Volume 38 — Oregon Reports

From Lane: J. C. Fullerton, Judge. Suit by Fredericka Rostein against Jacob R. Park to set aside a conveyance of real estate.

From Linn: Geo. H. Burnett, Judge. This is a suit by Emma S. Kester, a married woman, against her husband, James Kester, and his brother-in-law, John Denney, to’ reinstate a promissory note from which she had torn the latter’s signature, and to recover the amount due thereon.

From Umatilla: Stephen A. Lowell, Judge. This is an action by Jesse L. Stamper against W. W. Raymond and J. B. Huntington for malicious prosecution.

From Josephine: Hiero K. Hanna, Judge. Action by A. W. Silsby and George H. Binns, as trustees of the Elmer-Brown Copper Mining- & Smelting Company against W. J. Strong, to recover possession of certain personal- property.

From Benton: J. W. Hamilton, Judge. This is an action for money by E. W. Ferguson and others against J. W. Ingle. The defendant, after denying the material allegations of the complaint, set up a counterclaim, and, a demurrer thereto having been sustained, the plaintiffs, by leave of the court, filed an amended complaint, and immediately moved for a judgment of non-suit. which being denied, the defendant filed an amended answer.

From Multnomah: Melvin C. George, Judge. Action by Lillie Myrtle Montour, by Helen Montour, her guardian ad litem, against the Grand Lodge of the Ancient Order of United Workman of Oregon to recover the sum of $2,000 on a certificate of mutual life insurance issued by the defendant to Daniel Montour, plaintiff’s father, in which she is named as the beneficiary.

<p>Injunction — Remedy foe Irregulae Levy of Execution.</p> <p>Where an execution is irregularly issued, or is being irregularly or oppressively levied, the proper remedy for the injured party is to move to quash; thus, where individual personal property of a surviving partner, who ivas administrator of the partnership estate, was seized under execution on a judgment against the firm, injunction will not lie to restrain a sale thereunder because the execution was issued in the name of the judgment creditor, who had been dead for a considerable time, and because the judgment had been presented as a claim against the partnership estate and neither allowed nor disallowed, and because the property levied on was individual personal property, since there was a complete and adequate remedy for the irregularity in the issuance of the execution and the subsequent proceedings thereunder, by a motion to quash in the court issuing the execution.</p>

From Multnomah: Arthur L. Frazer, Judge. Action on a note by the United States National Bank of Portland against L. Ferd Floss. An appeal was taken by defendant from an order sustaining a demurrer to the answer.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Suit by the Security Savings Bank against Susie W. Smith and others to foreclose a mortgage. Defendants appeal.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Bill by David Brand against Multnomah County' and others to enjoin the continuance of a structure in the street in front of plaintiff’s lots. The facts attending the present controversy are, in brief, as follows: The plaintiff is the owner of lots 2, 3, and 4 in block 72 of the City of Portland, extending on the east to the Willamette River, and having appurtenant thereto the usual riparian rights and privileges.

<p>Right to Use Testimony Given on Former Trial.</p> <p>1. Evidence that a witness a few months prior to the trial left for Alaska with the intention of staying two years, and that plaintiff had received a letter from him dated in Alaska, was sufficient proof of his nonresidence to admit the introduction of his testimony given on a former trial, under Hill’s Ann. Laws, § 706, Subd. 8.</p> <p>Pleading — Presumption Aeter Verdict.</p> <p>2. Where defendant, in answer to a complaint for the wrongful conversion of a building, alleged that the property was owned by' B, and was seized by the sheriff as B’s property under a writ of attachment, plaintiff’s motion for a judgment notwithstanding a verdict for defendant on the ground that the answer was insufficient in not alleging that B was in possession of the property was properly denied, since, as possession ordinarily follows ownership, B’s possession will be presumed after verdict.</p>

From Linn: GeO’. H. Burnett, Judge. This is an action by W. B. Barr against J. A. Warner to recover the reasonable value of a solar compass alleged to have been loaned to the defendant, who broke and neglected to return it.

<p>Redelivery Bond — Action eor Damages — Breach.</p> <p>' A replevin action having been commenced, the plaintiff therein gave the required bond - and the sheriff seized the property, whereupon defendant gave a redelivery bond> conditioned that “said defendant shall deliver said property to the above-named plaintiffs if delivery thereof be adjudged, and shall pay to said plaintiffs such sum as may for any cause be recovered against the defendant.” Subsequently a warehouseman who had charge of the property began an interpleader suit in which the original plaintiff was awarded the property and took it. No damages were allowed against the original defendant, who gave the redelivery bond. In an action by the original plaintiff on the bond, held, that there was no cause of action, as there had not been a breach of the bond, the property having been returned and no damages awarded.</p>

From Multnomah; Alfred F. Sears, Jr., Judge. Mandamus by Sam Mackin against the Portland Gas Company to compel the defendant company to supply the plaintiff with gas at his place of business, No, 107 Fourth Street, in the City of Portland.

