Volume 36 — Oregon Reports

From Douglas : J. C. Fullerton, Judge. Bill by Asher Marks against William B. Willis and others to restrain the enforcement of an execution. The facts are that on May 8, 1894, the defendant Willis recovered a judgment against the plaintiff in the County Court of Douglas County in an action to recover possession of a certain verified claim against the estate of S. Marks & Company, or, if delivery could not be had, for the sum of $477.50, the value thereof.

<p>From Multnomah : Loyal B. Stearns, Judge.</p> <p>Suit by Eldon A. Kern against J. W. Kern, Sarah M. Kern and William Kern to declare a trust in certain land. Defendants prevailed ; hence this appeal.</p>

From Douglas : J. C. Füllertón, Judge. This is a controversy arising out of the settlement of an estate.

From Multnomah.: Melvin C. Geoege, Judge. The defendant, L. Schuman, was charged in the Justice’s Court of Portland District with unlawfully having in his possession for sale, offering for sale, and selling, seven trout.

From Coos : J. C. Fullerton, Judge. Bill in equity by J. J. Stanley and others against J. A. Luse and others. From a decree setting aside a purchase by defendants, as directors of the corporation, and calling in defendant’s stock, defendants appeal.

From Polk : Geoege H. Burnett, Judge. A former conviction of W. G. Magers was reversed (35 Or. 520), and on a second trial the defendant was again convicted and sentenced to be hanged.

From Harney: Morton D. Clifford, Judge. Bill for an injunction by John T. Bailey against the Malheur and Harney Lake Irrigation Company.

From Multnomah: E. D. Shattuck, Judge. This is an action by U. S. Grant Marquam to recover from Geo. C. Sears, formerly sheriff, certain fees which the latter exacted from sundry litigants for serving a summons and a writ of attachment in the year 1894.

From Multnomah: E. D. Shattuck, Judge. Action by Otto Schumann against Phoebe Wager to recover the balance due upon the purchase price of a rustic monument. It is alleged that plaintiff furnished the monument to defendant at the agréed price of $145 ; that $85 thereof has been paid, and judgment is demanded for the balance. Defendant admits that plaintiff furnished the monument, but denies that it was for any agreed or stipulated consideration.

From Lane : J. W. Hamilton, Judge. E. D. Horner was convicted of uttering and publishing a forged instrument, and appeals. The state asks a dismissal.

From Multnomah.: E. D. Shattuck, Judge. This is an appeal from an order setting aside and vacating the satisfaction of a judgment.

<p>From Clatsop : Titos. A. McBride, Judge.</p> <p>A. M. Rowe appealed from a conviction on a criminal charge. The attorney-general moves to dismiss the appeal.</p>

From Wasco : W. L. Bradshaw, Judge. Suit by the Oregon Lumber Company, a private corporation, against Levi and Burns Jones to declare a resulting trust in its favor as to certain land. Plaintiff had a decree, from which defendants appealed.

From Malheur: Morton D. Clifford, Judge. This suit was commenced June 26, 1896, by Daniel Layery to enjoin Thos.

From Clackamas : Ti-ios. A. McBride, Judge. Suit by Rudolph Koerner and Fred Meyer against the Willamette Iron Works, ending in a decree for plaintiffs, from which defendant appeals.

From Multnomah: John B. Cleland, Judge. Suit by Mary O’Brien against John O’Brien for a divorce because of alleged cruel and inhuman treatment rendering life burdensome, under Hill’s Ann. Laws, § 495, subd. 6. Defendant appealed from the decree. After the appeal had been perfected the plaintiff applied to the supreme court for an order requiring the defendant to pay a reasonable amount for her support and counsel fees.

