Volume 34 — Oregon Reports

From Linn : Henry H. Hewitt, Judge. Suit by Elizabeth M. Nickerson against Hugh Nickerson for a divorce on the ground of cruelty, in which she had a decree. Defendant appealed and died, whereupon there was a motion to dismiss the appeal, which was denied and the cause finally reversed.

From Union : Robert Eakin, Judge. Suit to enjoin the diversion of the waters of a natural stream. Plaintiff had a decree and defendants appeal.

From Multnomah: E. D. Shattuck, Judge. This is an action maintained in the name of the State, upon the relation of Albert I. Wagner, to oust H. B. Compson from a public office.

From Tillamook : Heney H. Hewitt, Judge. Bill for a foreclosure by M. B. Petteys against J. C. Comer and wife, the Bay City Co-operative Co. and others. There was a decree for plaintiff, and the company appeals.

From Multnomah : Loyal B. Stearns, Judge. Suit by Bobina Shepard against Peter Saltzman, Jr., as executor, to foreclose a mortgage made by the father of defendant in his lifetime. There was a decree for plaintiff.

<p>1. Order Operating as an Equitable Assignment. — To give an unaccepted draft or order the effect of an equitable assignment of a fund, it must, by its terms, be drawn upon that fund: McDaniel v. Maxwell, 21 Or. 202, approved.</p> <p>2. Birds and Notes — Acceptance.—Under Section 3194, Hill’s Ann Laws, no liability is incurred by the verbal acceptance of a bill of exchange, and either drawer or drawee may urge the obj ection that the acceptance was not written.</p>

<p>1. Deeiettioh oe the Wokd “ Void.” — Tbe word “void,” iu Hill’s Ann. Laws, g 2736, providing that all obligations whereby land situated in more than one county in the State is made security for the payment of a debt shall be void, — must be given its ordinary meaning of null and incapable of confirmation, since it is apparent that the purpose of the section is to secure to the state the revenues to be obtained from the assessment and taxation of mortgages of real property.</p> <p>2. Cueing Void Contract by Subsequent Legislation. — No statutory ratification or subsequent legislation can make valid a contract that was null and void at its inception; thus, where a mortgage is absolutely void, because it covers land in more than one county, its validity cannot be cured by subsequent legislation repealing the provision, or consolidating counties in such a way as to bring the lands mortgaged within one county.</p> <p>3. Remedy at Law — Jurisdiction oe Equity. — The rule that when equity has obtained jurisdiction for one purpose it will proceed to administer complete justice cannot be invoked to procure a money j udgment in aforeclosure suit where the mortgage was adjudged void, for the equitable jurisdiction depended on the validity of the mortgage, and as to the money claim there is an adequate law remedy: Ming Yue v. Coos Bay JR. JR. Co., 24 Or. 392, and Slemmer v. Scottish Ins. Co., 33 Or. 66, followed.</p>

<p>From Washington : Thos. A. McBride, Judge.</p> <p>Suit by William Vaughn against James M. Smith and another. From a decree dismissing the complaint, plaintiff appeals.</p>

From Marion : Henry H. Hewitt, Judge. Proceedings to set aside the probate of the will of Catharine E. Darst, deceased. An order of the county-court probating the will o was affirmed in the circuit court on petition of the proponents Joanna O’Conner O’Brien and others, and contestants James J. Hurley, administrator, and others, appeal.

<p>From Washington : Thos. A. McBride, Judge.</p> <p>Action by L. Toedtemeier and another against Clackamas County. From a judgment for defendant, plaintiffs appeal.</p>

<p>From Marion : Henry H. Hewitt, Judge.</p> <p>Bill by the Capital Lumbering Co. against B. B. Byan, H. E. Noble, and others, to foreclose a lien. Plaintiff appeals.</p>

From Coos : J. C. Fullerton, Judge. Replevin — or, as the Oregon Statutes term it — claim and delivery, by the Coos Bay, Roseburg & Eastern Railroad and Navigation Company against Z. T. Siglin, in which defendant had judgment, and plaintiff appealed.

