positive. But Green's statements on the stand are conflicting and uncertain. It appears that he testified some months previous to the trial, at a preliminary hearing connected with the injunction, that he only gave Taney from two thousand eight hundred to three thousand one hundred dollars to deposit for him; on this trial he is certain the amount was five thousand five hundred dollars; he is sure of this, because he had it counted by another party, put into an envelope, and the envelope marked on the outside. Such a discrepancy as this was well calculated to prejudice his entire testimony with a candid jury. Had he taken the precautions now sworn to, it is incredible that he did not in January remember them, and also the exact sum of money handled. Such matters in connection with so large a sum are not often forgotten; and the party beneficially interested seldom fails to avail himself of them on the first and every succeeding opportunity. There could be no reconciling of the testimony of these two witnesses as to this transaction; if Green's statements were disbelieved, his whole case must fall. Second-Many of the matters sworn to by the nine witnesses who appeared for Green were highly improbable. If they were true, Taney acted and talked in a manner utterly unworthy of a sensible or careful business man. In the language of the district judge who tried the case: "In order not to give a verdict for Taney they (the jury) must not only be prepared to say that he committed willful and corrupt perjury, but that he acted in a most indiscreet and foolish manner, in talking about the money he had upon his person, at San Antonio and other remote points in the state, midst crowds of persons, who, he might well suppose, might not only not protect him in his possession of the money, but who might be easily tempted to rob him of it." Third-There were absurdities and inconsistencies in the testimony of these witnesses, which must have attracted the attention of the jury; and some of their statements were squarely contradicted by extrinsic evidence, which was doubtless accepted as true. Fourth-The jury saw these men, noted their language, appearance and demeanor, upon the witness stand; and perhaps also had a personal acquaintance with some of them. They knew their relations, present and past, with Green, and probable interest in aiding him, or inclination to do so. The weight of evidence does not wholly consist in its volume, nor in the number of individuals sworn. That is a most beneficent evidential rule which gives juries a large discretion in judging of the credibility of witnesses; which makes it peculiarly their province to discriminate between those who testify before them, and imposes upon them the duty of sifting the evidence, accepting the true and rejecting the false. And this court will only interfere where, upon the whole record, it appears that the jury acted so unreasonably in weighing testimony as to suggest a strong presumption that their minds were swayed by passion or prejudice, or that they were governed by some motive other than that of awarding impartial justice to the contending parties. We cannot say that this cases furnishes such a presumption; we think the jury were justified in the findings before us. The judgment will be affirmed. BASSETT v. INMAN. Filed March 14, 1884. ATTACHMENT-EXEMPTION, CLAIM OF HOW MADE.-No form is prescribed for making a claim of exemption by a defendant whose property has been attached in an action in the justice's court. He may make the same orally, and without notice to the plaintiff. The notice referred to in section 12 of the attachment act of 1879 applies to the cases of claimants to the property attached, other than the defendant. THE SAME WAIVER OF EXEMPTION.-A defendant does not waive the right of claiming property as exempt from attachment, by first traversing the attachment upon other grounds. THE SAME COUNTY COURT-JURISDICTION TO DISSOLVE AN ATTACHMENT.-Upon an appeal from the justice's court, the county court has jurisdiction to dissolve an attachment on the ground that the property attached is exempt. THE SAME-REVIEW OF ORDER DISSOLVING ATTACHMENT.-The appellate court will not review an order dissolving an attachment for a ground not raised in the court below. ASSIGNEE REAL PARTY IN INTEREST.