made on the same day. The referee found that the claim was without consideration and was fraudulent, and disallowed it both as a general and preferred or secured claim. It appears that the property embraced in the mortgage was sold by the trustee, leaving the controversy as to the lien upon the proceeds of sale. The finding of the referee is only general, and it does not specify the particular facts which induced the conclusion, either that there was no consideration for the note and mortgage, or that the mortgage was fraudulent. The only testimony introduced at the hearing was that of the claimant himself.

Upon the issue as to the consideration for the note and mortgage, the direct testimony of the claimant is that he loaned the principal sum to the bankrupt at the time these instruments were taken. Circumstances were brought out on the examination which tend to support finding, but they are not deemed sufficient to overcome the direct testimony. Reliance was placed at the argument on the fact that the instruments were dated on a Sunday. The witness, however, denies that they were made on that day. A mistake in inserting dates may occur in transactions of this character, and cannot be considered as affecting their validity. The suggestion that the date shows the instruments were executed on the eve of bankruptcy, and were dated back, is not without force in determining whether the loan transaction really took place at all. But it loses importance when it is considered that the dates which appear were within the period when preferential transfers were not permissible, and that a mortgage given shortly before the petition was filed to secure a concurrent loan would have been valid. It is more reasonable to say that antedating the instruments would be intended to show them to have been of the same date as the loan itself, and thus to prevent them from being held preferential in securing an antecedent obligation. If this were the case, the security, and not the obligation itself, would be affected. The circumstance as to the date of the note and mortgage

does not justify a finding that the loan was not made by the claimant to the bankrupt.

The testimony discloses also, that the note stipulates for interest at ten per cent., whereas, the agreed rate was eight per cent, and the payment of two months interest was made at the latter rate. The explanation of this matter is not satisfactory, and its tendency is to put the whole transaction in doubt. It may be observed, however, that if the inquiry had been more fully made into the reason for the insertion of one rate, and the aggreement upon another, there would have been less difficulty in determining what weight this feature of the testimony should receive. The fact as to the interest was shown entirely by the concessions of the claimant, and no wrongful purpose have been intended. But if it was not originally due to a mistake, the proper inference would seem to be that the object was to hinder other creditors by making the obligation appear to be greater than it was in fact. If this inference be indulged, its tendency would be to invalidate the mortgage, and not to refute the fact of indebtedness considered apart from the security. In the absence of more definite circumstances, the admission made with reference to the interest is hardly sufficient to justify the conclusion that the claimant did not make the loan to the bankrupt.

The law requires that fraud should be clearly established, and upon examination of the foregoing and other circumstances disclosed by the testimony, the conclusion seems necessary that the claimant loaned the bankrupt the sum evidenced by the note and mortgage, and that the claimant held an unpaid demand against the bankrupt therefor. The interest, however, appears to have been paid for a period of two months, and under the Bankruptcy Act, is not allowable after the date of the petition. (Sec. 63.)

A different question is presented as to the validity of the mortgage. The laws of Oklahoma provide that the

Continued on page 257 in this Number.)

CURRENT DECISIONS OF

THE SUPREME COURT OF THE STATE OF
OKLAHOMA.

GEORGE COGGESHALL, Plaintiff in Error

vs.

THOMAS W. CONNER, Defendent in Error. (Rendered January 9, 1912.)

Error from Count Court of Kiowa County. J. W. Mansell, trial Judge.

Reversed and Remanded.

No. 1251

A public officer cannot recover compensation from third persons for the performance of acts within the scope of his official duty, even though the acts were performed at their request, or though they may have expressly promised to pay him.

(a) This rule applies to an attorney acting as special prosecutor for the State, the regular county attorney being disqualified, by appointment by order of the dis

trict court.

(Syllabus by the Court.)