<p>From Multnomah : Loyal B. Stearns, Judge.</p> <p>Action by Edward Hannan against J. R. Greenfield and another. Judgment for plaintiff, and defendant Greenfield appeals.</p>

<p>Service of Notice of Appeal in Criminal Case. — A notice oí appeal by a defendant from a judgment of conviction of a crime must be served on the clerk of the court in which the judgment roll was filed: State v. Horner, 86 Or. 68, followed.</p>

From Multnomah.: E. D. Shattuck, Judge. This is an action by J. M. Russell & Company against Ernest R. Lilienthal to recover for certain hops alleged to have been sold by the plaintiff to the defendant. The case was tried without the intervention of a jury, and from the findings of fact it appears that on November 7, 1896, the plaintiff and defendant entered into a contract in writing, of which the following is a copy: “Portland, Oregon, Nov. 7th, ’96.

<p>Assuming Mortgage — Evidence.—'Two grantees of land, under a deed stipulating that they were to assume a mortgage on the land, conveyed the land to defendant by a quitclaim deed, In which defendant did not assume the mortgage. The grantees testified that defendant agreed to assume the mortgage. Defendant testified that he refused to assume the mortgage when the grantees refused to execute a warranty deed, and his testimony was corroborated by the draftsman of the quitclaim deed. There was evidence of contradictory statements by the draftsman. Hold, that the evidence was not sufficient to show that defendant had assumed the payment of the mortgage.</p>

From Grant: Morton D. Clieeord, Judge. This is an action brought by Phil Metschan against Chas. F. Hyde and Grant County for the restitution of money collected on a judgment which was subsequently reversed on appeal.

From. Marion : George H. Burnett, Judge. Action by Henry A. Simonds and another, as partners under the firm name of F. W. Simonds & Son, against Frank T. Wrightman, sheriff. Judgment for plaintiffs, and defendant appeals.

From Marion : George H. Burnett, Judge. This is an action by Sam H. Brown to recover from the Southern Pacific Company the damages caused by the killing of four of plaintiff’s cows by one of defendant’s locomotives.

From Harney: Morton D. Clifford, Judge. Writ of review issued on petition of the Frencli-Glenn Live Stock Company against Harney County and others. From a judgment dismissing the writ, petitioner appeals.

From Sherman : W. L. Bradshaw, Judge. Erastus Rhodes, as receiver of P. Weyhrich & Company, brought two actions, one against Charles H. Belchee and one against J. F. Belchee, to recover on certain promissory notes. Defendants each had judgment, and the two cases are now reported under one head.

From Multuomah: Alfred F. Sears, Jr., Judge. This is an action by R. S. Perkins against B. F. McCullough and W. F. Matlock to recover the value of seven steers, one stag, and four cows, the property of plaintiff, alleged to have been unlawfully converted by the defendants to their own use.

From Multnomah : Alfred F. Sears, Jr., Judge. Action by M. J. MacMahon against John F. Duffy.

From Douglas : J. C. Fullerton, Judge. Action by Aaron Bose against Hyman Wollenberg. In a former appeal by plaintiff the case was reversed (31 Or. 269, 65 Am. St. Bep. 826, 39 L. B. A. 378, 44 Pac. 382), and plaintiff prevailed on the second trial.

<p>From Multnomah: Loyal B. Stearns, Judge.</p> <p>Bill by A. Gf. Spalding & Brothers, a corporation, against Sherman D. Brown and another. From a decree for defendants, plaintiff appeals.</p>

From Linn : Henry H. Hewitt, Judge. This is a suit by D. B. Monteith, a citizen and taxpayer of the City of Albany, to enjoin A. E. Parker, the treasurer thereof, from paying certain city warrants alleged to have been unlawfully issued.

From Multnomah : Arthur L. Frazer, Judge. Proceedings by the state, on relation of R. F. Bell, against William Frazier, as Sheriff of Multnomah County, for mandamus to compel defendant to serve a summons in an action brought by the relator against one Grimes in the circuit court of that county without the fees required by the act of February 18, 1899, being first paid. (Laws, 1899, p. 140), and the only question for consideration is the constitutionality of such act.

