Volume 31 — Oregon Reports

From Tillamook: Henry H. Hewitt, Judge. Suit by the Little Nestucca Toll Road Company against Tillamook County and another to restrain a threatened trespass on plaintiff’s toll road. A demurrer to the complaint was sustained, and plaintiff appeals.

From Multnomah: Loyal B. Stearns, Judge. This is a suit by Mary Isabella Wason against Robert Pilz and Annie C. Schmeer, to quiet the title to a small tract of land twenty by two hundred feet, situate in Multnomah County, and now within the corporate limits of the City of Portland.

<p>1. Landlord and Tenant. — The relation of landlord and tenant arises where one, by consent of the landlord, goes into possession of leased land as the successor in interest of the tenant, and while thus occupying the land pays rent at the rate stipulated in the lease, and continues to so occupy the premises after the expiration of the term, all with the consent of the landlord.</p> <p>2. Acceptance op Deed. — A deed poll, when accepted by the grantee, becomes the mutual act of the parties, and its terms may be enforced.</p>

From Marion: George H. Burnett, Judge. Action by the 'firm of Flagg & Oronise against Marion County to recover the contract price of printing certain election ballots. A demurrer to the complaint was sustained, and plaintiffs appeal.

<p>Amending Pleadings on Appeal fbom Justice’s Court — Construction of Statute. — The amendment of 1893 (Laws 1893, p. 38), which repeals the provision of the Justice’s Code, c. 9, g 80, limiting amendments in the circuit court on appeal to such as did not substantially change the issues in the justice’s court, provides that no formal or written pleadings shall be required in justice’s courts; that the pleadings may be either oral or in writing; and that “the bill of items of the account sued on or filed as a counterclaim or set-off, or the statement of the plaintiff’s cause of action or of the defendant’s counterclaim or set-off or other ground of defense filed before the justice, may be amended upon appeal in the appellate court to supply any defect, deficiency, or omission therein by filing formal pleadings therein, when by such amendment substantial justice will be promoted,” — the only limitation in terms being that “no new item or cause of action not embraced or intended to be included in the original account or statement” shall be added by amendment. Held, that the right of amendment is not limited to cases in which the pleadings were oral, nor to such amendments as will not change the issues, but that a defendant may, by leave of court, on appeal, file an amended answer, raising a defense which he omitted to plead in the court below, when substantial justice will be thereby promoted: Waggy v. Scott, 29 Or. 386, distinguished.</p> <p>Mr. Chief Justice Moore, dissents.</p>

From Multnomah: E. D. Shattuck, Judge. Action by S. B. Riggen and another against the Investment Company. From a judgment dismissing the action on the pleadings, plaintiffs appeal.

From Multnomah: E. D. Shattuck, Judge. M. E. Baker sued the State Insurance Company, of Salem, Oregon, on a policy of fire insurance, and recovered a judgment for the full amount claimed, from which defendant appealed.

From Linn: George H. Burnett, Judge. Action by E. T. Wyatt against George Henderson and J. W. Stuchell to recover possession of certain oats'. There was a verdict and a judgment for what portion of the property remained on hand, and defendants appeal.

From Baker: Robert Eakin, Judge. Cross bill by C. E. Burrows and others against J. H. Parker. There was a decree striking out the cross bill, and plaintiffs appeal.

From Clatsop: Thomas A. McBride, Judge. Application by Morris & Whitehead, a corporation, for a writ of mandamus compelling Frank J. Taylor, mayor of the City of Astoria, and others, to execute and deliver to the applicant certain municipal bonds. From a judgment denying the application, said applicant appeals.

From Multnomah: Alfred F. Sears, Judge. Suit by Edith Fowler against her husband, Joseph Fowler, to compel him to contribute to her support. There was a decree for plaintiff.

From Umatilla: Stephen A. Lowell, Judge. Suit by R. S. Perkins against B. F. McCullough, W. H. Babb, and others for recision of a contract and for an accounting.

From Malheur: Morton D. Clifford, Judge. This is a special proceeding for the punishment of an alleged contempt, said to have been committed by-John Lavery and Daniel Lavery in violating the terms of a certain decree.

From Grant; Morton D. Clifford, Judge. This is a dispute over the final report of W. J. Galbraith as administrator in Oregon of the estate of his uncle, John McCullough.