-An assignee of a note and account sued on is the real party in interest, within the meaning of the code of civil procedure, although the consideration for the assignment is a payment to be made to the assignor after recovery in the suit. INCONSISTENT INSTRUCTIONS WILL NOT WARRANT A REVERSAL when it appears that the beaten party was not prejudiced thereby. ERROR to the county court of Saguache county. The opinion states the facts. E. F. Allen and George P. Uhl, for the plaintiff in error. STONE, J. The principal ground of reversal relied upon by the plaintiff in error is the dissolving of the attachment sued out by the plaintiff below, who is the plaintiff in error here. The objection to the action of the court in dissolving the attachment is based upon the following reasons, to wit: First, that the affidavit claiming exemption is insufficient; second, because there was no notice given to the plaintiff of the filing of the affidavit claiming exemption; third, because the claim of exemption, if any ever existed, was waived; fourth, because the court had no jurisdiction of this matter, the same not having come up on appeal, and that, therefore, the court erred in dissolving the attachment. These alleged reasons are insufficient to support the objection urged. There is no prescribed form for making such claim of exemption, and it might have been made orally in the justice's court. It was made in the form of an affidavit by the defendant in the attachment describing the property as the span of mules and harness taken under the attachment writ and claiming them as exempt under the statute. No notice of the filing of this affidavit was necessary, any more than in making any other defense which the defendant was entitled to make to the action. The notice referred to in section 12 of the attachment act of 1879 applies to cases of claimants of the property other than the defendant in the suit, usually called intervenors. The proceedings mentioned in section 13 of said act refer to the mode and manner of trying the question of the right of exemption claimed when an issue is made thereon. The ground of the alleged waiver of the exemption is that the defendant first traversed the attachment upon other grounds and afterward filed his affidavit claiming the exemption as a separate ground for dissolving the writ. This was no waiver of the right of defendant to claim the property as exempt under the statute. The jurisdictional objection is without force. Upon appeal in the county court the case stood just as it existed in the justice's court, and the trial in the county court was de novo, where the defendant's claim of exemption was to be passed on, the same as any other matter of defense made in the case. It is said by counsel for plaintiff in argument that the testimony in the record shows that one of the items sued for was a balance due for the purchase price of the mules attached in the suit, and hence that had the court allowed a proper issue to be made upon the claim of exemption, the plaintiff would have succeeded in resisting said claim. It is questionable if this point is properly raised under any of the assignments of error; but even if it is, we think it unavailing to plaintiff here, for the reason that he failed to make this point in the court below. The only ground upon which the plaintiff resisted the claim of exemption in the court below, when the motion to dissolve the attachment upon the ground of exemption was before the court, were the four specific grounds which we have heretofore set out and discussed, and the plaintiff having failed to present in the court below the fact that a part of the debt in the suit was the purchase price, or a portion thereof, for the property attached, as against the statutory exemption claimed, must be held to have waived this ground of objection to the motion, and cannot raise it for the first time in this court. The plaintiff, as assignee of the note and account sued upon, was the "real party in interest" within the meaning of the code of civil procedure, even though the consideration of the assignment may have been a payment to the assignor after recovery in the suit by the assignee: Cummins v. Morris, 25 N. Y. 625; Meeker v. Cleghorn, 44 Id. 349; Caulfield v. Sanders, 17 Cal. 569. The jury were properly instructed upon this point by the instructions given on behalf of the plaintiff. The third instruction given on behalf of defendant, the giving of which is made a ground of error in the assignments, was inconsistent with that given upon the same point on behalf of plaintiff, and was also inconsistent with the facts to which it was intended to apply, and, therefore, objectionable; but that the plaintiff was not prejudiced thereby is evident from the verdict rendered in his favor, in accordance with the instructions given in his behalf. This is none the less evident from the fact that the verdict was for a less amount than that sued for, since a large item in the account for the potatoes delivered to the defendant was in dispute and the testimony relating thereto directly contradictory, and as the jury were the judges of the credibility of the witnesses and the weight to be given to their testimony, we cannot say that the verdict was unwarranted, and the judgment of the court below will be affirmed. Judgment affirmed. SUPREME COURT OF OREGON. STEWART V. PHY. Filed February 13, 1884. PAYMENT FOR SPECIAL PURPOSE-ACTION FOR MONEY HAD AND RECEIVED.