<p>Whit of Assistance — Sufficiency of Petition. — If it be conceded that it is a prerequisite to the obtainment of a writ of assistance in a foreclosure proceeding that the sheriff’s certificate of sale should be exhibited to the party in possession at the time of the demand, an allegation in an affidavit for such a writ that plaintiff “demanded” possession of the property, which was refused, is sufficient, since under that allegation evidence can be admitted that the sheriff’s certificate of sale was exhibited at the time demand was made.</p>

From Wasco : W. L. Bradshaw, Judge. The defendant Otis Savage was jointly indicted with Frank Klein for the crime of larceny.

<p>Vendor and Purchaser — Rescission While Retaining Possession. — Tbe vendee in an executory contract for the sale of land cannot rescind such contract and sue to recover the money already paid under such contract while retaining possession of the property — before rescinding he must return the possession: Vaughn v. Smith, 34 Or. 54, applied.</p>

<p>Larceny — Evidence oe Another Similar Crime. — In a prosecution for larceny it is prejudicial error to admit evidence that defendant had other stolen property in his possession, it not appearing that such other larceny was a part of the transaction for which defendant was on trial, or was connected with it in respect to either time or locality: State v. Roberts, 15 Or. 187, distinguished.</p>

<p>1. Public Lands — Second Survey as Notice — Estoppel.—The United States, while it continues in the ownership of lands which by public survey appeared to abut on non-navigable waters, has the right to readj ust the marginal survey, and reserve uplands that appear between the actual margin of the water and the meander line as originally run, and a purchaser therefrom after a second survey, which reserved upland between the first survey and the margin of a non-navigable lake, purchases with notice thereof, and is estopped to claim beyond the boundary shown by the survey under which he purchased.</p> <p>2. Swamp Land — Effect of Patent. — The Swamp Land Act of 1850 as amended March 12,4860, constitutes a grant in prcesentt of all lands that were on that date swamp and overflowed, but the grant is not complete until the lands have been identified and patented. The patent is considered the final official certificate of the character of the land, and, when issued, relates back to March 12,1860, and carries title as from that day, so that a purchaser of swamp or overflowed land from the state has a better title thereto than a homesteader who settled thereon after 1860.</p> <p>3. COLLATEKAL ATTACK ON GOVERNMENT PATENT — SWAMP LAND. — A government patent cannot be collaterally attacked — so, in an action of ejectment by a swamp land patentee against a homesteader of the same property, it was not error to refuse to allow defendant to show that the land in dispute was not swamp but was really beneath the waters of a non-navigable lake.</p>

<p>From Multnomah : Loyal B. Stearns, Judge.</p> <p>Suit by the Portland Trust Company of Oregon against J. C. Havely and others. Decree for plaintiff. Defendants appeal.</p>

From Multnomah: E. D. Shattuck, Judge. This is a special proceeding by Conrad Young against William Frazier, as Sheriff of Multnomah County, to have the cause of his imprisonment inquired into, and to be relieved therefrom.

<p>1. Construction oe City Charter — Gaming.—In Portland City Charter (Laws, 1893, p. 820, g 36, subd. 5), granting the council authority to prevent and suppress gaming and gambling houses, the word “gaming” is used as a substantive, and not an adjective.</p> <p>2. Lottery— Gaming.— Conducting a lottery is gaming, within Portland City-Charter (Laws, 1893, p. 820, g 36, subd. 5), authorizing the prevention and suppression of gaming.</p> <p>3. City Ordinance — Burden oe Proving Innocence. — A city ordinance making it unlawful for any person to have in his possession any lottery ticket, unless it be shown that such possession is innocent, or for a lawful purpose, is void, since it puts on defendant the burden of proving his innocence.</p>

From Washington : Alfred F. Sears, Jr., Judge. Action by Joseph Dillery against John Borwick to recover the possession of a span of horses, wagon, and harness, and a colt, or their value in case delivery cannot be had, and damages for their detention.