<p>From Baker: Robert Eakin, Judge.</p> <p>Action by J. R. Burns against Charles H. Payne and David Eccles, garnishee. From a judgment for Eccles, plaintiff appeals.</p>

From Harney: Morton D. Clifford, Judge. Suit by Darius H. Smyth against John H. Neal to enjoin the diversion and use of certain waters. Defendant had a decree, whereupon plaintiff appealed.

From Baker: Robert Eakin, Judge. This is a suit by Edward E. Crossen against William Murphy, J. W. Stuchell, G. Henderson, and the Harrisburg Mercantile Company to rescind a contract for the sale and delivery of a quantity of merchandise.

From Union: Stephen A. Lowell, Judge. This is an action by A. E. Eaton against Edwin McNeill, as receiver of the Oregon Kailway and Navigation Company, to recover damages for the loss of certain stock claimed to have been killed and injured by moving trains of the defendant, and for other injuries to property. The complaint contains seven counts, but, as the assignments of error relate to the second cause of action alone, no further reference need be made to the others.

From Multnomah: Alfred F. Sears, Judge. On September 13, 1896, Wm. T. Eisen was tried for the crime of manslaughter and acquitted, in the Circuit Court of Multnomah County, and subsequently filed a statement of certain costs and disbursements which he claims to have incurred in the trial of such action, and moved the court for judgment against the county therefor.

From Multnomah: E. D. Shattuck, Judge. The purpose of this action is to establish ninety-eight different and distinct claims, ranging in amount from $1.25- to $100, preferred by certain laborers and employees against the estate of E. S. Larsen, an insolvent debtor, for labor and services rendered the said Larsen within ninety days prior to the date of his assignment for the benefit of his creditors, and is prosecuted under the provisions of an act entitled “An Act to Protect…

From Union: Stephen A. Lowell, Judge. Action by the Ogden City Street Railway Company of Ogden, Utah, against W. T. Wright and F. L. Richmond, as individuals, to recover on two promissory notes, one of which, is as follows: “ $757.42. Portland, Or., May 30th, 1894.

From Malheur: Robert Eakin, Judge. Suit by A. W. Turner and another against J. L. Cole and others to determine the rights of the respective parties to certain running waters. There was a decree for Turner, from which all parties appeal.

From Baker: Robert Eakin, Judge. Suit by Wm. H. Howard against Ferdinand Reckling and others to foreclose a mortgage. Defendants appeal from an order sustaining a demurrer to their answer.

From Umatilla: Stephen A. Lowell, Judge. This is an action by Mary K. Minard against A. D. Stillman to recover of the defendant a balance of certain collections made by him as attorney for plaintiff upon fire losses on insured property consisting of a dwelling covered by one company, and household goods by another. It is alleged that defendant wrongfully concealed the receipt of such balance from plaintiff, and converted the same to his own use.

<p>From Union: Robert Eakin, Judge.</p> <p>Suit by R. M. Steel against John Farrell to foreclose a mortgage, resulting in a decree for plaintiff, from which defendants appeal.</p>

From Grant: Morton D. Clifford, Judge. Final accounting of Kenneth F. MacRae, assignee of Murray Brothers, insolvent. Upon objections by A. L. Brown, creditor, the account was rejected, and assignee appeals.

<p>From Baker: Bobert Eakin, Judge.</p>

<p>Evidence of Fraud. — An allegation that defendants were guilty of fraud in an action to recover land in introducing in evidence a deed of plaintiff’s ancestor to defendants’ predecessors, when such deed had, in another action, been adjudged void, is not sustained where the only effect of the judgement in such other action was to determine that the land there in controversy was not in fact a part of that conveyed by such deed.</p>

<p>Partnership — Eights op Firm Creditors. * — Simple contract creditors of a partnership have not such a lien upon the assets of the firm as will enable them to follow and subject sueh assets, or the proceeds thereof, to the payment of the firm debts after all partners have parted with their interest therein.</p>

