from his liabilities; that such proceedings were had that plaintiff was, on August 24, 1892, appointed receiver of the estate of said insolvent pending the election of an assignee. Facts are then al

leged tending to show that, within one month before the commencement of said proceedings, the defendants, who were creditors of the insolvent, received a transfer of all the available assets of the insolvent, in payment of defendants' demand against the insolvent, and that Pick and the defendants well knew of the insolvency of Pick, and intended by said transfer thereby to prevent the property from coming into the possession of the assignee, etc. Before answering, the defendants demurred to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action. One of the defendants, G. Cohn, then answered, and the case was tried before a jury, which rendered a verdict for the plaintiff, and the defendants appeal upon the judgment roll, without a bill of exceptions.

In 1891 section 63 of the insolvent act was repealed (St. 1891, p. 511), and section 6 amended so as to provide that the court shall make an order appointing the sheriff a receiver, to take charge and possession of all estate, etc., of the insolvent, and to keep and care for and dispose of the same until the appointment of an assignee, and that his powers shall in all respects be regulated by the general laws of the state applicable to receivers. Section 568, Code Civ. Proc., provides that a receiver have power, under control of the court, to bring and defend actions in his own name, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and to do such acts respecting the property as the court may direct.

The complaint discloses the fact that the plaintiff was not the sheriff of the county of Kern, in which the proceedings were pending, and the appellants therefore contend that the appointment was void. To this the plaintiff replies that the objection is not raised by a general demurrer. It is not that the complaint fails to state a cause of action, but that the plaintiff has not the legal capacity to sue. This objection must be taken by special demurrer or answer, and, if not so taken, is waived. Several cases are cited which seem to sustain this contention. Swamp Land Dist. v. Feck, 60 Cal. 403; Miller v. Luco, 80 Cal. 257, 22 Pac. 195; Wilhoit v. Cunningham, 87 Cal. 453, 25 Pac. 675. The view taken of this case, however, renders it unnecessary to definitely pass upon this question. If, conceding the validity of the appointment of plaintiff as receiver, the action is one that he could not maintain, the objection would not be to his capacity to sue as receiver, but that, being receiver, the complaint fails to show a cause of action in him. Our statute gives no further definition of the office of receiver, or statement of his powers and functions, than above recited. Section 6 of the insolvency act de fines his duties to be to take into his possession the assets of the insolvent, and to