From Lane : J. C. Fullerton, Judge. Action by McCormick Harvesting Machine Company against Emily Hovey, substituted for A. G-. Hovey, deceased,' formerly doing business under the firm name of the Lane County Bank, for money had and received. Judgment for plaintiff, and defendant appeals.

From Marion : Henry H. Hewitt, Judge. Suit by A. N. Moores against Boss E. Moores and others as joint executors of Ellen L. Moores, deceased. There was a decree in favor of plaintiff, and defendant’s appeal. Plaintiff now moves to dismiss the appeal.

<p>Administrators — Buying Legacy. — Hill’s Ann. Laws, g 1166, providing that the order of confirmation of an administrator’s sale is conclusive as to the regularity of the sale, and no further, and that all purchases of the property of the estate by an * * * administrator, however made. * * * are void, refers to purchases of the property of the estate by the administrator at his own sale, and not to a purchase by him of a legacy bequeathed by deceased, which, if fair, and for an adequate consideration, is valid.</p>

From Marion : George H. Burnett, Judge. Action by John Savage, Sr., against John Savage, Jr. and another.

From Multnomah: John B. Cleland, Judge. In the matter of the estate of Laura Marie Barnes, deceased, A. E. Roclcey and'another petitioned for removal of W. St. M. Barnes as administrator. From a decree of the circuit court affirming the county court’s order of removal, the administrator appeals.

From Multnomah : J. C. Fullerton, Judge. Action by J. D. Fenton against the Fidelity & Casualty Company of New York, upon a policy of insurance issued by the defendant company to the Willamette Steam-Mills Lumbering & Manufacturing Company, insuring it against liability for damages on account of injuries accidentally suffered by its employees.

<p>1. Dub Process of Law — Necessity of Indictment. — Tlie expression “due process of law,” as used in the Fourteenth Amendment to the Constitution of the United States, refers to the right of a fair and regular trial, and not to tlie manner of preferring a charge of crime; so that an accusation by a public officer without the intervention of a grand jury is not in violation of said amendment.</p> <p>2. Necessity of Grand Jury — Accusation by Information. — The act permitting district attorneys to file informations charging eximes in place of presentments by grand juries (Laws, 1899, p. 99), is not obnoxious to the Constitution of Oregon, Article VII, § 18, authorizing the legislature to modify or abolish grand juries.</p> <p>3. SUFFICIENCY' of EvrDENCE — Motion to Acquit. — Defendant lived about two miles from the granary from which two sacks of alfalfa seed were taken. The locks on the granary door had been broken with a punch secured from a shed, to and from which boot tracks were traced, similar to tracks found between the granary and a barnyard gate from which tracks of two horses were traced through a field to a road and to a gate near where defendant lived. In the course of the horses’ tracks, a letter was found, addressed to defendant, and similar boot tracks were found at the outlet from the field to the road. A witness testified that shortly thereafter defendant and another tried to sell him alfalfa seed, while another witness testified that, three days after the taking, defendant and such other sold him two sacks of alfalfa seed of the same character as that taken, the sacks being identified as those stolen. Held, that it was not error to refuse an instruction to acquit, since the testimony was sufficient to justify an inference of guilt.</p> <p>4. Liability of Joint Conspirators. — Where it is shown that two or more defendants were acting together for a common purpose, the act of one in pursuance of the general plan is the act of all, and they may be prosecuted either jointly or severally therefor.</p> <p>5. Instructions Given in General Charge. — it is not error to refuse an instruction given in effect in the general charge.</p>

From Multnomah : E. D. Shattucic, Judge. Action by M. Wachsmuth against Alexander Rout-ledge, doing business as the Portland Oyster Company. Judgment for plaintiff. Defendant appeals. A motion to dismiss the appeal was overruled, and the judgment was affirmed owing to the absence of appellant’s attorney. This was afterward set aside, and the cause fully tried.