<p>Removal of Causes — Practice—Effect of Denying Motion. — Where a petition and bond for the removal of a cause are presented to a state court the only question to be there determined is whether the record shows a prima facie right to remove; all questions of fact must be determined by the federal courts. * If the application for removal is denied, the petitioner loses no rights by contesting the case on its merits, and the point is still good on appeal.</p> <p>Jurisdiction of United States Courts — Diverse Citizenship.— Under the provisions of section 1 of the Removal Act of March 3, 1887 (24 U. S. Stat. 552), as amended and corrected August 13, 1888 (25 U. S. Stat. 433), the circuit courts of the United States are given original jurisdiction of civil suits between citizens of different states when the amount in controversy exceeds a certain sum, regardless of whether either party resides in the district where the suit is commenced, but if this jurisdiction arises solely from diverse citizenship, the proceeding can be commenced only in the district where either the plaintiff or defendant resides — in other words, the jurisdiction does not depend on the place of trial, but on the residence of the parties.</p> <p>Idem. — The provision in the Removal Act of 1887, as amended in 1888, that where the jurisdiction of the federal courts is dependent entirely on the diverse citizenship of the parties, the cause can be brought only in the district where either plaintiff or defendant resides, confers a personal privilege on the defendant, which he may waive by submitting to the jurisdiction of a federal court of a district where neither party resides. Such a case is always removable to the United States courts at the option of the defendant. *</p> <p>Removal of Causes — Diverse Citizenship. — An action brought in a state court of Oregon by a resident of California, against a defendant residing in Connecticut, to recover a sum exceeding $2,000, may be removed by the defendant to the federal court for the District of Oregon, since such a suit is one of which the courts of the United States are given jurisdiction by the first section of the Removal Act of 1887, as amended in 1888.</p> <p>Sufficiency of Petition — Citizenship of Foreign Corporation. — A petition for the removal of a case from a state to a federal court is sufficient on the subject of citizenship when it shows that the petitioner is a corporation organized and existing under the laws of another state and having its principal office in such other state.</p> <p>Residence of Foreign Corporations. — A company incorporated in one state only, and doing business in another state in compliance with conditions imposed upon foreign corporations as prerequisites to their doing business therein, is neither a citizen nor a resident of the latter state, within the meaning of the Act of -March 3, 1887 (24 U. S. Stat. -552), g 2, as amended and corrected by Act of August 13, 1888 (25 U. S. Stat. 433), providing for the removal of causes on the ground of non- • residence.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Action by A. M. Alexander against Moy Ling to recover on a promissory note. From an order vacating a judgment in his favor, defendant appeals.</p>

From Grant: Morton D. Clifford, Judge. This is an action by Emmet Barr against George Rader to recover damages for the alleged wrongful seizure, detention, and sale of certain personal property.

From Multnomah: Loyal B. Stearns, Judge. Suit in equity by B. H. Thompson against Thomas Connell and the Sheriff of Multnomah County to restrain the enforcement'of a certain judgment because it was entered by fraud and deceit. Plaintiff also showed that he had a good defense to the original law action in which the objectionable judgment had been entered. A demurrer to the complaint was sustained.

From Benton: J. C. Fullerton, Judge. This is an appeal from an order of the Circuit Court of Benton County denying the petition of certain employees of the receivers of the Oregon Pacific Railroad Company for an order requiring the plaintiff in the foreclosure suit in which such receivers were appointed to pay the wages of the petitioners.

From Baker: Robert Eakin, Judge. This is an action by Barney Goldsmith against Baker City to recover the sum of $2,403.26 alleged to be due upon certain city warrants issued to various persons and assigned to plaintiff.

From Umatilla: Stephen A. Lowell, Judge. This case was commenced on August 27, 1896, by H. C. Talbot to enjoin the sale of certain land belonging to the plaintiff under an execution issued on a judgment against his grantor, J. L. Craft, and in favor of defendants Garretson, Woodruff, Pratt & Company, for the sum of $4,000, rendered on April 1, 1896, on the ground that the judgment was entered without jurisdiction, and is absolutely void.

From Douglas: J. C. Fullerton, Judge. The facts out of which this case arose are in effect as follows: On June 21,1892, the plaintiff and defendant became sureties upon the official bond of one V. L. Arrington who had theretofore been elected treasurer of Douglas County. Arrington defaulted, and on December 23, 1893, judgment was taken against him and his bondsmen, which was satisfied by plaintiff and defendant each paying one half or $11,828.65.