<p>1. Chattel Mortgage as Evidence oe Ownership. — A chattel mortgage after default is admissible in evidence to support an averment of ownership and right of possession in the mortgagee in a complaint in replevin by the latter, since a chattel mortgagee then has a qualified ownership, and may prove it under an allegation of absolute ownership: Moorhouse v. Donaea, 14 Or. 480; Case Machine Co. v. Campbell, 14 Or. 460, and Marguam v. Sengfelder, 24 Or. 2, approved.</p> <p>2. Description in Chattel Mortgage — Parol Evidence. — A chattel mortgage on a crop of hops described as growing upon three parcels of land situated upon a part of a donation land claim which is referred to by the name of the claimant, the number of the notification and claim, and its township and range, is sufficiently definite in description, as between the parties thereto, to let in parol testimony to identify the property and prove the ownership, in view of the fact that under the Oregon donation laws a person can obtain but one gift of land from the government, and a partial description by metes and bounds may be regarded as surplusage.</p> <p>3. Parol Evidence — Chattel Mortgage. — As between the mortgagor and mortgagee of personal property, and also as between the mortgagee and a third person who has succeeded to the mortgagor’s interest with actual notice of the mortgage, parol evidence is admissible to identify the property intended to be covered thereby: Sommer v. Island Mercantile Co., 24 Or. 214, applied.</p>

<p>Municipal Corporations — Construction op Statute. — The power conferred by the legislature upon the Bridge Committee of the City of Portland to enter into such contracts as it might deem just with any line of street railway operating across the bridges contemplated by the act if it should find it necessary to do so in order to effect the agreement of purchase or lease, Laws, 1895, p. 421, g 15, authorized the committee to enter into an original contract with a street railway company for the use of the bridge. The statute was not intended to restrict the committee to negotiations for the cancellation of existing rights.</p>

<p>Collateral Attack ok Organization oe School District. — The legal existence of a public or governmental corporation, organized under color of law, and in the exercise of its legitimate powers, cannot be attacked except in a direct proceeding by the state for that purpose: ¡Slate ex ret v. Sulin, 2 Or. 306, followed.</p>

<p>1. Judgment Liens — After Acquired Property.* — Lands purchased through an agent who took the title in his own name, without the principal’s knowledge or consent, and then conveyed to her, are not thereafter subject to execution on a prior judgment against the agent, since he had only the bare legal title without any interest in the property itself.</p> <p>2. Execution — Rights oe Creditors. — Sections 150 and 283 of Hill’s Ann. Laws place attaching or execution creditors on the same footing as a purchaser from the j udgment debtor, but do not confer on them any superior advantages: Rhodes v. McGarry, 19 Or. 222, and Meier v. Hess, 23 Or. 599, cited.</p> <p>3. Costs — Appeal.— Costs and disbursements, as a general rule, should be allowed the prevailing party in a suit in equity as well as in an action at law, but the trial courts are given a discretion in the matter by section 554 of our statutes, which will not be interferred with on appeal except for an abuse.</p>

<p>Agreement to Pay Mortgage — Deeds.—A grantee of mortgaged property who accepts a deed therefor reciting that he assumes and agrees to pay the mortgage debt Is not personally liable therefor unless his immediate grantor was so bound*.</p>

<p>Authority of Attorney After Death of Client.* — Jurisdiction of an appeal cannot be acquired by the admission of service of notice of appeal by the attorney of a party who died prior to such admission, where the attorney had not been retained by the personal representatives of the deceased, who had been substituted, for the reason that the death of a client pending an action or proceeding terminates the authority of the attorney, and the subsequent continuance of the suit by the attorney, in the name of the representatives, without their consent, is unwarranted.</p>

