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that party, though they are delivered to and used by another party, the statute of frauds does not apply, and the promise of such party is an original promise, which may be proven without a writing: Mackey v. Smith, 21 Or. 604, 28 Pac. 974.

An agreement between cosureties on a bond as to their proportion of liability thereon is not an agreement to answer for the debt, default, or miscarriage of another, and not within the statute: Rose v. Wollenberg, 31 Or. 274, 44 Pac. 382, 65 Am. St. Rep. 826, 39 L. R. A. 378.

Where a bond is given for release from arrest in an action for debt, conditioned that the sureties shall pay any judgment that may be recovered against their principal, while such bond is not required by statute, it is not against public policy and valid and binding, and when entered into may be enforced: Paddock v. Hume, 6 Or. 86; Taylor v. Fleckenstein, 30 Fed. 103.

The objection that a contract is an agreement to answer for the debt, default, or miscarriage of another, must be taken in the lower court, and can not be urged for the first time on appeal: Hawley v. Dawson, 16 Or. 347, 18 Pac. 592.

AGREEMENT IN CONSIDERATION OF MARRIAGE.-The marriage alone of parties is not such a partial performance of an agreement made between them regarding pecuniary rights as will be sufficient to take it out of the operation of this statute: Adams v. Adams, 17 Or. 254, 20 Pac. 638.

AGREEMENT FOR SALE OF PERSONAL PROPERTY.-An agreement for the sale of property exceeding $50 in value need not be in writing, where the purchaser takes possession of it: Duzan v. Meserve, 24 Or. 523, 34 Pac. 548; Meyer v. Thompson, 16 Or. 194, 18 Pac. 16.

To constitute an acceptance there must be delivery of the goods by the vendor with the intention of investing the right of possession in the vendee, and there must be a receipt and acceptance by the latter with intention to take possession as owner: Galvin v. MacKenzie, 21 Or. 185, 27 Pac. 1039. Where an agreement was had that defendant's debts should be liquidated by the transfer of certain property, including a fish net of the value of over $50, and subsequently the plaintiff gave a receipt reciting the transfer of certain property, not, however, including the fish net, and providing that the transfer was in full payment of all claims, it was held that the giving of the receipt was not a payment so as to take the parol agreement for the sale of the fish net out of the statute of frauds: Milos v. Covacevich, 40 Or. 66 Pac. 914.

The delivery of a bill of lading of a car of wheat by indorsement in blank to the

purchaser is a sufficient delivery to take the transaction out of the statute of frauds: Wadhams v. Balfour, 32 Or. 332, 51 Pac. 642. An oral contract to manufacture iron work for a certain building, according to special designs and measurements, suitable for use only in that particular building, and not used in the ordinary course of business or made for the general trade, is not "an agreement for the sale of personal property" within this section. This section refers to property which exists in specie at the time the contract is entered into: Heintz v. Burkhard, 29 Or. 59, 43 Pac. 866, 54 Am. St. Rep. 777, 31 L. R. A. 608. LEASING, AND OTHER CONTRACTS IN REGARD TO REAL PROPERTY: note to § 793, ante.

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An agreement for the leasing of land for a period longer than one year is within the statute, but obligations may be created by a part performance which the courts will enforce, and the lease be considered as one from year to year: Wallace v. Scoggins, 17 Or. 478, 21 Pac. 558, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749, note; Rosenblat v. Perkins, 18 Or. 159, 22 Pac. 598.

A contract to grant or convey an easement must be evidenced by writing: Foss v. Newbury, 20 Or. 260, 25 Pac. 669.

Agreements in respect to boundary lines are based upon the fact that the true line of separation is not only fairly and truly in dispute, but that it is also, to some extent, undefined and unknown, and where the transactions have not been such as to amount to an honest attempt to determine a doubtful line, the courts have not permitted an agreement to stand which would operate as a violation of the statute of frauds: Lennox v. Hendricks, 11 Or. 33, 4 Pac. 515.