From Lake: W. C. Hale, Judge*, Mandamus by Adolpb Frankl against Harry Bailey, county treasurer, to compel tbe payment of warrants. From judgment for defendant, plaintiff appeals. For appellant there was a brief and an oral argument by Messrs. G. A. Coggswell, W. A. Wilshire, and E. D. Sperry. For respondent there was a brief and an oral argument by Messrs. L. F. Conn and Austin S. Hammond.

From Multnomah: E. D. Shattucic, Judge. Action at law by Columbia County against G. A. Massie and others to recover a certain sum collected by Massie as taxes, and taken with him when he fled from the country as a defaulter. There was a judgment on the pleadings in favor of defendants, hence this appeal.

From Multnomah: E. D. Shattuck, Judge. Judicial settlement of the accounts of G. M. Weister, administrator with the will annexed of the estate of E. J. Partridge, deceased, to which the M. A. Seed Dry-Plate Company filed objections. E. J. Partridge, who was a resident of Portland, and engaged in the wholesale photographic supply business, died testate, on the - day of June, 1891.

<p>Pleading — Amendment by Omitting a Pabty. — The rule in Oregon concerning amendments to complaints by omitting some parties originally sued is that when it appears, in an action upon a joint contract, that one or more of the defendants are not liable, they may be dropped and the cause continued as to the others, the test being whether there could have been a recovery against any of the defendants had they been sued alone. This rule is influenced by section 60, subdivision 3, Hill’s Ann. Laws, and sections 244 and 245 concerning separate judgments against different defendants: Sears v. McGrew, 10 Or. 48; Ah Lep v. Gong Choy, 13 Or. 205, and Hamm v. Basche, 22 Or. 513, approved and followed.</p> <p>Idem.— It is an appropriate exercise of discretion for a trial court to permit a complaint to be amended before trial by omitting the name of a defendant: Talbot v. Garretson, 31 Or. 256, applied.</p>

From Yamhill: George H. Burnett, Judge. This is an action by the firm of Stout & Martin to recover $1,010.80 for lumber alleged to have been sold and delivered by the plaintiffs to the defendant county.

From Umatilla: Robert Bakin, Judge. On the nights of the ninth and tenth of June, 1895, one Charles Cunningham lost by fire a large amount of property in Umatilla and Morrow counties, which was insured in several different companies, the defendant, the Home Mutual Insurance Company, being among the number. Its policy was for $11,825 on three frame buildings and a quantity of hay therein; also, $4,680 on sheep, while contained in a building described in the policy.

<p>From Multnomah: E. D. Shattuck, Judge.</p> <p>Replevin by A. Hamilton against A. N. Gambell, as auditor of the City of Portland, to recover the possession of certain warrants. A demurrer to the answer having been sustained, defendant appeals.</p>

From Multnomah: Loyal B. Stearns, Judge. Suit by the Continental Insurance Company of New York against S. B. Riggen and wife to foreclose a mortgage. A demurrer to a plea in abatement was sustained and a final decree entered as prayed for, from which defendants, appeal.

<p>From Union: Stephen A. Lowell, Judge.</p> <p>Action by F. L. Richmond and W. T. Wright against E. McNeill, receiver of the Oregon Railway and Navigation Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>1. Insurance — New Incumbrance. — An insurance policy the terms of which provide that it shall be void “ if the hazard be increased ” is not forfeited where a mortgage is given in lieu of and for the purpose of discharging incumbrances on the property which the insurance company was informed of at the time the insurance was effected: Koshland v. Home Insurance Company, 31 Or. 321, applied.</p> <p>2. Amendment After Motion fob'Nonsuit. — Permitting an amendment of a complaint by alleging an insurable interest in plaintiff’s assignor at the time of a loss is not affecting any substantial right of the plaintiff in an action on a fire insurance policy, but is clearly a wise exercise of judicial discretion in the matter of amendments. Under section 101, Hill’s Ann. Laws, such an amendment may properly be made after a motion for a nonsuit.</p>

From Baker: Robert Eakin, Judge. Suit by George M. Carnagie and others against Ambrose P. Diven and others to set aside a conveyance. Plaintiffs appeal from a decree against them.