From Multnomah : Alfred F. Sears, Jr., Judge. Action by A. F. Wade against the City & Suburban Railway Company to recover damages for the death of plaintiff’s child, aged three and one-half years, caused by the alleged negligence of the defendant corporation in operating one of its electric cars at a dangerous and reckless rate of speed on G-lisan Street, in the City of Portland.

<p>From Umatilla : Stephen A. Lowell, Judge.</p> <p>Edwin L. Mims appeals from a judgment of manslaughter.</p>

From Multnomah : E. D. Shattuck, Judge. Action by Thomas Usborne against GeorgeR. Stephenson and another. The plaintiff is a hop factor in the City of London, and the defendants are hop growers in this state. In September, 1893, the defendants consigned to plaintiff, for sale on commission, ninety-eight bales of hops, of the aggregate weight of seventeen thousand three hundred and ninety-two pounds, upon which he made an advance of $1,550.

<p>Contract — Indemnity—Liability.—An agreement by which the maker undertakes to save harmless the obligee “against the payment” of certain claims for which such obligee was liable, is a contract of indemnity against, payment only — the obligee cannot recover the amount for which he is liable, but only such sums as he has paid: Fenton v. Fidelity & Casualty Co. 36 Or. 283, cited.</p>

From Benton : J. C. Fullerton, Judge. The plaintiff herein prays an order directing an inter-pleader between several defendants to determine conflicting interests touching a fund in his hands.

<p>From Multnomah : E. D. Shattuck, Judge.</p> <p>Action by Cora Oyler against Israel and Mary Dautoff, in replevin, resulting in a judgment for plaintiff.</p>

<p>Risht of Aliens to Punchase Tide Lands. — Under Act 1891, Section 1 (Laws, 1891, p. 189), authorizing the Board of School Land Commissioners to sell tide lands “to citizens of the State of Oregon,” and section 2, requiring a purchaser to file with his application an affidavit that he is a citizen of the United States and of the State of Oregon, an unnaturalized alien who has declared his intention to become a citizen is not qualified to purchase lands under such act.</p>

From Multnomah.: Arthur L. Frazer, Judge. Action by T. A. Garbade against the Larch Mountain Investment Company, resulting in a judgment for plaintiff, from which defendant appeals. Respondent now moves to affirm on the record, and appellant moves for a rule on the clerk of the trial court to supply defects in the transcript. Subsequently the appeal was dismissed pursuant to stipulation.

From Marion : George H. Burnett, Judge. Action by the State of Oregon against Marion County to recover interest upon state taxes apportioned to defendant, and remaining unpaid after the first day of March of succeeding years for which they were apportioned. From a judgment for defendant, the state appeals.

From Multnomah : Loyal B. Stearns, Judge. Suit by Edw. Mendenhall against Mrs. J. B. Elwert and her son, and daughter, to set aside certain conveyances from Mrs. Elwert to her son, and for general equitable relief. There was a decree as prayed for, from which the defendants appealed. Plaintiff’s motion to dismiss the appeal was overruled, and the decree of the lower court upheld.

From Josephine : H. K. Hanna, Judge. This is a suit by the First National Bank of Southern Oregon against Lawrence Leonard and wife to foreclose a mortgage executed by the defendants as husband and wife to secure the husband’s note for $3,000, which mortgage contains the following covenant: “And the said Lawrence Leonard and Mary Ellen Leonard, his wife, their heirs, executors, and administrators, doth covenant and agree to pay unto the said party of the second part, its…

From Jackson : H. K. Hanna, Judge. Suit by F. Y. Medynski against B. R. Theiss and G. W. Bashford to dissolve a partnership and for an accounting. This appeal is from an order directing the distribution of the fund arising from the sale of the property.

