claimed that the evidence was admissible as a dying declaration, or, if not as such, then as a confession of guilt of one of the parties to the alleged crime. The Code provides that "the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death," may be given in evidence in a criminal action. Section 1870, subd. 4, Code Civil Proc. The rule, however, goes no further than to make the declarations admissible where the death of the deceased is the subject of the trial, and the circumstances of the death are the subject of the declaration. Whart. Crim. Ev. (9th Ed.) § 288. "Dying declarations are restricted to the act of the killing, and to the circumstances immediately attending it, and forming a part of the res gestæ. People v. Fong Ah Sing, 64 Cal. 253, 28 Pac. Rep. 233. As the declaration offered in evidence here had no relation to the death of the deceased, it was clearly inadmissible as a dying declaration. And as a confession the evidence was equally inadmissible. The rule is settled beyond controversy that in a prosecution for crime the declaration of another person that he committed the crime is not admissible. Proof of such declarations is mere hearsay evidence, and is always excluded, whether the person making them be dead or not. Whart. Crim. Ev. (9th Ed.) § 225; Greenfield v. People, 85 N. Y. 75; Snow v. State, 58 Ala. 372; Lyon v. State, 22 Ga. 400; Kelly v. State, 82 Ga. 444, 9 S. E. Rep. 171.

The point is made that the district attorney, in his closing argument to the jury, was allowed to go beyond the bounds of propriety, and thereby to prejudice the defendant. He said: "In my opening argument I challenged Mr. Head [counsel for defendant] to explain the facts and circumstances of the case upon any other reasonable hypothesis than that of guilt. He did not attempt any explanation. If there had been any other theory on earth by which the circumstances of this case could be explained, Mr. Head would have advanced that theory, and called your attention to it." And again: "There is no theory on the face of the earth-the possession of all this property, and trying to escape from these officers-that he can advance or has advanced." Counsel for defendant objected to these remarks, on the ground that the defendant was not called upon to explain anything; and he went on to argue that the burden never shifted on the defendant, but that he came before the jury with every presumption of innocence, and neither he nor his counsel was under any obligation to furnish any evidence in his behalf; that the remarks were harmful, because their tendency was to shift the burden on the defendant, which the law did not permit. The court overruled the objection, and the defendant reserved an exception. In making its ruling the court stated, in substance, that the defendant was not bound to offer any testimony in his own behalf, and that the burden of proof was never shifted on the defendant; that the jury could not take into consideration the fact that the defendant had not produced himself as a witness, and had not produced

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any witnesses, but that they were entitled to consider all the testimony before them; and it said: "If the evidence is criminating, and not explained, I will allow the district attorney to comment on it. We see no error in the ruling. The record shows that "the district attorney did not allude to or comment upon the fact that the defendant has not taken the stand in his own behalf, or failed to produce any witnesses to explain anything." The remarks complained of evidently had reference only to the testimony before the jury and the inferences to be drawn therefrom. The attorney simply challenged the opposing counsel to explain the facts proved, and give his version of the offense; and in this there was nothing improper.

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Appellant also contends that the court erred in amending, and giving as amended, three of the instructions asked by him, and in refusing to give one that he asked. It does not appear from the record what the amendments made were. The instructions are simply indorsed, "Given amended;" and as given they state the law correctly. A court has a right to amend imperfect instructions, and when it does so its action cannot be successfully complained of. Boyce v. Stage Co., 25 Cal. 460; People v. Dodge, 30 Cal. 450. The instruction not given was properly refused. It stated, in substance, that the facts that defendant was found in possession of the property recently stolen, and was arrested, and while under arrest fled, or attempted to flee, were not sufficient to warrant the finding him guilty, nor even to raise in the minds of the jury a strong presumption of guilt, and that defendant could not be found guilty "except upon the most conclusive proof" that he committed the crime alleged. This is not a correct statement of the law. The "most conclusive proof" is not required, but only that which satisfies the minds of the jurors beyond a reasonable doubt. If given, the instruction would have been misleading and erroneous. We find no error in the record, and advise that the judgment and order be affirmed.

