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Opinion of the Court-Upton, C. J.

passage of the act, the whole prescribed period in which to commence his action.

The language of the act will not extend, even by the most liberal construction, to any cause of action that had already accrued, without including those that had accrued more than two years before the amendment was enacted. The amendment makes but one rule for ascertaining when the period is to commence, and it makes no provision for a period to commence at the passage of the act; the time when the cause of action shall have accrued" is the only point at which the period can commence, and it would be disregarding the statute, rather than construing it, to make the period of two years commence at the passage of the amendment without regard to the time when the cause of action accrued.

If any reasonable construction would exclude from the effect of the amendment all cases in which fully two years had then run, and yet include some other cases in which the cause of action had already arisen, we find no rule for determining which of the latter cases should be included, or for discriminating between causes of action that accrued nearly two years before the passage of the act, and those that accrued a month or even a day previous. The computation commencing in all cases at the time the cause of action accrued, it might include cases that would become barred in a week or a day after the passage of the act. As a general rule such construction is not favored, and courts have refused to give a retroactive effect to statutes of this kind unless that intention is so clear and positive as by no possibility to admit of any other construction. (Wood v. Oakly, 11 Paige, 400; Dash v. Van Kleeck, 7 John. 477; Johnson v. Burrill, 2 Hill, 258; Van Allen v. Feltz, 1 Keys, 332.)

The Court is of opinion that in this class of actions the limitation of two years applies only to those cases where the cause of action accrued after the passage of the amendatory act.

The judgment of the Circuit Court should be affirmed.

Statement of Facts.

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JOHN COGSWELL, RESPONDENT, v. JOHN H.
HAYDEN, APPELLANT.

PLEADINGS DENIAL.--The allegation being that D. "made, executed and de-
livered" a promissory note, is not put in issue by an answer denying
that he delivered it.

INDORSER.-It being necessary for the payee to indorse the note in order to make it negotiable paper, he must be treated as first indorser without regard to the time of his indorsement or the locality of his name on the note.

SECOND INDORSER-ACTION BY.--An action may be maintained by second indorser against first indorser for money paid on the note.

APPEAL from Lane County.

This is an appeal from a judgment recovered at law. The complaint alleges that on May 28, 1872, one William Davidson made, executed and delivered his promissory note to Hayden; that Hayden indorsed it and for value sold and transferred it to one William Barlow; that Cogswell indorsed it subsequent to Hayden; that said Barlow sold and delivered the note to John Rines; that Rines commenced an action thereon in the Circuit Court of Multnomah County and recovered judgment therein against appellant and respondent, for seven hundred dollars and more, gold coin; that execution was issued thereon, and respondent was compelled to pay three hundred and sixty-four dollars and fortysix cents, gold coin, and twenty-seven dollars and seventyfive cents currency; that respondent had filed a notice of said payment upon said judgment, and a claim for repayment, which had been duly entered by the clerk of said court on the margin of the docket where said judgment was entered. The appellant, for answer, denied that William Davidson delivered his promissory note to defendant for any sum; denied that said note was ever delivered to respondent; denied that appellant, for value received, sold or transferred said note to W. W. Barlow, or any other person; denied that respondent indorsed said note subsequent to appellant; denied indebtedness generally; and, for a further answer, alleged that, on the 28th day of May, 1872, appellant and respondent, for the accommodation and benefit of said

Opinion of the Court--McArthur, J.

Davidson, indorsed said note as security for said Davidson; that appellant indorsed said note upon the express condition that the respondent would indorse, of which fact respondent had notice at the same time; that the note was delivered to said Barlow and not to appellant; that appellant paid his half, etc.

The respondent's counsel filed a motion to strike out the denials in appellant's answer, which was granted by the court; also demurred to the matter set up in said answer as a separate defense, which was sustained by the court, and, the appellant refusing to answer over, the court gave judgment for respondent for the relief demanded in the complaint. From these rulings this appeal is brought.

G. B. Dorris, for Appellant.

R. S. Strahan and Thayer & Williams, for Respondent.

By the Court, MCARTHUR, J.:

The allegation in the complaint being that Davidson "made, executed and delivered" the note, is not put in issue by the denial in the answer that he "delivered" the note. Such a denial operates as an admission of the making and execution, facts which in law embrace and include a delivery.