From Multnomah.: Loyal B. Stearns, Judge. Suit to foreclose a mechanic’s lien by the Cooper Manufacturing Company against M. J. Delahunt, a lot owner, John Chandler, his contractor for a building thereon, and the Alliance Trust Company, who took a mortgage on the lot before the contract for the building was let. From a judgment of dismissal the plaintiff appeals. The defendant M. J. Delahunt moved to dismiss the appeal.

From Multnomah: E. D. Shattuck, Judge. In March, 1896, W. H. Saylor, the plaintiff, recovered a judgment in the County Court of Multnomah County against the defendant Christy Oakes, from which she took an appeal to the circuit court by serving and filing a notice, and about thirteen days thereafter an undertaking therefor, with the defendant Thomas Duffy as surety.

From Multnomah: E. D. Shatttjcic, Judge. This is a summary proceeding to compel the clerk of the trial court to issue an execution. The facts are, that one Otto Morrell recovered a judgment in the Circuit Court of Multnomah County, on May 3, 1893, for $10,000 against Joseph Miller, and the judgment was duly entered on the judgment lien docket on the day of its rendition.

From Multnomah : Alfred. F. Sears, Jr., Judge. Action by Amos T. Young and others against the State of Oregon to recover the proceeds of the escheated property of one Fenstermacher. There was a judgment awarding plaintiffs the amount of the fund, less the expenses of this and two previous cases brought for the same purpose by other persons.

<p>From Marion : Geo. H. Burnett, Judge.</p> <p>Action by Faber & Neis against C. R. Hougham for damages, wherein plaintiffs recovered judgment.</p>

<p>From Multnomah : E. D. Shattuck, Judge.</p> <p>Action for damages by H. W. Wesco against John W. Kern. From a judgment for plaintiff this appeal is taken.</p>

<p>From Multnomah : E. D. Shattuck, Judge.</p> <p>Action for damages by Leo Hamerlynck against M. C. Banfleld and Thomas Rand, partners, resulting in a judgment for plaintiff.</p>

<p>1. Rules of Court — Time for Filing Affidavits. — Affidavits not filed in the supreme court within the period limited by Rule 19 (24 Or. 591) will not be considered, though it is shown that the attorney who prepared and filed them was so occupied in the trial of a cause that he could not attend to the matter sooner.</p> <p>2. Affirmance of Judgment — Damages.—In support of amotion for affirmance of a judgment under Section 547, Hill’s Ann. Laws, the averment that the appeal was not taken in good faith, but for delay, without showing any facts from which the truth of such averment may be determined, is not sufficient to support an allowance of damages.</p> <p>3. What Costs are Recoverable on Affirmance. — The costs and disbursements recoverable on the affirmance of a judgment, under Section547 of Hill’s Ann. Laws, are those taxed in the lower court as part of the judgment there and the costs attending the appeal.</p>

From Marion : Henry H. Hewitt, Judge. Mortgage foreclosure by David W. Edgar against T. L. Golden wherein plaintiff had a decree. After an appeal ' had been perfected, the surety on defendant’s undertaking prayed to be relieved from further liability. The motion was overruled, and on final hearing, the decision of the lower court was approved.

From Douglas : J. C. Fullerton, Judge. Suit by the Dundee Mortgage & Trust Investment Company, Limited, against John H. Goodman for the foreclosure of a bond for a deed. From a decree for plaintiff, defendant appeals.

From Multnomah: Alfred F. Sears, Jr., Judge. This was originally an action by Abbie K. Munger to recover possession of certain real property from the South Portland Land Company. Defendant filed a cross complaint alleging an equitable defense, whereupon the law action was stayed and the disputed questions tried in equity. Various persons having been brought in, a default decree was entered against some defendants and a' final decree on the merits against the others.