From Marion: Geo. H. Burnett, Judge. On March 26, 1898, E. J. Chambers was appointed administrator of the estate of William J. Chambers, deceased. Subsequently Robert Chambers presented a claim aggregating $782.46, which was allowed by the administrator, and filed with his final account in the county court December 3, 1898.

<p>Municipal Corporations — Limit of Taxing Power.</p> <p>1. Under a city charter limiting the rate of taxation, dividing the total amount received from taxes into certain specified funds, and providing that “no other or greater sum shall be appropriated for the purposes above set forth,” no money other than that raised for such funds by general taxation can be provided for any of the purposes for which particular funds have been created; so that an ordinance levying a tax for the purpose of increasing one of the designated funds is invalid as an attempt to collect revenue in excess of the charter authority, the full rate of taxation having already been levied.</p> <p>Revenue Ordinance Not an Exercise of the Police Power.</p> <p>2. An ordinance intended to raise revenue for the increase of a certain fund, which ordinance is beyond the power of the council to enact as a revenue measure, cannot be sustained on the ground that it is an exercise of the police power.</p> <p>Collateral Presumption as to Performance of Public Duty</p> <p>3. In a collateral proceeding courts will conclusively presume that public officers, such as assessors, for example, have performed their duties in the manner and to the extent required by law.</p> <p>Vehicle Tax — Exercise of Municipal Taxing Power.*</p> <p>4. Portland city ordinance No. 11733. imposing a tax on vehicles, and providing that the sum so raised shall be used for the repair of streets, being invalid, as an attempt to raise revenue for the streets additional to that authorized by the city charter, cannot be sustained on the ground that though invalid in such regard, the revenue might be collected and placed in the general fund; the title of the ordinance declaring its purpose to be to raise revenue for the repair of streets.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. This action is brought by the corporation Wadhams & Company against Inman, Poulsen & Company, also a corporation, on the following order, given by the Washougal Land & Logging Company, for a valuable consideration, to the plaintiff: “Order No. 2. September 12, 1894. “Messrs.

From Marion: Reuben P. Boise, Judge. Suit by George W. Davis and others against Ernst Hofer and others to have a judgment and a sale thereunder set aside, and to require the defendants to account for money received in conducting the business of a corporation in which the parties to such suit are stockholders.

From Multnomah: John B. Cleland, Judge. Suit by the Security Savings & Trust Company and others against Bertha Loewenberg, executrix, and others to foreclose a trust deed given as security for the payment of money.

From Marion: Geo H. Burnett, Judge. Action by McKinley Mitchell against J. W. La Follett, brought on July 9, 1898, by the plaintiff, Mitchell, against the defendant, La Follett, to recover damages for a breach of the following contract: “Gervais, Oregon, May 17, 1898. “This is to certify that I have this day sold to McKinley Mitchell, of Gervais, Oregon, all my potatoes supposed to be 700 to 900 sacks, outside of the seed stock, on the following conditions, as follows, to…

From Marion: Reuben P. Boise, Judge. Suit to foreclose á mortgage executed solely by a married woman who had an estate by entirety in the premises. The husband afterward died, and upon the final hearing the mortgage was declared void because the husband had not joined in its execution.

From Klamath: Henry L. Benson, Judge. This is an action by Geo. A. Durkee against Jesse D. Carr to recover damages for the breach of an alleged contract.

<p>From Jackson: Hiero' K. Hanna, Judge.</p> <p>Suit by James Gaines against Spencer Childers and others. From the decree rendered, the plaintiff appeals.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. This is a suit by B. F. Saylor, an alleged creditor of the Commonwealth Investment & Banking Company, a corporation, against its stockholders, to subject the amount remaining unpaid on their subscriptions to the capital stock to the payment of his judgment.

