
    [Filed May 13, 1889.]
    ROBERTS v. PARRISH.
    Practice — Deposition by Party in his Own Behalf — Witness.—A person who is a party tp¡ an, action is also, a competent .witness therein,, and his deposition may be taken in his own behalf in any of the cases specified in section 814, Hill’s Code, applicable to, the circumstances or condition of such witness.
    Depositions Taken by Adverse, Party. — Subdivision 1, section 814, Hill’s Code, confers the power and authority on either party to an action or proceeding to take the deposition of “the adverse party.” It confers a right that has no existence outside of this statute, but it in no manner restricts the right of either party to taka.the deposition of any witness in the caqes enumerated.in thesection.
    Deposition — Bill of Exceptions. — The recital in the bill of exceptions that a certain deposition is made part of it is ineffectual for any purpose, unless such,deposition is annexed to the bill of exceptions, and in some manner marked or identified as an exhibit.
    Motion for. Nonsuit — Bill of Exceptions — Evidence. — Unless the bill of exceptions shows upon its face that all the evidence before the jury at the time the motion for a nonsuit was made is included therein, this court will not review the.aetion of the court below in overruling such motion. Instructions not Warranted by Facts. — However correct, instructions may he as abstract propositions of law, if they are inapplicable to the facts in evidence in th© particular case, they are properly refused.
    Promissory Note —Indorsement for Collection. — The indorsement.of a promissory note for collection passes such.title to the indorsee as will enable him to sue thereon in his own name, though he paid nothing for such note, but in such case he will hold said note subject to the same defenses that could have been made t,o it iu the.hands of the original payee.
    Appeal, from Wallowa County.
    
      J. D. Slater, for Respondent.
    
      C. II. Finn, for- Appellant.
   Strahan,J.

^The. complaint in this case contains three counts. The first is on, a negotiable promissory note.made by the defendant- to, lane Roberts for$lQ5, dated- August 22, IffSl, and- due one year after date, and indorsed and delivered by the payee to the plaintiff on the twenty-eighth day of July, 18S1. On this note two payments are alleged: Interest up to June 12, 1884, and twenty-two dollars paid January 22, 1887. The second cause of- action is on a non-negotiable note for $115.50, dated July 15,1882, payable to Jane Roberts. It is alleged that this note was sold, assigned, and transferred to the plaintiff by the payee on the twenty-eighth day of July, 1887, for 'a valuable consideration, and it is alleged that the interest had been paid thereon up to June 12, 1884. The third cause of action is on a negotiable promissory note dated October 5,1881, for $175, and interest at ten per cent, arid due one year after date. . It is alleged that the interest was paid on this note up to the twenty-sixth day of December, 1885’, and the further sum of $176.19 paid thereon September 13, 1887.

The answer to the first cause of action denies the indorsement to the plaintiff, and then alleges payment of said note to Jane Roberts before August 1, 1884. The answer to the second cause of action is a denial of the execution of the note therein set out, “except as specially admitted,” and then payment is alleged to Jane Roberts on the first day of August, 1884. The execution of the .third note is also denied; but the answer is silent as to the payments.thereon alleged by the plaintiff. The answer then alleges that on or about June 20,1884, the defendant paid Jane Roberts, the alleged payee of the first two no'tes sued on, the sum of $353 in full of all demands against the defendant and in her favor, including all notes, accounts, and claims then held, or owned by said Jane Roberts against him, and set out and mentioned in plaintiff’s complaint, and while she was the holder thereof, and in full of all accrued interest thereon, and that she then and there undertook and agreed to cancel the same and all demands alleged and pretended to be transferred by her to the plaintiff. It is then alleged, in substance, that Jane Roberts, between the first day of May, 1882, and the thirtieth day of July, 1884, became and was indebted to the defendant in the sum of $353 for services, board, washing,' and pasturage, all of which were furnished to and for her at her special instance and request, and that said Jane agreed and promised to pay the same, which said counterclaim became due and payable prior to the twentieth day of June, 1884, and that the same remains due and payable, except $108 paid prior to July 2,1887, and that said Jane agreed to and with defendant that said $353 and interest should be used in the satisfaction of her claims against the defendant, including all those sued on herein.