NOTICES-SERVICE BY MAIL.

Code Civil Proc. $$ 1012, 1013, provide for service by mail in certain cases, and that such service shall be by depositing the notice or other paper in the post office, addressed to the person on whom it is to be served at his office or residence. Held that, where a notice attempted to be served by mail was actually received by the person for whom it was intended, the service was sufficient, though it was mailed.

Department 1. Appeal from superior court, Tulare county; M. K. HARRIS, Judge.

Action by Heinlen against Heilbron and others. From an order denying a motion

for a new trial, defendants appeal. Mo. | tion to dismiss appeal denied.

H. H. Welsh, (Daggett & Adams, of counsel,) for appellants. G. A. Heinlen, (R. E. Houghton, of counsel,) for respond

ent.

HARRISON, J. In this action, pending in the county of Tulare, the superior court of that county made an order on the 9th day of February, 1891, denying the defendants' motion for a new trial. The attor ney for the defendants resided and had his office in Fresno, and on the 28th of March, 1891, filed with the clerk of the above court a notice of an appeal by the defendants from the order denying their motion for a new trial. On the day previous ne had deposited in the post office at Fresno a registered letter, containing a copy of the notice of appeal, inclosed in a sealed envelope, with the postage thereon prepaid, addressed to the attorney for the plaintiff, as follows: "G. A. Heinlen, Esq., Attorney at Law, Lemoore, Tulare County, Cal." The letter containing the notice of appeal was not delivered to Mr. Heinlen at Lemoore, but was forwarded to him through the mail from that place to San Jose, on the 31st day of March, and was received by him through the post office at San Jose on the 4th day of April, 1891. The attorney for the respondent now moves to dismiss the appeal upon the ground that the notice of appeal from the said order was not properly served on the attorney for respondent in the manner required by law, in that said service was made by mail, and it was not addressed to the attorney for said respondent, either at his residence or his place of business;" and in support of the motion presents his own affidavit "that previous to the month of February, 1891, deponent resided and had his office in the city and county of San Francisco, state of California;" and that in February, he removed his office and residence to San Jose, and "did not on the 27th day of March, 1891, and has not at any time since said date, and does not now, reside or have his office in the town of Lemoore; that on the said 27th day of March, 1891, and for one month prior thereto, and ever since said date, his residence, office, place of business, and post office address was at San Jose." At the hearing of the motion several affidavits were submitted on behalf of the respective parties for the purpose of determining whether Mr. Heinlen had an office at Lemoore, but we do not deem it necessary to determine this question, although we think that it sufficiently appears from them that the attorney for the appellants had good reason believe that that was the proper place at which to address any notice to be sent to him through the mail. Neither do we determine the question of practice suggested at the argument as to whether the affidavits should be filed in the first instance in this court, or be brought up from the superior court, as a part of the record in that court. Section 1011, Code Civil Proc., provides that the service of notices "may be personal, by delivery to the party or attorney on whom the service is re

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quired to be made;" and section 1012 provides that "service by mail may be made when the person making the service, and the person on whom it is to be made, reside or have their offices in different places between which there is a regular communication by mail;" and in section 1013 it is declared that "in case of service by mail the notice or other paper must be deposited in the post office, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid. The "delivery" which constitutes a personal service under section 1011 need not be made by the individual who is attempting to make the service, but can be effected through a clerk or messenger, or through any agency by which a delivery can be made; and when the notice is so delivered the serv. ice becomes a personal service. The fact that the person upon whom the service is to be made resides or has his office in a different place from that of the person making the service, does not require that the service be made by mail, or preclude a personal service, and the person seeking to make the service can avail himself of any agency,-such as Wells, Fargo & Co., or the instrumentality of the post office department,—with as much effect as if he had employed any other messenger. The delivery of the notice through such agency renders the service personal, and the proof of such delivery establishes a personal service.

