satisfactorily answered. If Bird had not been "so slow in coming around right," it might, perhaps, have been identified by possession and user.

Tested by the evidence, there is a lack of certainty as to the description of the land to be conveyed by Whitney to Bird. The assumption has been that he was in possession of the land in controversy, and that this was the identical land which was the subject of the agreement. We have conceded this, but leaving it out of the case, and there is nothing in the evidence to indicate the quantity of the land, nor to fix its boundaries. There is also the same want of certainty in the money part of the consideration, some testifying that the price of the land was to be two dollars per acre, as alleged in the bill, and others that it was to be the price of land on the other side of the creek; but where on the other side of the creek, and the price, is left to conjecture. The weight and preponderance of the evidence is undoubtedly against the allegations of the bill, and this the plaintiff confirms by his testimony, upon reflection, when recalled.

In all this there is a lack of that certainty and precision which characterizes written contracts, and which is the special requirement of parol agreements to be specifically executed. To take a parol contract for the sale of land out of the statute, the evidence must show the quantity of the land, define its boundaries, and fix the consideration. The certainty required has reference both to the description and the estate to be conveyed. Mathews v. Jarrett, 20 W. Va. 415; Hart v. Carroll, supra; Wat. Spec. Perf. § 152. And the rule as to the requirement of certainty and precision in all the terms of the contract is enforced with more stringency, as in this case, against assignees and representatives of the contracting parties. In Odell v. Morin, 5 Or. 96, the court say:

"The rule that a specific performance will be refused where the contract is vitiated by uncertainty, is applied with more than ordinary stringency against assignees and representatives of the contracting parties."

It is insisted that the title of the plaintiff is left in doubt by the evidence, and that this fact alone ought to be sufficient to defeat the claim of the plaintiff, on the ground that the defendants are not obliged to accept a doubtful title to the right of way. But it is not necessary for us to examine or determine this aspect of the question. We are of the opinion that the court below did not err in dismissing the bill, and the decree must be affirmed.

(12 Or. 95)

STATE v. LURCH.

Filed March 19, 1885.

1. CRIMINAL LAW- OBTAINING MONEY UNDER FALSE PRETENSES - PROMISSORY NOTE-SIGNATURE - EVIDENCE- MAKER'S NAME SUBSCRIBED BY ANOTHER UNDER AUTHORITY.

Upon trial upon an indictment for obtaining money under false pretenses, the fact charged being that the accused bad given as security for a loan, and thereby obtained money, promissory notes of third parties, representing that they were genuine, the accused may offer testimony to show that the names subscribed to such notes had been written by himself, under instructions of the parties whom he had represented as the makers.

2. PROMISSORY NOTE - GENUINENESS OF NOTE SUBSCRIBED BY PARTY NOT THE APPARENT MAKER.

A promissory note, to which the name of the apparent maker has been subscribed by another party, under the instructions of such apparent maker, is a genuine note, and will bind the party giving such instructions.

Indictment No. 1. Appeal from Lane county.

W. R. Willis, for appellant.

J. W. Hamilton, Dist. Atty., and Geo. S. Washburne, for respondent.

LORD, J. The defendant was indicted, tried, and convicted for obtaining money under false pretenses. The Criminal Code provides that "upon a trial for having, by any false pretense, obtained the signature of any person to any written instrument, or obtained from any person any valuable thing, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing, but such pretense, or some note or memorandum thereof, must be in writing, and either subscribed by or in the handwriting of the defendant.' Code, p. 362, § 173.

The substance of the allegation is that the defendant, intending to cheat and defraud Phoebe B. Kinsey of her money and property, falsely and feloniously did pretend and represent that a certain instrument in writing, purporting to be a promissory note, was the genuine promissory note of Lurch Bros., A. H. Spare, and Samuel Dillard; that the two signatures to the said note, purporting to be the signatures of the said Spare and Dillard, were the true and genuine signatures of the said Spare and Dillard; and that the said Spare and Dillard had signed the said note as security for the payment of the same, when in truth and fact the said note, purporting to be the note of Lurch Bros., and signed by the said Spare and Dillard, was not the genuine note of the said Spare and Dillard, or either of them, nor their true or genuine signatures, or either of them, but were forgeries, which fact the said defendant well knew, etc., by means of which said false pretense and pretenses the said defendant did then and there, etc., unlawfully, knowingly, and feloniously obtain from the said Phoebe B. Kinsey $900, etc., with the intent to cheat and defraud the said Phoebe B. Kinsey of her goods and money.

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By the bill of exceptions it appears that the state, to maintain the issue upon its part, called as a witness Mrs. Phoebe B. Kinsey, who testified that on December 15, 1883, Mr. Washburne, her agent and attorney, came to her house with the defendant and said that the defendant wanted to borrow $900; that she asked Mr. Washburne what security the defendant could give, and he said he could give the note of Lurch Bros., with Samuel Dillard and A. H. Spare as security. The witness was then asked what the defendant Lurch said to her in regard to getting Dillard and Spare to sign the note, and answered that he told her that he would take the note to Cottage Grove and have it signed by Dillard and Spare, and return it next Monday; this was on Saturday. Washburne being called, testified in substance that the defendant came to his office and wanted to borrow $700 to $900; that he told him that Mrs. Kinsey had some money to loan, and that they went to see her, and that she said that she would let the defendant have the money if I approved of the security. Being asked what security the defendant said he could give, the witness answered that the defendant said he could give Spare and Dillard. He was then asked, “What did Lurch say at the time in regard to getting Spare and Dillard to sign the note themselves?" and answered that the defendant said that he would take the note to Cottage Grove and get Dillard and Spare to sign it, and return it on Monday. "He came back Monday with the note, and also with some notes as collaterals. I took the notes and collaterals, and gave him the money, $900." A. H. Spare being called, testified that he did not sign the note described in the indictment, and did not give any person authority to sign it. Samuel Dillard being called, also testified that he did not sign the note, and never authorized any one to sign the note. Some exceptions were taken to this evidence, and other evidence offered and received, but the purposes of this case do not require us to note them.