Defendant demands judgment for costs, and that the notes mentioned in complaint be canceled and declared satisfied and delivered to the defendant. The reply denies the new matter in the answer. A trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $153.50, from which judgment the defendant has appealed to this court.

The appellant has assigned in his notice of appeal the following errors upon which he intends to rely: 1. Error in the court in allowing the plaintiff’s depositions to be read upon the trial; 2. In permitting interrogatories 6, 8, 9, 10, 11, 13, and 14 of the deposition of John Roberts to be read in evidence to the jury, — each of said interrogatories is copied into the notice of appeal under this assignment, but the answers given thereto nowhere appear in the notice;13. In overruling the appellant’s motion for a nonsuit; 4. In refusing to give the jury this instruction: “The jury are instructed that when a deposition is taken ex parte, though after notice, and the witness thereafter was not subjected to cross-examination, the language used by him would be suspiciously regarded”; 5. In refusing to give the jury this instruction: “The jury are instructed that when a promissory note is assigned without consideration therefor,,, the assignee takes, it as a mere, volunteer, and holds it: subject to all its infirmities, the same as if he had actual notice of them- at the time of the'assignment”; 6. In refusing this instruction: “If the jury believe, from the- evidence, that the plaintiff, before he purchased said notes* knew, or as an. ordinarily prudent man had. reason to believe, from circumstances brought-to his knowledge before-he purchased it, that the defendant had or claimed to.have a defense to. said note, or to some part of it> then the plaintiff is not an innocent holder of said note,.there, being evidence of such knowledge offered by the defendant at the trial.”;, 7. In refusing this instruction: “If the jury believe, from the evidence, that the plaintiff"is. not an innocent holder of said note, as explained in these- instructions, then the- defendant is, entitled to set up the same defense to it that he could have set up if the suit had- been brought by the payee of said notes-”; 8. In instructing the-jury, in substance, that the indorsement of a note for collection gave the indorsee such title thereto as enabled him to sue thereon in his own name. We will now proceed to notice such of these assignments of error-as are deemed important.

1. The first error relied, upon by the appellant is. the introduction of the deposition of the plaintiff, John Roberts. The testimony of this- witness was taken by deposition and offered and admitted on the trial in his own behalf, and the appellant’s contention now is, that the plaintiff’s deposition-could not be taken,in his own behalf. This depends upon, the construction to be given certain sections of the code.. Section 709 defines who is a witness as follows: “Section 709. A witness is a person whose declaration under oath or. affirmation, is received as evidence for any purpose, whether such declaration be made on oral examination or-by deposition or affidavit.” And section 710 authorizes all persons to be witnesses, except as otherwise provided in title 3, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others. Therefore, neither parties, nor other persons who have an interest in the event of an action, suit, or proceeding, are excluded, nor those who have been convicted of crime, nor persons on account of their opinions or religious belief. Section 814 of the code provides: “The testimony of a witness, in this state, may be taken by deposition, in an action at law, at any time after the service of a summons or the appearance of the defendant; and in a special proceeding, after a question of fact has arisen therein in the following cases: 1. When the witness is a party to the action or proceeding by the adverse party; 2. When the witness’s residence is such that he is not obliged to attend in obedience to a subpoena, as provided in section 795; 3. When the witness is about to leave the county and go more than twenty miles beyond the place of trial; 4. When the witness, otherwise liable to attend the trial, is nevertheless too infirm to attend.”