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The service by mail authorized by section 1012 does not contemplate a delivery as a part of the service, as is seen by the provision of section 1013, that "the serv. ice is complete at the time of the deposit" in the post office. Such a service is termed a "substituted service," and is intended to take the place of and be equivalent in point of law and effect to a personal service. Inasmuch, however, as it is the general rule that there shall be personal service of all notices in legal proceedings, and that substituted service can be made only in the cases and in the manner designated by the statute, it follows that it is incumbent upon any one who would avail himself of this mode of service to have it clearly appear upon the record that the case is one in which such service is permitted, and that the mode pointed out by the statute for making such service has been strictly followed. If the only proof of service ap. pearing in the record were that a copy of the notice of appeal had been deposited in the post office, addressed to the attorney of the respondents at a place confessedly not his office or place of residence, or which was in some suitable mode shown not to be his office or place of residence, and a motion was made on that ground to dismiss the appeal, we should be compelled to grant the motion, for the reason that the appellant would have failed to show that any notice of appeal had been served, and, therefore, that it did not appear that we had any jurisdiction of the appeal. Jurisdiction, however, as has been frequently held, does not depend upon the proof of service, but upon the fact that service has been made, -In re Newman's Estate, 75 Cal. 220, 16 Pac.

Rep. 887; Sichler v. Look, (Cal.) 29 Pac. | Rep. 220; and a motion to dismiss an appeal upon the ground that the record does not show a sufficient service of the notice will be denied if the appellant can show by other proof that the notice was properly served, even though the transcript be defective in that regard,-Perri v. Beaumont, 88 Cal. 108, 25 Pac. Rep. 1109. The affidavit herein of the attorney for the re spondent that on the 4th day of April, 1891, he received a copy of the notice of appeal at his office and residence in San Jose, through the agency of the post office, is equivalent to an admission of serv. ice, indorsed by him upon the original notice, and establishes that there has been a personal service upon him of such notice, and that the court has thereby obtained jurisdiction of the appeal. The motion is denied.

We concur: GAROUTTE, J.; PATERSON, J. (48 Kan. 590)

RICE et al. v. MOORE. (Supreme Court of Kansas. May 7, 1892.) LIMITATIONS-ACTION ON FOREIGN JUDGMENT— REVIVOR.

1. An action upon the judgment of a sister state must be brought in Kansas within five years, or it will be barred.

2. The revivor of a judgment in Ohio is merely a continuation of the original suit, so as to restore the judgment, and such revivor, made without an appearance by or personal service upon the defendant, who has been a resident of Kansas for more than five years after the rendition of the original judgment, will not remove the bar of the statute of limitations of this state. (Syllabus by the Court.)

Error from district court, Garfield county; J. C. STRANG, Judge.

Action by Rice, Brown & Co. against William Moore to recover a balance due on a judgment. On a judgment sustaining defendant's demurrer to the petition plaintiffs bring error. Affirmed.

H. R. Boyd, for plaintiffs in error. Milton Brown, for defendant in error.

HORTON, C. J. On the 27th day of October, 1879, Rice, Brown & Co., a firm doing business in the state of Ohio, recovered a personal judgment against William Moore in the county of Ottawa, in that state. There is an unpaid balance upon the judgment of $249.30. The judgment became dormant under the statutes of Ohio; but at the January term for 1889 of the court of common pleas of Ottawa county it was revived by publication. William Moore was not personally served with any notice that the judgment would be revived, nor did he enter any appearance in the proceedings of revivor. It is not alleged in the petition that the defendant, William Moore, is a nonresident of this state, or that he has ever been out of the state, or has absconded, or concealed himself. This action was commenced on the 1st day of May, 1889, nearly 10 years after the rendition of the judgment in Ohio, and a few months after the revivor by publication in January, 1889. A general demurrer was filed to the petition, which was sustained by the court below. Rice, Brown & Co. complain of this ruling.