The defense then offered to prove by the defendant that the signatures of A. H. Spare and Samuel Dillard upon the note were written by the defendant, under the direction and authority of A. H. Spare and Samuel Dillard. This was objected to, and the exception taken involves the ground of error upon this appeal. The evidence shows that the defendant represented that he could give these names as security for the payment of the note, and it was, in fact, the reliability of these names which induced Mrs. Kinsey to purchase the note. It was the security she was concerned about, and these were the names the defendant offered. Subsequently, when the note was presented with their signatures, or what purported to be their signatures, the note was accepted, and the money thus obtained. Dillard and Spare both testified that they did not sign the note, nor give any authority to any one to put their signatures to it. In the opening of the case, the defendant had admitted that he had written the names of Spare and Dillard upon the note, but by the direction and authority of each of them. This, however, was immaterial; for the record discloses a

ease had been made against the defendant unless he could obviate the effect of this evidence. Now, it seems to us it must be conceded, if both Spare and Dillard did direct and authorize the defendant to put their names or signatures to the note, it became their binding obligation, upon which they were liable, and Mrs. K. got what she bought. or contracted for. Although the manual or physical act of writing the names was not theirs, it became so by their direction, consent, and authority, and was, in legal effect, their signatures. Their direction to sign their names was a signing by them, and in such case the signatures would not be forgeries, nor the note spurious. It is not a false writing, but a genuine note. And, if this be true, the defendant gave to Mrs. Kinsey the security which he represented to her that he could procure, and upon which she parted with her money. The state had deemed it material to prove that the defendant had no authority from Spare and Dillard, or either of them, to sign their names, and if it was, why should not the defendant be allowed to negative and contradict that evidence?

The object of the defendant, by the evidence offered, was to show that he had authority from each of them to put their signatures to the note, for the purpose of showing that the note was genuine, and that their signatures, although written by him, were authorized by them, and not forgeries, and that the security that he had represented he would give had been furnished, and thus obviate the intent of committing the crime with which he was charged. What effect this evidence might have had upon the result was for the jury to determine, and with which we have nothing to do.

We think the evidence was admissible, and that it was error to exclude it. The judgment must be reversed, and a new trial ordered.

1. CRIMINAL LAW-FORGERY-EVIDENCE-PROOF NOTWITHSTANDING ADMISSION OF ACCUSED- DIFFERENCE OF HANDWRITING.

In order to prove the forgery of a name upon a promissory note it is proper, notwithstanding the admission of the accused that he wrote the name,―representing that his act was authorized by the party whose name he wrote,-to show by testimony that the name had the appearance of having been written by some person other than the one who wrote the body of the note, so that the jury may take into consideration the fact of a disguise of handwriting, together with other facts, in looking into the intent of the accused.

2 SAME-LAW OF OREGON-INTENT TO DEFRAUD NOTWITHSTANDING NO INJURY DONE.

In order to convict an accused party, under section 592 of the Criminal Code of Oregon, the paper must be proved to have been "uttered or published as true and genuine." The intent must exist, but though it wholly fail to produce injury or to defraud any one, the crime is committed.

2. SAME EVIDENCE LAW OF OREGON ACCUSED AS WITNESS EXTENT OF CROSS-EXAMINATION ALLOWED.

The statute of Oregon, which in a criminal case allows the accused to testify in his own behalf, (Laws 1880, pp. 23, 29,) does not compel him to be a witness against himself, beyond his submission to a cross-examination upon the facts developed in his examination in chief.

4. SAME-EVIDENCE-RECALLING OF WITNESS NOT PERMITTED FOR PURPOSE OF TESTING TRUTH OF HIS FORMER TESTIMONY.

It is not proper for a party who calls a witness to subsequently recall him in order to prove or attempt to demonstrate that he had told the truth in his first examination.

6. SAME-APPELLATE COURT-ERRORS NOT IN PREJUDICE OF ACCUSED-CONSTITUTIONAL GUARANTY.

The appellate court, when the errors admitted do not seem to have prejudiced the accused, will not ordinarly reverse a judgment, but when the error consists of the infraction of a constitutional guaranty in favor of personal liberty, such as compelling an accused party to criminate himself, the court will presume an injury and adjudge accordingly.

WALDO, C. J. dissents.

Indictment No. 3. Appeal from Lane county.

W. R. Willis, for appellant.

J. W. Hamilton, Dist. Atty., for respondent.

THAYER, J. Among the several grounds of error assigned in this case, there are three which deserve especial notice, viz.: Whether the promissory note alleged to have been forged was uttered or published as true and genuine, with intent to injure or defraud any one, within the meaning of section 592 of the Criminal Code; whether the court had the right to require the appellant, when upon the stand as a witness, to testify to facts he had not testified to in his direct examination, and to write his name, and that of Lurch Bros., and also of J. V. Thornton; and whether it was proper to recall said Thornton, after he had testified in the case that he did not sign the note, and have him write his name, to be compared with the signature on the note. The bill of exceptions shows that a large amount of immaterial testimony was taken in the case which doubtless protracted the trial to an unnecessary length. The question to Thornton, when on the