<p>From Union: Robert Eakin, Judge.</p> <p>Application by J. W. Scriber for mandamus to William Grant treasurer of the City of LaGrande. Peremptory writ denied. Relator appeals.</p>

<p>From Gilliam: W. L. Bradshaw, Judge.</p> <p>This is an action by H. O. Strickland against B. Geide and A. Summerfield for damages. The defendants appeal from a judgment against them.</p>

<p>Appropriation Defined. — An “appropriation” is a setting aside or designation of particular funds for the discharge of certain definite and specified obligations, and may relate to a fixed amount of liability or to one that is continuing.</p> <p>Appropriation fob Payment of State Officers. — A statute fixing the amount of the salary of a public official and prescribing the time and manner of payment does not constitute a continuing appropriation for the discharge of such obligation, under a constitutional provision that “no money shall he drawn from the treasury hut in pursuance o* appropriations made by law,” in view of contemporaneous legislative construction of the statute to that effect.</p> <p>Legislative Construction. — Where a statute has for many years and from almost the date of its enactment, been construed by successive legislatures in a particular' manner not inconsistent with the language used, the courts will hesitate to adopt a different construction.</p> <p>Duty of Sf.cretary of State to Audit Claims. — When a claim against the state is presented to the secretary he must pass upon it by either rejection or approval without regard to whether the legislature has or has not appropriated money to meet it, and, if he allow the claim, he must indorse upon it the amount so allowed, and the name of the particular original fund from which it is to be paid, and draw his warrant on the state treasury therefor: Brown v. Fleischner, 4 Or. 132, overruled.</p> <p>Meaning of Word “Eund” in Section 2208, Hill’s Ann. Laws.— The word “fund” as used in section 2208 of Hill’s Ann. Laws means one of the original funds subsisting by law.</p> <p>Effect of Drawing Warrants — Auditing Claims. — The drawing of a warrant on the state treasury is, under the present statutes, a part of the act of auditing, and is not a drawing of money from such treasury.</p> <p>Warrant as Evidence of Claim. — A warrant is only prima faoie evidence of the validity of a claim against a municipality or common' wealth: Goldsmith v. Baker City, 31 Or. 249, and Frankl v. Bailey, 31 Or. 288, approved.</p> <p>Refusal of Treasurer to Pay Warrant.— Since a warrant is not conclusive evidence of an indebtedness it is the duty of the state treasurer to refuse payment unless it represents a claim authorized by law: School District v. Lambert, 28 Or. at page 224, and Goldsmith v. Baker City, 31 Or. at page 252, approved.</p> <p>Special Appeopeiation. — The expression “ where provisions for the payment thereof shall have been made by law,” used in section 2230, Hill’s Ann. Laws, refers to only those obligations incurred by the state under some previous authority, and does not include special appropriations made for particular purposes by acts which within themselves authorize the incurring of the expense.</p> <p>Mandamus. — Mandamus will lie to compel the performance of the duty of auditing a claim for services to the state, where, as in the case of salaries of public officers, the nature and amount of the services rendered are definitely fixed and ascertained, and the compensation therefor is regulated by law, since in such case the duty is merely ministerial.</p>

<p>From Umatilla: Robert Eakin, Judge.</p> <p>Action by Marcus S. Koshland against the Hartford Fire Insurance Company. From a judgment for plaintiff, defendant appeals.</p>

From Multnomah: Loyal B. Stearns, Judge. Suit by Henry W. Corbett and others to enjoin the City of Portland and its officers from collecting a certain tax. In the year 1895 the city levied a tax of 8 mills on the dollar on all its taxable property for general and fire and police expenses, and then levied an additional tax of 2 mills ostensibly to be used for paying interest charges.

From Benton: J. C. Fullerton, Judge. Suit by J. It. Smith & Co. against M. W. Wilkins and others, being a consolidation of several suits to foreclose mechanics’ liens against defendant Wilkins. From a decree dismissing his cross bill, defendant F. E. Beach appealed, and the decree was affirmed. * On motion of said defendant to remand the cause with permission to apply for leave to amend.

From Multnomah: Motion by plaintiff for leave to take out a mandate without paying the costs and disbursements taxed to defendant on the appeal.

From Lincoln: J. C. Fullerton, Judge. Application by George A. Landis for a mandamus on Lincoln County and its county court, which was refused; hence this appeal.