The denial that the note was delivered to Cogswell must, we think, be regarded as immaterial. It was made payable to the order of Hayden, and whenever he indorsed it, as it is admitted he did, he became the first indorser. The only presumption that can arise from Cogswell's indorsement is, that he intended to become second indorser. As in the case of Bacon v. Burnham (37 N. Y. 616), "it must be supposed, in the absence of any proof to the contrary, that perceiving the name of the payee in the note, he indorsed it on the presumption that the name of such payee, to whose order it was made payable, would also, at some time, appear on the note, for only thus would it become negotiable." In the same case it was held that the locality of the names is immaterial; and whether the name of Cogswell should

Points decided.

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appear above or below that of Hayden, or before or after his in point of time, would not change in any respect his position as second indorser. It follows, therefore, that the denial that Cogswell indorsed the note subsequently to Hayden is frivolous.

The denial that appellant, "for value received," sold or transferred the said note to Barlow does not raise an issue, for the reason that the note might have been sold or transferred, and full value not have been received. The denial of indebtedness must, in this action, be treated as a conclusion of law, for none of the facts out of which the indebtedness is alleged to have arisen, are denied.

As to the right of action, we regard it as a settled principle that an action may be maintained by a second indorser against a first indorser, for money paid on account of the note. (Wright v. Butler, 6 Wend. 283.)

The fact that the parties indorsed for the accommodation of Barlow does not, we think, change the rule as to their relative liability. They are governed by the rules applicable to indorsers generally.

Judgment affirmed.

ROBERT HENDERSON, RESPONDENT, v. THOMAS

MORRIS, APPELLANT.

SURPRISE--WHEN PROCEEDINGS RENEWED FOR.-When a party has been misled or taken by surprise by the act of the adverse party, it devolves on him to bring the fact to the knowledge of the Court, and if he seeks to review the point on appeal he should make the showing a part of the record.

REVIEWING MATTER OF DISCRETION.-Allowing or refusing an amendment is addressed to the discretion of the Court, and will be reviewed only for the purpose of determining whether there has been an abuse of discretion. Error will not be presumed.

APPEAL from Yamhill County.

The facts are stated in the opinion of the Court.
Hurley & Sullivan and Boise & Willis, for Appellant.
John Catlin and Thayer & Williams, for Respondent.

Opinion of the Court-Upton, C. J.

By the Court, UPTON, C. J.:

The appellant was defendant in the Circuit Court, and he assigns as error a ruling permitting the plaintiff to amend his complaint, and also a ruling permitting the plaintiff to read in evidence a transcript of the plaintiff's book of accounts.

The first count of the complaint was for money loaned, in the amount of four hundred dollars. The amendment was permitted in reference to another count which, in the original complaint, was as follows: Plaintiff for further cause of action alleges that the defendant is indebted to the plaintiff in the sum of two hundred and sixty-nine dollars and eighty-eight cents, balance upon an account for money deposited, for goods sold and delivered to the defendant, for money paid to the defendant at the defendant's request, one thousand dollars check sold, assigned and delivered to the defendant between the 17th day of June, 1871, and the 14th day of March, 1872, a statement of which account is hereto attached and made part of this complaint." The defendant answered the complaint, without objection to its form, admitting that he purchased the check of the plaintiff for one thousand dollars, but alleging that he paid for the check in money at the time of the purchase. The defendant also set up a counter-claim for goods sold and for money paid to the plaintiff. The replication admits that at the time the check was sold to the defendant the defendant handed to the plaintiff one thousand dollars therefor, but alleges that on the same day the plaintiff deposited the same money with the defendant. Upon these pleadings the parties went to trial before a jury, and it was shown in evidence that the plaintiff sold the check to the defendant, who handed to him the money (one thousand dollars) for it, and that immediately after receiving the money the plaintiff returned it to the defendant and left it in his hands. After the introduction of the evidence and before the argument, the plaintiff was permitted to amend the complaint, and to proceed for the one thousand dollars, thus received for the

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