<p>1. Mechanic’s Lien a Privilege. — The right to assert and perfect a mechanic’s lien is a statutory privilege (Brown v. Harper, 4 Or. 89), and may be exercised or waived as the lienor may prefer.</p> <p>2. Waiver of Lien. — The right to a mechanic’s lien under the Oregon statutes may be waived by express agreement, as well as by neglecting to perfect the lien within the statutory time.</p> <p>3. Release of Lien — Consideration—Unilateral Contract. — A payment by the owner of a building to his contractor in reliance upon a waiver by a materialman of his right to a mechanic’s lien, and a like payment by the contractor to the materialman, pursuant to an understanding to that effect when the waiver was signed, is a sufficient consideration to support the waiver, although it did not by its terms require any payment by the contractor.</p> <p>4. Effect of a Waiver. — A waiver of all claims for materials furnished to the contractor, and used in certain buildings, is equivalent to a waiver of the right or privilege of claiming a lien therefor against the property.</p> <p>5. Agent — Statute of Frauds — Character of Lien. — The right of preserving and enforcing a mechanic’s lien is not an interest in land, and an agent’s authority to act with reference to it need not be in writing.</p> <p>6. Authority of Agent. — Where an agent has authority to represent the principal in carrying on the business of manufacturing and selling lumber and in filing mechanics’ liens, the agent’s waiver of a mechanic’s lien for lumber sold by him for the principal is binding on the principal.</p> <p>7. Mechanic’s Lien — Confused Claim. — A claim of mechanic’s lien is unavailing for any purpose where it is impossible to segregate the lienable items from the nonlienable ones in the account set forth in the claim of lien: Williams v. Toledo Coal Co., 24 Or. 426, cited.</p> <p>8. Pleading Waiver. — It is proper to plead a waiver of a mechanic’s lien as such rather than to set up the matters and things which gave rise to it by way of estoppel.</p>

From Multnomah : Henry E. McGinn, Judge. Action by H. D. Foste against the Standard Life & Accident Insurance Company, of Detroit, Michigan, to recover certain money. Defendant appeals from a judgment for the amount demanded.

From Lake: W. C. Hale, Judge. In April, 1895, George H. Small commenced an action in the Circuit Court for Lake County against Elmer D. Lutz to recover possession of certain real property.

From Multnomah: E. D. Shat tuck, Judge. Actions of ejectment by Isaac L. White, Ella W. Tichner and Gertrude White against Zipporah White. This cause, and three others between the same parties, and involving the same state of facts, except that they were concerning separate parcels of real property, were, by stipulation of the parties, consolidated and tried together.

From Lane : J. C. Fullerton, Judge. Action by the First National Bank of Eugene against A. G-. Hovey and others. From a judgment for defendant, sustaining a demurrer to the complaint, plaintiff appeals.

<p>Liability of Gbantee of Moetoaged Pbopebty. — The grantee of mortgaged premises under a deed reciting that he assumes and agrees to pay the mortgage debt is not personally liable to the mortgagee, if his immediate grantor was not personally bound: Young Men’s Association v. Groft, 34 Or. 106, followed.</p>

From Clatsop: Thos. A. McBride, Judge. Suit by P. C. Warren and another against J. H. De Force and others to have defendant, Sarah De Force, decreed to hold the legal title to certain land in trust for plaintiffs. Decree for defendants, and plaintiffs appeal.

From Clatsop : Trios. A. McBride, Judge. Joseph Turner appeals from a judgment fining him $25 for acting as a pilot for a sailing vessel on the Columbia River without a pilot’s license.

From Multnomah : E. D. Shattuck, Judge. Action by James D. Bailey against Arthur Wilson and others, which finally resulted in a voluntary nonsuit for plaintiff, from which defendants appeal.

From Washington : Taos. A. McBride, Judge. Writ of review brought by Mary Malone against B. P. Cornelius, county judge, and others, to review the action of the county court in refusing to proceed with the probate of a will. From the judgment rendered, B. P. Cornelius and others appeal.

From Clatsop : Thos. A. McBride, Judge. This is a proceeding commenced in the name of the state on the relation of O. H. Beckman and three other private citizens before the Board of Medical Examiners of the State of Oregon to obtain a revocation of the license of Dr. O. B. Estes under the provisions of the act of 1895 relating to physicians and surgeons.