A memorandum signed by two parties, reciting an agreement by the party of the first part to deliver certain pasture lands to the party of the second part, and an agreement by the latter that the party of the first part can have the use of the specified pasture, is not invalid on the ground that it is merely an unaccepted offer by the first party. By signing it both parties became bound by its terms to give and take as therein provided: Stubblefield v. Imbler, 33 Or. 447, 54 Pac. 198.

A contract to purchase a tract of land, provided the title proves satisfactory, should be in writing in order to be binding: Watson v. Brooks, 13 Fed. 541.

AGENCY.-The right of preserving and enforcing a mechanics' lien is not an interest in land, and the agent's authority to act with reference to it need not be in writing: Hughes v. Lansing, 34 Or. 124, 55 Pac. 95, 75 Am. St. Rep. 574.

§ 798. Evidence of Representations as to Third Persons.

No evidence is admissible to charge a person upon a representation as. to the credit, skill, or character of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. [L. 1862; D. Cd. § 776; H. C. § 786.]

The signature of a bank cashier with his official title, appended to a letter bearing the bank's name at its head, is a signature of the bank within the meaning of this statute: Nevada Bank v. Portland Nat. Bank, 59 Fed. 339.

TITLE X.

OF THE PRODUCTION AND EFFECT OF EVIDENCE, AND THE RIGHTS AND DUTIES OF WITNESSES.

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VI.

OF THE MANNER OF TAKING DEPOSITIONS OUT OF
THE STATE.

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§ 799. Evidence to be Produced by Party Having the Affirmative Issue.

The party having the affirmative of the issue shall produce the evidence to prove it. Therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. [L. 1862; D. Cd. § 777; H. C. § 787.]

See § 717.

BURDEN OF PROOF.-A party affirming a cause of action or defense always has the burden of proof in relation thereto, and an instruction to that effect when requested should be given: Schumann v. Wager, 36 Or. 65, 58 Pac. 770.

The person alleging fraud to vitiate an agreement has the burden of proof thereof, and such burden is on one who seeks to surcharge and falsify a settled account: Fisk v. Basche, 31 Or. 181, 49 Pac. 981; Schoellhamer v. Rometsch, 26 Or. 405, 38

Pac. 344; Wimer v. Smith, 22 Or. 475, 30
Pac. 416.

Where an agreement, which is the consideration of the contract sued upon, is set out in the answer, with averment of nonperformance of plaintiff's engagements under it, and the replication admits the agreement but puts in issue the allegation of nonperformance, the burden of proof to show performance is on the plaintiff: Briscoe v. Jones, 10 Or. 63; to the same effect, see Ladd v. Mason, 10 Or. 315.

$ 800. Alteration in Writing, Who to Explain - What Explanations May be Made.

The party producing a writing as genuine which has been altered, or

appears to have been altered, after its execution or making, in a part material to the question in dispute, shall account for the appearance or alteration. He may show that the alteration was made by another without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that, he may give the writing in evidence, but not otherwise. [L. 1862; D. Cd. § 778; H. C. $788.]

A material alteration of an instrument, made with fradulent and vicious intent by the party claiming benefit under it, avoids the instrument and extinguishes all liability thereon; but where the alteration of the instrument is prompted by honest motives, with the intention of correcting it to correspond with what the parties in good faith believed to be the true engagement of the parties at the time of its execution, the act does not destroy the legal efficacy of such instrument: Wallace v. Tice, 32 Ór. 289, 51 Pac. 733.

Where a record which is offered in evidence is interlined, erased, and mutilated, the interlineations, erasures, and mutilations should be fully and satisfactorily explained, especially where it is sought by a record in such condition to contradict a certified copy which appears to have been formally and regularly transcribed: Dolph v. Barney, 5 Or. 210; Simpson v. Windsor, 21 Or. 382, 28 Pac. 72.

The fact that an erasure appears in a sheriff's return on a writ does not render the writ inadmissible in evidence, where it is shown that the erasure is in the sheriff's own writing, and was made before the return was filed: Crossen v. Oliver, 37 Or. 517, 61 Pac. 885.