<p>From Douglas : J. C. Fullerton, Judge.</p> <p>Injunction suit by George Risch against Jesse Wise-man, and others. From a decree for plaintiff, defendants appeal.</p>

From Douglas : J. C. Fullerton, Judge. . Action by Jacob Denn against John P. Peters, to recover an installment of the purchase price of a tract of land. Plaintiff had judgment for part of his claim and defendant appealed.

From Multnomah : Henry E. McGinn, Judge. Action on a builder’s bond by Charles K. Henry against Charles B. and Willard Hand, sureties, and W. E. MacLeod. The defendant MacLeod, on January 4, 1893, contracted with plaintiff to construct a building for him, and complete the same on or before March 25, 1893.

From Multnomah: Loyal B. Stearns, Judge. This is a bill of interpleader, filed by the Independent Order of Foresters, a benevolent association, for the determination of conflicting claims to a- beneficiary certificate issued to one Keliher, a member of a subordinate court of the order located at Portland, who died September 2, 1895.

From Multnomah : Alfred F. Sears, Jr., Judge. Action by W. H. Nunn against Mary Bird and others, to recover the possession of certain personal property, or the sum of $350, its value, in case possession thei’eof cannot be had.

From Multnomah.: Loyal B. Stearns, Judge. Suit by the Hand. Manufacturing Company against J. S. Marks and divers others to foreclose a mechanic’s lien. By a process of elimination, the case finally consisted of a dispute between the sureties on the contractor’s bond and the property owner, the particulars of which' are stated in the opinion.

From Linn : Geo. H. Burnett, Judge. Action by J. A. Crawford against the Albany Ice Company on an alleged promissory note of the corporation. Being nonsuited because the court did not consider the writing as the note of the company, plaintiff appeals.

From Polk : Henry H. Hewitt, Judge. This is a special proceeding by M. P. Jones to review the action of the County Court of Polk County in the matter of establishing a public highway.

From Marion : Geo. EL Burnett, Judge. This is an action by the Capital Lumbering Company to recover the alleged value of certain chattels.