<p>1. Accident at Crossing — Negligence a Complete Defense. — There can be no recovery for the death of one who was struck by a railway train at a grade crossing, where the evidence showed that, though such train was moving at a rate of speed prohibited bylaw, the proximate cause of the accident was the negligence of the deceased in approaching such crossing without exercising due caution.</p> <p>2. Duty to Stop and Listen for Train. — The failure of a person about to cross a railway track, on a highway at grade, to look and listen for an approaching train, or to stop for such purpose, where the view of the track is obstructed, or where there is noise which he may control, and which may prevent his hearing such train, is negligence per se, which will bar a recovery for an injury resulting from a collision with a train at such crossing: Durbin v. Oregon My. & Wav. Co., 17 Or. 5, and McBride v. Northern Mac. M. M. Co., 19 Or. 64, approved and followed.</p> <p>3. Duty of Court to Direct a 'Verdict. — In an action for injuries received by a traveler on the highway, at a railway crossing, it is the duty of the court to direct a verdict for defendant, where the uncontradicted evidence shows the omission of a duty which the law requires of such traveler: Durbin v. Oregon My. & Wav. Co., 17 Or. 5, approved and followed.</p>

From Multnomah : Henry E. McGinn, Judge. Action by the Cleveland Oil & Paint Manufacturing Company against the Norwich Union Fire Insurance Society to recover on an oral contract of insurance, and defendant appeals from a judgment against it.

From Multnomah : John B. Cleland, Judge. This suit was brought by Frank Dayton against Multnomah County to restrain the collection of certain taxes. The State Board of Equalization, at its meeting in 1896, equalized the values as assessed by raising the assessment on certain classes of property in Multnomah County nearly $6,000,000, and raising the same classes of property in all the rest of the state about $3,500,000.

From Coos : J. C. Fullerton, Judge. Action by W. L. Mast against Daniel Kern. This action is brought to recover damages for an injury alleged to have been sustained through defendant’s negligence.

From Marion : Henry H. Hewitt, Judge. Suit by Anna M. Boyes to compel W. T. Ramsden to deliver a deed of certain real property to plaintiff, or, if delivery thereof cannot be had, then for a decree that she is the owner of the premises described therein, and that defendant be required to execute another deed thereto, and deliver the same to her.

<p>Injuby to Employee — Negligence 01? Fellow Sebyant. — Plaintiff was an experienced section hand, surfacing defendant’s track about three-fourths of a mile from a station. He knew that bridge carpenters would run a hand ear toward him from the station while he was at work. It was possible to see their approach the whole distance. No signal warned the men on the car of the men at work on the track, and while plaintiff’s back was turned the car approached at the expected time; but he did not hear it, on account of the noise from their work. He and his fellow workmen sprang aside, and one carelessly dropped his tamping bar. The car struck it and threw it against plaintiff, breaking his leg. Held, that his inj ury was due to the negligence of his fellow servants, and to his own carelessness.</p> <p>When Employees are Fellow Servants — The rule is now established in Oregon that in determining whether two persons were or were not fellow servants the character of the act causing the injury, and not the grade of the offending employee, is the test: Mast v. JCern, 34 Or. 247, cited.</p> <p>Duty of Railroad to Employee. — A railroad company is not bound to keep a signal to warn workmen on a hand car of the situation of section men at work on the track.</p>

From Multnomah: Alfred F. Sears Jr., Judge. Mandamus by Waldemar Seton against Ralph W. Hoyt, county treasurer, to compel payment of interest on a county warrant at the rate fixed by statute when the claim accrued, the treasurer having reduced the rate when a new statute went into force, whereby the legal interest was changed from eight to six per cent. The writ was made peremptory, and defendant appealed.

Prom Multnomah : Alfred Sears Jr., Judge. This is an action by the Esberg-Gunst Cigar Company against the City of Portland, to recover damages for an injury to plaintiff’s goods, caused by the bursting of an alleged negligently defective water main belonging to the defendant city, and the consequent flooding of the cellar in which such goods were stored.

From Multnomah: Alered F. Sears Jr., Judge. This is a mandamus proceeding brought by W. J. Shipley against Frank Hacheney, as Treasurer of the City of Portland, to coerce the payment of eight per cent, per annum upon an interest-bearing warrant of said city, issued January 20, 1898, notwithstanding the reduction of the legal rate of interest to six per cent, by the act of October 14, 1898 (Laws, 1898, Sp. Sess. p. 15).