-An action for money had and received lies to recover back money paid by a debtor to his creditor to be applied in satisfaction of a particular obligation, when the same is not so applied, and the obligation is otherwise discharged. It is not necessary in such action to allege a promise to repay. APPEAL from a judgment of the circuit court, entered in favor of the defendant. The opinion states the facts. J. A. Stratton, for the appellant. WATSON, C. J. The judgment appealed from is, in effect, that the complaint states no cause of action. The action was brought in the justice's court, and taken from thence to the circuit court by appeal. From the judgment in the latter court the present appeal was taken. The complaint states in substance: That appellant, on September 21, 1881, gave respondent an order for six hundred dollars on Bamberger & Frank, of Baker City, as an advance, and to be applied and credited upon a contract then existing between them for the purchase of calves. That respondent obtained the money on said order, but failed, neglected and refused to credit the same, or any part thereof, except the sum of four hundred dollars. That said contract was therefore fully paid and satisfied by the appellant without any credit being given by the respondent for any portion of the six hundred dollars received from Bamberger & Frank on appellant's order, except the sum of four hundred dollars. The prayer is for judgment for two hundred dollars, with legal interest from September 21, 1882, and costs. It appears from the allegations that the respondent has money belonging to the appellant to the amount for which judgment is demanded, in his hands, which he clearly has no right to retain from the appellant, and we think the action lies. The respondent received the money for a particular purpose which was otherwise satisfied by the appellant, and it is his duty to repay it. It is no objection to a recovery in this action that appellant might have insisted on being credited with the whole amount received upon his order in the settlement of the amount due on the contract for the purchase of calves. The complaint shows it was not so credited, and it was as competent for the parties to waive the credit at the time of the settlement as it was for them to agree to the application of the amount received on the order in the first place. It was not necessary to allege a promise to repay. The respondent's legal obligation to do so arises from the facts alleged: Glenny v. Hitchens and Horton, 4 How. Pr. 98. Nor is there any ground for the objection that the sum for which judgment is asked appears upon the allegations in the complaint to have been a voluntary payment. It is shown by these allegations to have been no payment at all. It was intended to be, but was never applied; and by the subsequent arrangement between the parties the contract to which it was to be applied was satisfied without it. We think the facts alleged in the complaint fully warrant the action, which is in the nature of an action for money had and received to the appellant's use, and that the holding of the circuit court was error. The judgment is therefore reversed. WILLIAMS v. GALLICK. Filed February 13, 1884. PROCEEDINGS SUPPLEMENTAL TO EXECUTION AGAINST A GARNISHEE are proceedings at law, and on an appeal from a judgment therein only those errors are reviewable that are assigned in the notice of appeal. EXECUTION ON PLEDGOR'S INTEREST IN PROPERTY PLEDGED.-The interest of a pledgor in property pledged, with a limited power of sale for the protection of the pledgee, may be levied upon and sold under an execution against the pledgor. The pledgor holds the legal title to the property pledged, and not merely an equitable interest. FINDING OF A REFEREE WILL NOT BE REVIEWED on appeal when there is evidence to sustain it. SECONDARY EVIDENCE OF THE CONTENTS OF A CERTIFIED COPY OF AN ANSWER is admissible upon proof of the loss of the original and of such copy. FAILURE OF A REFEREE TO FIND UPON AN IMMATERIAL ISSUE as to fraud is not error. APPEAL from a judgment of the circuit court for Multnomah county, entered in favor of the plaintiff. The opinion states the facts. Dolph & Simon, for the appellant. William Strong & Sons, for the respondent. WATSON, C. J. This is an appeal from a judgment against a garnishee in proceedings supplemental to execution, in an action at law. The facts essential to a proper understanding of the case are these: In the month of July, 1879, Comstock and Pfluger, the principal debtors, transferred a large amount of personal property to William Gallick, the appellant, to secure him as accommodation indorser of their notes, to the amount of about twenty-six thousand nine hundred dollars, with power to sell so much of the property as might be necessary to discharge said notes at maturity and pay all expenses of keeping and disposing thereof, and the surplus of the property |