The question is whether the petition is sufficient, in view of the five-years statute of limitations prescribed by our stat. ute. Section 18, Civil Code; Burns v. Simpson, 9 Kan. 658; Mawhinney v. Doane, 40 Kan. 676, 17 Pac. Rep. 44. Where it is apparent from the face of the petition that the debt or claim is barred, a demurrer is properly sustained. Zane v. Zane, 5 Kan. 134; Stanclift v. Norton, 11 Kan. 218. If there had been no revivor of the judgment in Ohio, we suppose it would be conceded, even if the judgment had not become dormant under the statutes of that state, no recovery could be had upon the judgment in this state, if Mr. Moore had been an actual resident of this state for five years the full time of our limitation-after the rendition of the judgment. The authorities are to the effect that "remedies are to be governed by the laws of the country where the suit is brought." The laws of this state where the action is brought must govern the limitation. It was recently decided by this court in Bauserman v. Charlott, 46 Kan. 480, 26 Pac. Rep. 1051, that, "where an action is brought in this state, upon a judgment of a court of record of a sister state, which is in full force in that state, the statute of limitations of this state, and not that of the sisterstate, will control." U. S. v. Donually, 8 Pet. 372. It is contended, however, as the judg. ment was revived in Ohio in January, 1889, -a few months only before this action was commenced,-that the bar of the statute of limitations is not effective. A scire facias to revive a judgment is not a new suit, but the continuation of an old one. Freem. Judgm. § 444; Elsasser v. Haines, 52 N. J. Law, 10, 18 Atl. Rep. 1095. In Irwin v. Nixon, 11 Pa. St. 425, it is said to be “a common, plain, and familiar principle that a scire facias to revive a judgment is but a continuation of the original action, and the execution thereon is an execution on the former judgment. The judgment on the scire facias is not a new judgment, giving vitality only from that time, but it is the revival of the original judgment, giving, or rather continuing, the vitality of the original judgment, with all its incidents, from the time of its rendition." Lessee of Penn v. Klyne, 1 Pet. C. C. 448; 2 T. & H. 379. Hence the proceeding in Ohio iu January, 1889, must be regarded as a continuation only of the former suit or judgment. This seems to be admitted in the brief of counsel for plaintiff, for it is stated that "reviving a judgment is the act by which a judgment which has lain dormant or without any action upon it for a year and a day is, at common law, again restored to its original force." The revivor of the Ohio judgment removes its dormant quality only, but does not affect the stat. ute of limitations in this state, or in any way prevent its running against the judg ment rendered in 1879. We think, within the provisions of our Civil Code concerning limitations, the action upon the judg ment ought to have been brought within five years after its rendition, if during all of that time Moore was personally present within this state. If brought after five years, it is too late. If, however,

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The district court confirmed the report of the referee as to the findings of fact, and overruled the same as to the conclusions of law, for the reason that upon the facts found the promissory notes mentioned were null and void, by reason of the provisions of paragraph 2228 of the General Statutes of 1889, and rendered judgment against the plaintiff for costs. The plain tiff made a motion for a new trial, which was overruled, and brings the case here, assigning as error the overruling of the referee's conclusions of law.