From Multnomah.: Loyal B. Stearns, Judge. Petition by Maurice Liebmann, administrator of the estate of Charles Gutman, deceased, against O. N. Denny, as receiver of the Portland Savings Bank of Portland, appointed in a suit against said bank by Cleveland Rockwell. Prom a decree for defendant, petitioner appeals.

From Tillamook: H. H. Hewitt, Judge. Suit by C. Thayer and E. Thayer against the Nehalem Mill Company and Frank Patton to foreclose a mortgage executed to plaintiffs as trustees. Decree for plaintiffs, and defendant Patton appeals.

From Marion: H. EL Hewitt, Judge. Mandamus by A. B. Croasman to compel Harrison R. Kincaid, secretary of state, to audit a claim. A demurrer to the writ was sustained, and plaintiff appeals.

From Benton: J. C. Fullerton, Judge. Suit by Robert L. Sabin against S. N. Wilkins, Mary A. Wilkins, his wife, F. M. Johnson, his general assignee for creditors, and D. A. Osburn, sheriff of Benton County, to set aside a chattel mortgage to Mrs. Wilkins and the general assignment to Johnson on the ground that they were parts of a preconceived plan to assign with a preference. The plaintiff also seeks to have his attachment declared a first lien on the property of Wilkins.

From Union: Robert Eakin, Judge. On July 22, 1895, J. R. Farrel commenced an action in the Circuit Court of Union County against the Oregon Gold-Mining Company, a Kentucky corporation, to recover the sum of $6,511.50.- In his complaint he alleges, among other things, that the “defendant is now, and has heretofore been, engaged in the business of owning, operating, and conducting mines, and a general quartz mining and milling business, in Union County, Oregon.” It appears…

From Marion: Henry H. Hewitt, Judge. Mandamus by the Irwin-Hodson Company to compel Harrison R. Kincaid, secretary of state, to audit a claim, and draw his warrant for it. From a judgment in favor of defendant, plaintiff appeals.

From Multnomah.: Loyal B. Stearns, Judge. Appeal by plaintiff from a decree of the Circuit Court of Multnomah County in favor of defendant in a suit brought to obtain a decree to declare void a marriage which had been contracted in alleged con-, travention to the provisions of the statute.

From Umatilla: Stephen A. Lowell, Judge. Suit by Robert L. Sabin against ¥m, Anderson and others to uncover assets alleged to have been fraudulently conveyed, and for an accounting. From a decree for the plaintiff, defendants appeal.

From Multnomah.: Henry E. McGinn, Judge. Petition by the Portland University to the County Court of Multnomah County for the exemption of certain lands from taxation after they had been assessed. From an order partially granting the relief asked •plaintiff appealed to the circuit court and again appeals here.

From Clackamas: Thomas A. McBride, Judge. Action by Elizabeth Hess against the Oregon Hermán Baking Company (a corporation), and Theodore H. Liebe to recover damages for malicious prosecution. The cause having been removed from Portland to Oregon City for trial, plaintiff recovered judgment for $9,250, from which this appeal was taken.

From Umatilla: Stephen A. Lowell, Judge. On or about the seventeenth day of April, 1896, the plaintiff W. F. Matlock recovered a judgment in the Circuit Court of the State of Oregon for Umatilla County against the defendant W. H. Babb upon an indebtedness that had accrued prior to January 1,1892, for the sum of $1,870.53 and $25 costs and disbursements, and on December 19, 1896, recovered a second judgment in the same court against him for the sum of $2,304 and $26.40 costs…

From Multnomah: E: D. Shattuck, Judge. Mandamus proceeding by H. H. Northup, a taxpayer of Multnomah County, to compel Ralph W. Hoyt, county treasurer, to publish a notice calling in certain warrants for redemption. The particulars of the dispute are stated in the opinion. Defendant appeals from a peremptory order requiring him to publish the notice demanded.