From Multnomah : E. D. Shattuck, Judge. Action by Maria Feldman against W. W. McGuire. In March, 1890, one Adolph Nipolai was indebted to many persons, including the plaintiff, and transferred much of his property to the defendant and his wife. These deeds were attacked by Mrs. Feldman as fraudulent, but were sustained as having been made for a valuable consideration : Feldman v. Nicolai, 28 Or. 34. Thereupon the same plaintiff commenced this action, and recovered a judgment.

From Douglas : J. O. Fullerton, Judge. This is an action by L. T. Robinson for tbe possession of a horse, commenced in a justice’s court, the complaint containing the allegations usual and essential in such a case. The defendants answered separately by specific denials.

From Multnomah : Thos. A. Stephens, Judge. This action was commenced on the thirty-first of January, 1895, by J. Frank Watson to recover from Julius Loewenberg upon four separate promissory notes, aggregating in amount about $16^000, made by defendant to the Merchants’ National Bank, and by it assigned and transferred to the plaintiff for collection, who, at the time the action was commenced, caused a writ of attachment to be, issued and certain personal property and various…

From Multnomah.: Henry E. McGinn, Judge. Suit by Peter Conrad and others against the Pacific Packing Co., a corporation, and others, for the appointment of a receiver, and to wind up the affairs of defendant corporation. From the decree said corporation and other defendants appealed.

From Lane : J. O. Fullerton, Judge. This is a suit by S. A., Huddleston, to enjoin the Marshal of the City of Eugene from selling certain real property to satisfy an assessment for an alleged street improvement.

From Douglas : J. C. Fullerton, Judge. Writ to review a judgment of a justice of the peace. The circuit court quashed the judgment, and the defendant appealed.

From Clatsop : Thos. A. McBride, Judge. Suit by O. N. Denny, as receiver of the Portland Savings Bank, against E. A. Seeley and others to foreclose a mortgage. From a decree for plaintiff, part of the defendants appeal.

From Douglas: J. C. Fullerton, Judge. This action was commenced by William Whipple against the Southern Pacific Company in the Justice’s Court of Pass Creek Precinct, Douglas County, to recover the sum of $50, the alleged value of a cow, which was killed by being struck with a locomotive operated by defendant’s servants.

From Multnomah : E. D. Shattuck, Judge. This is an action by Andrew Kershaw to recover damages for alleged negligence on the part of Ladd & Tilton in the attempted collection of a check drawn by plaintiff in their favor upon the United States Banking Oo. The defendants are bankers, located at Portland, and the United States Banking Co. at Sheridan, fifty miles distant.

From Klamath : W. C. Hale, Judge. This is an action brought by W. Albert Walker against Henry Bloomingcamp and others to recover for the alleged trespass of defendants’ sheep upon the uninclosed lands of the plaintiff.

From Multnomah: Loyal B. Stearns, Judge. This is a suit by private parties to enjoin the continuance of a public nuisance.

From Multnomah : Loyal B. Stearns, Judge. Bill by James S. Ramsey and others against Effie I. Stephenson and others to have set apart to them, as devisees, their distributive share in the estate of Frederick H. Ramsey, deceased. From a decree dismissing their bill, complainants appeal.

<p>1. Joint and Sevebad Judgment — Joint Bond. — In an action on a bond of indemnity given by several parties, a recovery must be had against all or none, unless one or more has set up and maintained a defense personal to himself.</p> <p>2. Indemnity to Officee — Defense.—Where several attaching creditors give a bond to the sheriff conditioned that, if he will hold certain attached property against all claimants, defendants will indemnify him against an-y loss or damages by reason thereof, a direction to release one or more attachments would constitute no defense, the liability not being severable.</p>

From Multnomah.: E. D. Si-iattuck, Judge. The following is a brief narrative of the facts leading to the commencement of this action, and the steps subsequently taken material to an understanding of the controversy. On April 16, 1894, Isam White filed his complaint against A. H. Johnson, to recover upon certain promissory notes. At tlie same time an affidavit and undertaking were filed, and a writ of attachment issued.