There is no doubt that before a deposition can be read, it must have been taken pursuant to some provision of this section, if taken in the state; but I am unable to agree with the appellant’s construction that where the witness is a party to the action, his deposition can only be taken by the adverse party. The proper construction of these provisions of the code does not seem to be free from difficulty, but I am inclined to the opinion that subdivision 1 of section 814 grants a right to either party to compel his adversary to give his deposition. This right has no existence independent of this statute, and its sole purpose was to declare and secure that right. It was this and some other similar provisions in the code that have rendered bills of discovery absolute, or, at least, that were designed to take their place, and to extend the field of inquiry from suits in equity to actions at law. A person by being a party to an action is not. deprived of the right to be a witness, and the testimony of any witness may be taken by deposition in the cases specified in section 814. It does not affirmatively appear from the bill of exceptions under what particular clause of this section the deposition was taken. It is silent on that subject, but we must intend on this appeal, if the plaintiff could give his deposition at all in his own behalf that he did so under some one of the subdivisons1 of said section. I think therefore that the first assignment of error cannot be sustained. This construction is. adopted with the less hesitancy, for the reason it is the one which has been generally accepted and acted upon by, the bench and bar in this state ever since the code was enacted, but no reported case can be found wherein this precise question has been considered by this court.

2. The second assignment of error relates to several questions which it is said are contained in the deposition of John Roberts. It cannot be overlooked that the objection is, that the court allowed the questions to be read, The objection does not include the answers to such questions. I think it would be conceded that if the answers to the questions were not read, the questions were harmless, —the questions without the answers could not possibly have injured the appellant. But we do not wish to dispose of this objection on any merely technical ground if it can be avoided. We have therefore endeavored to look into the deposition itself to see what aid might be derived from that source, but find ourselves unable to do so, for the reason the deposition is not made a part of the bill of ex-r ceptions. It is true the bill of exceptions recites that the “ deposition is made a part of the bill of exceptions,” but that alone will not suffice. To become a part of the record, it must be either copied into the bill of exceptions or attached to the same as an exhibit, and marked so that the same may be identified. (Morrison v. Crawford, 7 Or, 472.) What is claimed to be' the deposition of the plaintiff in this case is not even attached to the bill of exceptions, but is copied and sent up with a large mass of other useless matter. We cannot therefore determine whether the answers to those questions were prejudicial to the appellant or not.

3. The third assignment of error is equally untenable. Having reached the conclusion that the depositions are no part of the bill of exceptions, we cannot review the ruling of the court in refusing to grant a nonsuit.

4. The fourth assignment of error was not insisted upon in the argument, and will not, therefore, be further noticed, except to say that the instruction asked was properly refused. It was in the nature of a comment on the evidence, which the court could not have properly made. This was evidence which it was the peculiar province of the jury to weigh and consider.

5. The instruction mentioned in the fifth assignment of error was also properly refused. However appropriate in a proper case, it had no application to the facts disclosed by this record. Neither the pleading nor the evidence, so far as appears from the record, point out any infirmities in these notes. There was no claim on the part of the plaintiff that he was protected against any defense the defendant could have made against the original payee of the notes, and therefore this instruction was inapplicable. Whatever defense the defendant had was set up in his answer, and was passed upon by the jury. It does not appear that the fact that the notes were sued upon by .an indorsee in any manner embarrassed or hindered the defendant in making his defense, and we must therefore hold there was no error in refusing this instruction.

6. The same remarks dispose of the sixth and seventh assignments of error.

7. The eighth assignment of error presents the question whether or not the-indorsement of a -promissory note for the purposes of collection passes such title.as enables the indorsee to sue thereon in 'his own.name,.,and we are of the opinion that it does. (2 -Randolph on Commercial Paper, secs. 726, 7,35; Van Santvoord’s Pleading, 115.) The latter authority thus states the principle.: “The holder of a promissory note is -presumed to;-be theiowner and real party in interest-within the meaning of the code. Tli.e production of the note and proof of- signature of the maker and indorser is sufficient, without showing value given, even though.the note was received ¡after ;due.”

It follows that the, judgment of the-court below must be -affirmed.  