<p>1. Equity Appeal Without the Evidence. — The failure to bring up the evidence with the transcript on appeal renders it impossible to try the cause anew as provided by Hill’s (Ann. Laws, § 543, or to modify the findings of fact or correct the conclusions of law deducible therefrom, and leaves only for consideration the question whether the pleadings are sufficient: Howe v. Patterson, 5 Or. 353, followed.</p> <p>2. Construction op Pleading. — In view of section 84, Hill’s Ann. Laws, providing that the allegations of a pleading “shall be liberally construed, with a view of substantial justice between the parties,” the inadvertent omission of the word “not” in a complaint will be cured by a decree for plaintiff: Weiner v. Lee Shing, 12 Or. 276, applied.</p> <p>3. Creditor’s Bill — Sufficiency of Complaint.— A creditor’s bill that alleges the issuance of an execution and its return nulla bona is sufficient without an averment that the debtor has no property out of which the judgment can be satisfied: Page v. Grant, 9 Or. 116, followed.</p> <p>4. Married Women — Levy of Execution Against Husband.— In view of the liberal statutes in Oregon relating to married women, personal property transferred by a husband to his wife is not in his possession so that it can be seized under a writ against him.</p>

From Multnomah: Loyal B. Stearns, Judge. This is a suit by P. Goldsmith, S. Oppenheimer, and B. Goldsmith, as partners, under the firm name of Goldsmith & Loewenberg, against Mrs. J. B. Elwert and Charles P. Elwert, to foreclose a lien on certain real property in the City of Portland.

<p>Ratification — Agent.—Before a principal can be said to have ratified the unauthorized act of an agent, it must appear that the principal knew what the agent had done.</p>

From Yamhill: Henry H. Hewitt, Judge. Charles Handley seeks to restrain the sale of certain real property of his situate in Yamhill County, about to be sold under and by virtue of an execution issued out of the Circuit Court of the State of Oregon for Washington County upon a judgment therein given and rendered in an action at law in favor of the defendant Ellen L. Jackson and against plaintiff and one T. B. Handley.

From Douglas: J. C. Fullerton, Judge. Action by William R. Willis to recover from Sol. Abraham certain moneys alleged to be due under a contract. Judgment for defendant, and plaintiff appeals.

<p>I'raudui.ent Representation — Mistake—Rescission.—In order to constitute fraud such as will justify a rescission of a contract, the act or omission by which the alleged undue advantage is claimed to have been obtained must have been willful and intentional.</p>

From Linn: George H. Burnett, Judge. This is an action by Selig Wicktorwitz and Company against The Farmers’ and Merchants’ Insurance Company of Albany, Oregon, on an insurance policy covering loss or damage by fire to the amount of $1,000 on certain personal property belonging to the plaintiffs, while situated at No. 48 Blecker Street, New York.

<p>Suit by the Oregon Land Company against H. T. Coffee, W. H. Stubbings, and others, to foreclose a mortgage. Stubbings and Marion County appeal from a decree for plaintiff.</p>

<p>From Linn: George H. Burnett, Judge.</p>

<p>From Columbia: Thomas A.- McBride, Judge.</p>

<p>From Washington: Thomas A. McBride, Judge.</p> <p>This is a suit to foreclose a mechanic’s lien. The facts are that the Forest Grove Door and Lumbering Company, a corporation, having furnished to the defendant Donald McPherson lumber and building material to be used in the construction of certain buildings, situate upon a tract of land in Washington County, filed on November 24, 1893, a claim of lien thereon in the office of the county clerk of said county, containing a statement of its dfcmand, to secure the payment of $369.64, and on the next day commenced this suit to foreclose the same. Issue having been joined, a trial was had at which the court, having found that there was due the plaintiff $341.50, gave a decree foreclosing the lien for that amount, from which the defendants appeal.</p>

<p>Prom Josephine: Hiero K. Hanna, Judge.</p>

From Coos: J. C. Fullerton, Judge. This is a proceeding by writ of review brought by the Southern Oregon Company against Gage, sheriff of Coos County, and others.

From Coos: J. C. Fullerton, Judge. Petition by the Coos Bay, Roseburg and Eastern Railroad and Navigation Company against Coos County and its officers for a writ of review. From a judgment against it the petitioner appeals.

Suit by Connor Brothers against N. J. Lambert to enjoin the use of certain waters. There was a decree for plaintiffs, from which defendant appeals.

<p>From Umatilla: Robert Eakin, Judge.</p>

<p>From Umatilla: Robert Eakin, Judge.</p>

<p>From Multnomah: ILmitwell Hurley, Judge.</p>