E. W. McIntosh, for plaintiff in error
W. A. Phelps, for defendant in error.

OPINION OF THE COURT BY WILLIAMS, J.:

This proceeding in error is to review the judgment rendered in favor of the defendant, in the county court of Kiowa County, in an action for the recovery of a fee in the sum of $125 for the prosecution of John CStanfill, charged with arson. Plaintiff's claim was resisted on the grounds (1) that the defendant had neither expressly nor impliedly employed plaintiff, and (2) such services in such prosecution were performed by said

plaintiff whilst he was the duly elected and qualified county attorney of Kiowa County, Territory of Oklahoma, and (3) after he went out of office as such officer, the services were performed by him under special appointment by the district court of the State for said county. The defendant requested the following instruction:

"You are instructed that if you find that the plaintiff did the services claimed while he was acting in the capacity of county attorney either by election or by appointment by the district court, then you should find for the defendant.”

This instruction was refused and exceptions saved. We think that in this the court erred. A person who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously, (Wortham vs. Grayson County Court, 13 Bush (Ky) 53) and cannot recover anything from the State or county upon the ground of an implied contract to pay what the service was reasonably worth. White v. Levant, 78 Me. 568, 7 Atl. 539; Talbot v. Machias, 76 Me. 415; Sikes v. Hatfield, 13 Gray (Mass.) 347; Walker v. Cook, 129 578; Board Co. Com'rs Greer County v. Watson, 7 Okla 174, 54 P. 441. This presumption is in favor of the state or county. Board of Co. Com. vs. Watson, supra; Throop on Public Officers, sec. 449; Cole v. White County, 32 Ark. 45; Wortham v. Grayson County Court, 13 Bush (Ky.) 53.

Where services are to be performed by officers for private parties, as, for instance, where a clerk files papers at the instance of private litigants, this presumption does not obtain. Bohart et al. v. Anderson, 24 Okla. 82, 103 P. 742, 20 Amer. & Eng. Ann. Cases, 142; Throop on Pub. Officers, (1892) sec. 449.

A public officer whose salary or compensation is fixed by law and is payable by or made a charge against the public, cannot recover compensation from third persons for the performance of acts within the scope of his official duty, even though the acts were perform at their request, or they may have expressly promised to pay

him. Hatch v. Mann, 15 Wend. (N. Y.) 44; Brophy v. Marble, 118 Mass. 548; Evans v. Trenton, 24 N. J. L. (4 Zab.) 764; Pool v. Boston, 5 Cush. a19; New Haven etc. Co. v. Hayden, 117 Mass. 433; Andrews v. U. S., 2 Story C. C. 202; Convers v. U. S., 21 How. (U. S.) 463.

It was an offense at common law for a member of a municipality to refuse to take upon himself an office in such corporation to which he had been appointed. Rex v. Bower, 2 D. & R. 842; 1 B. & C. 585; Rex v. Lone, 2 Str. 920; Rex v. Jones, 2 Str. 1146; Throop on Public Officers, sec. 164.

If the defendant in error rendered any services in this prosecution between the 16th day of November, 1907, the date on which his term of office as county attorney of Kiowa County, Oklahoma Territory, terminated, and the 8th day of January, 1908, the date on which he was appointed by order of the district court to prosecute said case, he would be entitled to recover a reasonable value therefor, provided the plaintiff in error requested him to continue such prosecution; for, if he made such request and the services were rendered, the law would imply a contract to pay a reasonable compensation therefor.

It is against public policy for a public officer to be allowed private compensation for the performance of any duty as a public officer. The very moment that the plaintiff was appointed by the district court as a special prosecuting officer to prosecute this case, for the purposes of that case he then and there became a public officer and for any service rendered in that appointment he would not be entitled to recover against a private individual. As to whether there is a provision of law for him to be compensated out of the public treasury, that is not essential here to be determined. It may be that there is no provision of law for such compensation out of the public treasury, but it is certainly against sound public policy to permit an attorney to be appointed as a special prosecutor when the regular county attorney is disqualified, and to receive private compensation for such services.