<p>1. Dismissing Appeal — Filing Assignments oe Error — Practice.—Where the respondent has not heen materially affected by a failure to print the assignments of error in the abstract, as required by Buies 4 and 9 of the court (24 Or. 595), the omission may be excused on the explanation of appellant’s attorney that it was an oversight. A formal written motion for permission to correct the abstract, showing facts excusing the omission, is the usual and better practice, though an oral application at the hearing is permitted in this case.</p> <p>2. Jurisdiction oe Equity — Validity oe Assignment. — A court of equity has j urisdiction to try and to determine the validity of a general assignment for creditors, and to appoint its receiver to assume control of the assigned property. Such property is not in custodia legis, whatever may be its position under a confessedly valid assignment.</p> <p>3. Creditor’s Suit — Evidence oe Judgment. — Since a creditor cannot sue to set aside a debtor’s conveyance as fraudulent until he has acquired a lien on the property by j udgment or attachment, the record of an action which showed that such creditor had attached defendant’s goods, but did not show whether or not the attachment was prior to his suit to set aside the conveyances, is not competent evidence.</p> <p>4. Creditor’s Suit — Issuance oe Execution. — The issuance and return of an execution is not a necessary preliminary to the right to maintain a creditor’s suit to set aside conveyances by the debtor and to uncover assets, whez-e the debtor is alleged to be insolvent.</p> <p>5. Waiver oe Objection to Supplemental Bill. — Where the plaintiff in a . suit to set aside a conveyance as in fraud of creditors, based on an alleged attachment, filed a supplemental bill, averring that since the commencement of the suit he had secured j udgment again st defendant in his attachment action at law, and such supplemental bill was not objected to on the ground that it sought to maintain the suit on new facts which had occurred since the filing of the original bill, such objection was waived, and plaintiff was entitled to have the case considered on the allegations of the bill as supplemented.</p> <p>6. Creditor’s Suit — Right to Fide Supi>lemental Bide. — 'Where a creditor» has commenced a suit to set aside fraudulent transfers by his insolvent debtor and to reach concealed assets, based on the lien acquired by an attachment in a law action, he is entitled as of right to file a supplemental bill showing that since commencing his creditor’s suit the attachment claim has been reduced to judgment.</p> <p>7. Position oe Intervening Parties to Creditor’s Suit — Jurisdiction.— Creditors who intervene in- a suit to reach concealed assets become thereby-entitled to the protection of the court as much as if they had originally been parties, and the failure of j urisdiction as to the plaintiff will not affect the right of such intervenors to have the suit continue in order to accomplish its original purpose.</p> <p>8. Evidence oe Fraudulent Conveyance. — The alleged consideration for mortgages executed by defendant to his wife and brother-in-law was a sum loaned by the wife nine years prior to the execution of the mortgages, and a sum advanced by the brother-in-law thirteen years before. No demand or payment had ever been made thereon, nor any account of them kept by defendant on his own books, nor in his annual invoices or statements to commercial agencies. Some time before the execution of the mortgages, defendant conveyed land to his wife almost equal in value to the alleged debt, and the brother-in-law had for years purchased goods from defendant, paying cash therefor. Held, that the conveyances were void, as in fraud of creditors.</p> <p>9. Preferring Creditors — Void General Assignment. — Defendant, being on the verge of failure and pressed by creditors, voluntarily executed chattel mortgages to secure other creditors; and, on plaintiff immediately attaching the goods, defendant made a general assignment for creditors. One of the debts secured by the mortgages was also secured by defendant’s wife, who had property sufficient to satisfy it, so that the mortgage redounded to her benefit. At the time of executing the mortgages, defendant had discussed with his attorney the advisability of making an assignment. Held, that the mortgages were not a preferment of creditors in good faith, but that they were made in contemplation of the assignment, and were to be treated as a part of the same transaction, and therefore void.</p> <p>10. Fraudulent Conveyances — Disposal of Proceeds by Receiver. — Where certain creditors in a suit against mortgagees, instituted, not for the benefit of general creditors, but to set aside certain mortgages executed by their debtor which are valid as between the parties, establish the invalidity as to them of such mortgages, the surplus proceeds of the mortgaged property, after satisfying complainants, may be paid to the mortgagees.</p>

From Clackamas : Allred F. Sears, Jr., Judge. Bill by James B. W. Sellwood and others against P. J. Henneman and others to reform two deeds.

From Marion : George H. Burnett, Judge. Action by W. J. and F. H. Huffman against John Knight for converting certain personal property belonging to plaintiffs. Judgment for plaintiffs, from which defendant appeals.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by T. T. Burkhart, an assignee after maturity of a promissory note, to recover from R. C. Hart the amount thereof. Judgment for defendant and plaintiff appeals.

From Multnomah: John B. Cleland, Judge. Bill by F. L. Richmond and others against Adelaide Bloch and her children to set aside a conveyance of certain real property. ' Defendants appeal from a decree for plaintiffs on the pleadings.

Prom Umatilla : Stephen A. Lowell, Judge. J. L. Berry appeals from an order remanding him to the custody of the sheriff after a hearing on his application to be released on a writ of habeas corpus.

From Harney: Morton D. Clifford, Judge. Application by John R. Hendricks for an injunction restraining the Malheur & Harney Lake Irrigation Company from lowering the waters of a certain lake. Plaintiff moved specially to quash the service of summons, and declined to plead further when the motion was overruled.

<p>From Harney: Morton D. Clifford, Judge.</p> <p>Action of ejectment by the French-Glen Live Stock Company against James Colwell. Plaintiff appeals from a judgment against it.</p>

<p>Prom Douglas : J. C. Fullerton, Judge.</p> <p>Suit by Wm. E. Willis as administrator of the estate of M. B. Holmes, deceased, to uncover certain alleged assets in the hands of George A. Smith.</p>