An erasure shown not to have been made after its execution, even after admission in evidence of the instrument, renders such instrument admissible proof: Nickum v. Gaston, 28 Or. 329, 42 Pac. 130.

Where an action is brought on a promissory note by an indorsee, and the execution of the note is admitted, but its transfer to plaintiff is denied, the note itself is competent evidence for the purpose of proof of such transfer, though it appears to have an erased indorsement that is unexplained:

First Nat. Bank v. Mack, 35 Or. 122, 57 Pac. 326.

Where the payee of a note, payable "on or before" a certain date, wrote on the face of it before maturity and without the consent of the maker, extending the time of payment thereof to a later day certain, the change of time of payment was not such an alteration as avoided the note, because it left the maker free to pay the note on or before such date, while it restrained the payee from compelling him to do so before that time: Drexler v. Smith, 30 Fed. 754. When a person executes a bond as surety and leaves it with his principal for delivery to the obligee, and before doing so the former procures a person to attest the signature of the surety, who is not authorized to do so, such attestation is not an alteration of the instrument that impairs or affects its value as an instrument of evidence in the hands of the obligee, because it was made before delivery: Hall V. Weaver, 34 Fed. 104.

When it is apparent that an alteration has been made, parol evidence is admissible to explain under what circumstances, when, and by whom it was made: Wren v. Fargo, 2 Or. 20.

Adding to a promissory note the words "in gold coin" is a material alteration: Wills v. Wilson, 3 Or. 308; and if the plaintiff took the note, knowing it was altered without the consent of one of the makers, he can not recover against the maker not consenting; but if the plaintiff was without fault, and was deceived, and received the note believing that it was altered by both the makers, the plaintiff is entitled to recover against the one not consenting, upon the original note to the same extent as if the alteration had not been made: Wills v. Wilson, supra.

CHAPTER II.

OF THE MEANS OF THE PRODUCTION OF EVIDENCE.

§ 801. Subpena for Witness Defined.

The process by which the attendance of a witness is required is a subpœna. It is a writ directed to a person, and requiring his attendance, at a particular time and place, to testify as a witness in a particular action, suit, or proceeding therein specified, on behalf of a particular party therein mentioned. It may also require him to bring with him any books, documents or other things under his control which he is bound by law to produce in evidence. [L. 1862; D. Cd. § 779; H. C. § 789.]

A writ, though not in the form required by this section, which requires the attendance of a witness, is sufficient and must be obeyed: State ex rel. v. Bourne, 21 Or. 227, 27 Pac. 1058.

§ 802. Subpoena, how and by Whom Issued.

The subpoena is issued as follows:

1. To require attendance before a court of record, or at the trial of an issue therein, or out of such court in an action, suit, or proceeding pending therein, by the clerk of such court;

2. To require attendance before a commissioner appointed to take testimony, by a court of the United States, or a territory therein, a sister state, or any foreign country, by any clerk of a court of record, in places within the jurisdiction of such court;

3. To require attendance before the judge, justice of the peace, or other person authorized by law to take the testimony or affidavit of another, by such judge, justice of the peace, or other person, in the places within their respective jurisdiction. [L. 1862; D. Cd. § 780; H. C. § 790.]

The clerk of a court of record is authorized to issue a subpoena requiring the attendance of a witness before a resident commissioner appointed by a court of a sister state to take testimony to be used in that state, and the subpoena when issued is the process of the court whose clerk

issued it: State ex rel. v. Bourne, 21 Or. 227, 27 Pac. 1058.

A subpoena may be issued to require a person to appear before an officer authorized to administer oaths in order that such officer may take his deposition: Wheeler v. Burckhardt, 34 Or. 507, 56 Pac. 644.

§ 803. Subpoena, When and to Whom Issued.