From Douglas: “J. C. Fullerton, Judge. This is a proceeding by writ of review, instituted by School District No. 116 for the purpose of having reviewed the action of the Hon. G. M. Irwin, Superintendent of Public Instruction, in reversing and setting aside the order of Douglas Waite, County School Superintendent of Douglas County, Oregon, made and entered November 20, 1896, relating to a change in the boundary of district No. 16, which eliminated a portion of said district.

<p>Specific Performance — Indefinite Contract. — The consideration for an agreement to convey lands was the payment of a sum of money, and the delivery on demand, “at the mill,” of lumber which the vendor intended to use in a house situated not far from the premises in question. The lumber had not yet been manufactured, and the vendee owned a sawmill at a distance, from which it could be transported only at considerable expense to the place where the vendor intended to use it. It was the intention of the parties that the vendee should erect a sawmill on the lands purchased. The testimony as to the mill at which the parties intended the delivery to be made was conflicting. Held, that the new sawmill was the one at which the tender of the lumber should have been made.</p>

<p>From Douglas : H. K. Hanna, Judge.</p> <p>Action by W. P. Lord and others, State Board of School Land Commissioners, against J. W. Hamilton. There was a judgment for defendant, and plaintiffs appeal.</p>

From Clatsop : Thos. A. McBride, Judge. This suit was brought in 1883 by James W. Welch to enjoin the Oregon Railway and Navigation Company from constructing a wharf in the Columbia River in front of water blocks 132 and 133 in the town of Astoria.

From Marion : George H. Burnett, Judge. This is an action by Henry H. Sievers to recover tbe value of certain crops grown by him on the land of Samuel B. Brown, but appropriated by the latter to his own use.

From Linn : Henry H. Hewitt, Judge. This is a special proceeding, under Section 2544, Hill’s Ann. Laws, to contest the defendant’s right to the office of Clerk of Linn County, to which he was declared elected by the county canvassing board. On the official ballot used in said county at the last general election the names of the candidates for the office of county clerk were arranged in the following order : For Comity Clerk. Vote for One. 70.

<p>1. Sufficiency and Effect of Adverse Possession. — Enclosing a tract of land and continually using it under color of title and claim of right constitute such an adverse possession as will start the statute of limitations, and, if continuous for the required time, will confer title, at least as between individuals : Joy v. Stump, 14 Or. 361, cited.</p> <p>2. Public Lands — Ratification of Agent’s Act. — County school superintendents are not the agents of the state to execute deeds to its school lands, but the state ratifies and becomes bound by their contracts to convey such lands when it accepts and retains the purchase price.</p> <p>3. Statute of Limitations — Adverse Possession — Bond foe Deed. — Where a vendee has gone into possession of land under a contract to purchase, his holding is adverse to the vendor from the time he complies with his part of the agreement, and the same rule applies to the state as to a natural person: Hill’s Ann. Laws, § 13, and Anderson v. McCormick, 18 Or. 301, cited.</p> <p>4. Idem. — A deed to land as to which an adverse possession against the grantor has ripened into title is ineffectual for any purpose.</p> <p>5. Read Property — Effect of Notice by Occupation. — The open, notorious and exclusive possession and occupancy of real property by a stranger to the title puts a purchaser from a third person upon notice and inquiry concerning the rights and equities of the pai’ty in possession, and charges him with all the knowledge that he might have obtained upon reasonable inquiry: Exon v. Danclce, 24 Or. 110, followed.</p>

From Multnomah : Alfred F. Sears Jr., Judge. This is an acton by Frank Botefuhr to recover $80.45 for goods, wares, and merchandise alleged to have been sold and delivered to John Rometsch at his special instance and request. The complaint is in the usual form in such actions.

From Multnomah: Alfred F. Sears Jr., Judge. This action was brought in a justice’s court by James A. Malarkey against Charles M. O’Leary to recover the penalty provided in Section 3034, Hill’s Ann. Laws, for the refusal of a mortgagee to discharge a mortgage.

From Multnomah : John B. Cleland, Judge. This is a suit to foreclose a mortgage.

From Multnomah.: E. D. Shattuck, Judge. Action in justice’s court by James N. Wheeler against F. Otto Burckhardt and others. From a judgment dismissing the action, plaintiff appealed to the circuit court, which gave judgment for plaintiff, and defendant Burckhardt appeals.

