Opinion by
Mr. Chief Justice McBride.
1. The evidence as to ,the sale and transfer of the note is contradictory, but as there was evidence introduced on behalf of plaintiff to that effect, which was sufficient to go to .the jury, we are precluded from considering its weight or sufficiency: Article VII, Section 3, of the Constitution, as amended November 8, 1910 (Laws 1911, p. 7).
2. Unless there was some ruling or instruction of the court which prejudiced the substantial rights of the defendants, we must therefore hold that the transfer of the note was made on May 8, 1912. The book of account introduced in evidence accompanies the transcript. It appears to contain the name of Green, and his debits are on one page and credits on the other. Excepting names and dates, the writing consists wholly of figures. With the oral explanation made by the witness the entries become clear; without such explanation they would be meaningless. The questions asked witness were merely preliminary to the introduction of the book and were proper. With the explanation thus made, the book was properly admitted in evidence. [205]*205We cannot see how defendants were prejudiced by the answers to the questions objected to.
3, 4. The objection to the testimony of the witness Commack was properly sustained. By this question it was attempted to show that the brother and partner of plaintiff, who was not a party to the action, had stated that Green was indebted to Gleason Bros., who were not parties to the action. It was immaterial whether he was so indebted or not. The question was also incompetent because it called for a declaration or admission of a person not a holder of the note or a party to the action.
5. The question as to where the note was kept was proper under the pleadings. It was claimed in the answer that the plaintiff never, in fact, purchased or held the note, and it was not improper for him to show that he had bought it, taken it into his possession, and kept it in his custody.
6. The instruction in regard to oral admission was in accordance with subdivision 4 of Section 868, L. O. L., and was correct. Instruction No. 4 seems to state the law correctly.
7. There is no charge in the answer that the note was assigned with intent to defraud, or that it was taken with such intent. There is a denial that the note was assigned to plaintiff, and a further denial that plaintiff was the owner and holder, coupled with an allegation that Green was still the owner and holder of the note. This is not sufficient upon which to charge a fraudulent assignment or an assignment with intent to defraud creditors.
8. Where fraud is relied upon as a defense, the facts constituting such fraud should be pleaded: 16 Cyc. 231; Misner v. Knapp, 13 Or. 135 (9 Pac. 65, 57 Am. Rep. 6); Hoyt v. Clarkson, 23 Or. 51 (31 Pac. 198). There is therefore no issue raised in the pleadings as to a [206]*206fraudulent assignment of the note. The sole question for the jury to decide was whether there was'a sale and transfer of the note before Barton’s garnishment was served upon defendant Denson.
9. The last instruction of the court was not erroneous. The jury were directed to retire and give the case such consideration as they might think it was entitled to, and return a verdict as soon as consistent with due deliberation on the case, and consistent with their consciences as to the verdict they should render. This is the duty of a jury in every case, and it was not improper for the court to remind them of it.
The judgment is affirmed. Affirmed.
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