The subpoenas authorized by subdivisions 1 and 2 of the last section, upon the request of a party or an attorney of the court, shall be issued by the clerk in blank, and delivered to such party or attorney, who may thereafter fill up such blank with the name of the witness or witnesses that he may desire to be subpoenaed, and cause the same to be served as in this chapter required. [L. 1862; D. Cd. § 781; H. C. § 790.]

§ 804. Subpoena, how Served.

A subpoena may be served by the party or any other person over eighteen years of age. The service is made by reading and showing the original, and delivering a copy or ticket containing its substance to the witness personally, giving or offering to him at the same time the fees to which he is entitled for travel to and from the place designated, and one day's attendance there. Such service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. [L. 1862; D. Cd. § 782 ; H. C. § 792.]

There can be no due service of a subpoena without either giving or offering to the witness at the time of the service the fees to which he is entitled for traveling to and

from the place designated, and one day's
attendance there: Lombard v. Smith, 37 Or.
26, 60 Pac. 388.
See note to § 807, post.

8805. How Served if Witness Concealed.

A sheriff, his deputy, or some person specially appointed by him, but none other, is authorized and required to break into any building or vessel in which a witness may be concealed, so as to prevent the service of a subpœna, and serve the same upon such witness. [L. 1862; D. Cd. § 783; H. C. § 793.]

$ 806. Proof of Service of Subpoena.

Proof of service of a subpoena shall be made in the same manner as in the service of a summons. [L. 1862 ; D. Cd. § 784; H. C. $ 794.]

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§ 807. Where Witness Obliged to Attend.

A witness is not obliged to attend for oral examination or otherwise at a place outside of the county in which he resides, or in which he may be served with a subpoena, unless his residence be within twenty miles of such place; except that, in an action, suit, or proceeding pending in a court of record, the court or judge thereof, upon the affidavit of the party, or some one on his behalf, showing that the testimony of the witness is material, and his oral examination important and desirable, may indorse upon the subpœna an order for the attendance of the witness; the service of such subpoena and order, and the payment of double fees to the witness, are sufficient to require his attendance, if he be served within the state, in the same manner as if he resided in the county. [L. 1862; D. Cd. § 785; H. C. § 795.]

This section, allowing double mileage to witnesses, does not apply to criminal cases: Sargent v. Umatilla County, 13 Or. 443, 11 Pac. 225.

A witness residing without the county and more than twenty miles from the place of trial, when requested by order to attend for oral examination, is entitled to be paid double mileage: Burrows v. Balfour, 39 Or. 488. 65 Pac. 1062.

Where the affidavit follows the language of this section the sufficiency of the order

for the witness' attendance, based thereon,
can not be questioned on objections to the
cost bill: Burrows v. Balfour, supra.
In an action to recover a payment on
certain property because of failure of title,
an affidavit for a witness residing outside
of the county, averring that such witness
would testify that he told plaintiff prior to
the purchase of the state of the title, is a
sufficient showing as to materiality: Bur-
rows v. Balfour, supra.

§ 808. Person Present Compelled to Testify.

A person present in court or before a judicial officer may be required. to testify in the same manner as if he were in attendance before such court or officer on a subpoena. [L. 1862; D. Cd. § 786; H. C. § 796.]

§ 809. Disobedience' to Subpoena.

Disobedience to a subpoena, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer before whom he is required. to attend or the refusal takes, place, and if the witness be a party, his complaint, answer, or reply may be stricken out. [L. 1862; D. Cd. § 787; H. C. § 797.]

As to contempt, see § 662, ante, and note.

Where the defendant refuses to appear as a witness, and permit his deposition to be taken upon subpoena by the adverse party, his answer may be stricken out: Wheeler v. Burckhardt, 34 Or. 507, 56 Pac. 644.

§ 810. Forfeiture for Disobedience.

A witness disobeying a subpoena duly served shall also forfeit to the party requiring his attendance the sum of fifty dollars and all damages which he may sustain by the failure of the witness to attend; which forfeiture and damages may be recovered by an action at law. [L. 1862; D. Cd. § 788; H. C. § 798.]

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