The question presented by the record in this case is whether or not the frauds found by the referee rendered the notes sued upon in this action void. Section 94 of the crimes act, upon which the district court based its conclusions of law, reads as follows: "Every person who, with the intent to cheat or defraud another, shall designedly, by means of any false token or writing, or by any other false pretense, obtain the signature of any person to any written instrument, or obtain from any person any money, personal property, right in action, or any other valuable thing or effects whatsoever, upon conviction thereof shall be punished in the same manner and to the same extent as for feloniously stealing the money, property, or thing so obtained." It is contended by the plaintiff in error that the findings of the referee do not bring this case within the provisions of this section of the crimes act; that the signatures to the notes sued on were not obtained by means of the inventory which the referee found contained false and fraudulent entries. Let us see if this position be correct. The consid. eration moving to the execution of the notes was that the goods should inventory more than $5,250; otherwise no notes were to be given. How was the result brought about? In order to obtain the notes, the invoice must be swelled to an amount beyond the sum named. This was done by fraud. It must have been done designedly, because the referee finds that O. J. Fleming and Grant Guthrie, by an understanding between them and for the purpose of cheating and defrauding the defendants, inventoried goods not in stock, goods wholly worthless, charged for some goods twice, and overcharged on others. By this finding we have the false writing, that its purpose and object was fraudulent, and that the writing was known to be false. The fourth finding established the fact that the notes and mortgage sued on were executed and delivered by the defendants for the difference between the apparent value of the goods as shown by the inventory and the sum of $5,250. The defendants executed the notes because the inventory exceeded the last-named amount. It would not be fair to say that Greene had an opportunity to and did examine the goods, and therefore relied upon his own judgment rather than the inventory. An inspection of the goods would not establish the correctness of the inventory, which was not delivered until the notes and mortgage bad been signed. Both parties must have been governed by this inventory; they acted upon it. The notes were made for

the surplus as shown by this inventory. It was the means by which the notes and mortgage were procured.

The

If we are correct in this conclusion, it necessarily follows that the transaction was illegal. There was no other consideration for the notes sued on. If the goods did not invoice more than $5,250, the defendants had nothing to pay. It is obvious from the findings of the referee that the contract was an entirety, and is not susceptible of divisibility. The fraudulent transaction, as found by the referee, was a plain violation of the statutory law, and cannot form the basis of a valid contract. Gerlach v. Skinner, 34 Kan. 86, 8 Pac. Rep. 257; Hinnen v. Newman, 35 Kan. 709, 12 Pac. Rep. 144. The rule has been tersely stated in the case of Widoe v. Webb, 20 Ohio St. 435: "Whenever the unlawful part of the contract can be separated from the rest, it will be rejected, and the remainder established. But this cannot be done when one of two or more considerations is unlawful, whether the promise be to do one lawful act, or two or more acts, part of which are unlawful; because the whole consideration is the basis of the whole promise, the parts are inseparable." Metc. Cont. 246; Add. Cont. 905; Chit. Cont. 730; 1 Pars. Cont. 456; 1 Pars. Notes & B. 217; Story, Prom. Notes, § 190; Byles, Bills, 111; Chit. Bills, 94. While a partial want or failure of consideratiou avoids a bill or pote only pro tanto, illegality in respect to a part of the consideration avoids it in toto. reason of this distinction is said to be founded, partly, at least, on grounds of public policy, and partly on the technical notion that the security is entire, and cannot be apportioned; and it has been said with much force that, where parties have woven a web of fraud or wrong, it is no part of the duty of courts of justice to unravel the threads, and separate the sound from the unsound; and, in general, it makes no difference, as to the effect, whether the illegality be at common law or by statute. This court has said upon the same subject, in the case of Gerlach v. Skinner, 34 Kan. 89, 8 Pac. Rep. 257: "Where a part of a consideration of an entire contract is illegal, the contract is tainted, and the courts will not compel its peformance." You shall not stipulate for iniquity; all writers upon our law agree in this. No polluted hand shall touch the pure fountains of justice. Collins v. Blantern, 2 Wils. 341. "The policy of the law is to leave the parties in all such cases without remedy against each other; the courts will not lend their aid to a party who founds his cause of action upon an immoral or illegal act. If from a plaintiff's own statement or otherwise the cause of action appears to arise ex turpi causa, or the transgression of a positive law of the state, there the court says he has no right to be assisted. Whart. Cont. §340; Korman v Henry, 32 Kan. 49, 343, 3 Pac. Rep. 764, and Pac. Rep. 262. "No agreement between parties to do a thing prohibited by law, or subversive of any public interest which the law cherishes, will be judicially enforced." Bish. Cont. § 471, and authorities there cited; 2