<p>1. Construction of Contract — Hiring at 'Will. — A contract of employment for a year containing an agreement that “this contract shall be renewed during the strict performance of its conditions,” is a contract at will which may be terminated by either party at his pleasure, after the expiration of the stated period: Christensen v. Pacific Coast Borax Co., 26 Or. 302, cited.</p> <p>2. Construction of Contract — Renewal Clause. — Such a contract, however, imposes on the employer the obligation to renew the contract on the same terms for a second year.</p> <p>3. Construction of Contract — “Settlement.”—The word “settlement,” as used in a contract requiring a collector to pay in moneys as he collects, and make a complete settlement on certain days, means payment, and not a computation of accounts.</p>

From Benton: J. C. Fullerton, Judge. Suit by the First National Bank of Colfax, Washington, against A. C. Richardson and others to set aside certain deeds, and subject the property to certain alleged judgments said to have been theretofore obtained by said bank against certain of the defendants. There was a decree as prayed, from which defendants appeal.

From Marion : Henry H. Hewitt, Judge. Suit by E. P. McCornack, trustee, against the Salem Consolidated Street Railway Company to foreclose a mortgage, in which A. R. Heintz & Go. intervened. The defendant, the Salem Consolidated Street Railway Company, is a corporation organized under the laws of Oregon, for the purpose, among others, of operating a street railway, and of supplying light and electric power through and by means of electrical appliances.

<p>1. County Board of Equalization — Power to Assess. — A county board of equalization may assess property taxable in its county omitted by the assessor from the roll, and fix a valuation thereon, under Hill’s Ann. Laws, §§ 2778,2779, without other notice than the general one given by the assessor of the meeting of the board to correct and equalize the assessment roll.</p> <p>2. Remission of Taxes by Sheriff. — The sheriff is not authorized under Hill’s Ann. Laws, § 2882, to remit taxes where the assessment has been made by the board of equalization instead of the assessor: Steel v. Fell, 29 Or. 272, applied.</p> <p>3. Estoppel to Claim Remission of Taxes. — A taxpayer who personally appears before the board of equalization and makes oath that she is the owner and holder of certain property, is not entitled to have the taxes thereon remitted on her bare subsequent affidavit that she is not the owner.</p>

From Marion : George H. Burnett, Judge. Action by P. A. Cocliran, F. A. Ford, and J. H. Mack, against J. E. Baker, to recover damages for the breach of an implied warranty of authority to sign a certain bond. Defendant appeals from a judgment against him. Before the final hearing respondents moved for permission to correct a mistake in the judgment, and offered to remit an excess that had been inadvertently entered in their favor.

From Multnomah : Loyal B. Stearns, Judge. Suit by Chas. P. Elwert against' Sarah Norton and others, in which plaintiff lost. He appealed; whereupon it was moved to dismiss his appeal. This was overruled, but on the final hearing the decree was affirmed.

From Coos: J. O. Fullerton, Judge. This is an action by the Coos Bay, Roseburg and Eastern Railroad and Navigation Company against Julia M. and William W. Endicott, to appropriate land for a right of way for a railroad. The summons was served upon the defendants on the third day of May, 1894.

<p>1. Foddowing Tbust Funds — Pbefebenoes.*—One claiming a preference over other creditors on account of trust property must identify the specific property, or its proceeds, or show that the property of the debtor which he seeks to affect with the preference includes the trust property: Ferchen v. Arndt, 26 Or. 121, cited.</p> <p>2. Idem. — Where a trustee deposited trust funds to his credit in his own bank, and such funds were commingled with and used as a part of the general funds of the bank, in the ordinary course of its business, so that the identity of the trust fund was wholly lost, the trust creditor is not entitled to a preference over other creditors out of money left in the bank upon an assignment by the trustee for creditors.</p>

From Multnomah : Loyal B. Stearns, Judge. This is a suit by Katie J. Loomis and Olive F. Swafford against Lewis and Caroline Rosenthal to establish a trust in real property, to set aside certain conveyances thereof, and to recover the rents and profits arising therefrom.