<p>Mortgages — Effect of Default on Installments.</p> <p>A provision in an installment mortgage permitting a foreclosure “in case default is made in the payment of the principal or interest” does not make the entire obligation due on the failure to pay any or all of the installments less than the whole. In case a foreclosure is commenced for nonpayment of some installments, it should be dismissed on payment of the overdue installments with interest, and accrued costs and disbursements.</p>

<p>Right op City to Control Location op Wharves.</p> <p>1. Under the provisions of Section 4228, Hill’s Ann. Laws, which is printed in the margin below,* a city may prohibit or control the erection of wharves beyond low-water mark in navigable streams.</p> <p>Reasonableness oe City Regulations — Presumption.</p> <p>2. A regulation prescribed by a municipality under its delegated powers is presumptively reasonable.</p> <p>Statutory Construction — Control Over Navigable Rivers.</p> <p>3. Act Cong. Sept. 19, 1890 (26 Stat. 454, 455, §7), prohibiting the construction of a wharf outside the harbor lines of any port without the permission of the Secretary of War, does not prohibit a state or a city having power to control the location of wharves within its limits from enacting an ordinance restraining the construction of wharves beyond a wharf line adopted by the city, and which is within the harbor line fixed by the Secretary of War, since the act of Congress only prohibits the extension of the wharf beyond such line, -and does not either expressly or impliedly give riparian owners the right to wharf out to the government line.</p>

<p>Fraudulent Conveyance — Badges oe Fraud.</p> <p>The fact that a vendor is in debt and anxious to sell his property does not affect his right to dispose of it if he obtains a fair price and the transfer is made in good faith.</p>

From Multnomah: John B. Cleland, Judge. This is a suit by the German Savings & Loan Society to foreclose a mortgage given by the defendants J. W. Kern and wife to secure the payment of $50,000.

From Lane: J. W. Hamilton, Judge. Action by Ola Sharp against A. J. Johnson to recover possession of a race horse called Black Alder. The plaintiff alleges that she is the owner of an undivided one-third interest in the horse, and that B. L. Bradley is the owner of the other two-thirds; that she had a lien on Bradley’s interest therein, for the keep and board of the horse, under Section 3684 of the statute (Hill’s Ann.

From Multnomah: John B. Cleland, Judge. Suit by Adolph A. Dekum and others against Multnomah County, under Section 504 of Hill’s Ann. Laws, to determine an adverse claim to real property.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by Julia E. Hoffman, as executrix of the estate of Lee Hoffman, deceased, against E. H. Habighorst and others, on a promissory note for $15,000, executed by the appealing defendants and five others, payable to Mrs. Sarah Wertheimer, and by her assigned to the plaintiff after maturity''. The complaint is in the usual form, setting out the note in haec verba as follows : “$15,000.

<p>Quieting Title • — ■ Sufficiency of Description.</p> <p>In a suit to prevent cloud on title, a complaint describing the property as “70 acres thereof,” referring to a farm of 110 acres, is insufficient.*</p>

From Malheur: Morton D. Clifford, Judge. Suit to enj oin an alleged trespass, in which defendant successfully asserted title to the premises in controversy, whereupon the plaintiff appealed.

From Union: Robert Eakin, Judge. Action by the Farmers’ & Traders’ National Bank of La Grande, Oregon, against William Woodell. There was a judgment for the defendant for $i, from which plaintiff appeals.

From Harney: Morton D. Clifford, Judge. Petition for writ of review by the French-Glenn Live^ stock Company against Harney County and others to test the validity of the proceedings attending the opening of what is called the Dunn Roach The petitioner appeals from an order of dismissal.

From Multnomah: E. D. Shattuck, Judge. Appeal from an order denying an application to offset a judgment. The facts are fully stated in the opinion.

<p>Mortgage Foreclosure — Sufficiency of Complaint.</p> <p>1. A complaint in a mortgage foreclosure suit setting out in full a promissory note, averring the ownership and nonpayment thereof, and that it was secured by a regularly recorded mortgage on certain described realty, sufficiently states a cause of suit, after trial, in the absence of a demurrer, though the mortgage is not set out in haec verba or its legal effect pleaded: Berry v. King, 15 Or. 165, cited.</p> <p>Estoppel to Deny Existence of De Facto Corporation.*</p> <p>2. Where a private corporation has attempted in good faith to comply with the laws governing its organization, persons i who have borrowed from it, accepted its stock, and dealt with it in its corporate capacity, cannot question its corporate capacity to enforce its contracts because the law has not been fully complied with in its organization, and this statutory rule applies to building and loan associations as well as to other corporations.</p> <p>Building Association — Evidence of Authority.'</p> <p>3. .Under Laws 1895, p. 103, providing that, if the Secretary of State is satisfied that a foreign building association has complied with the requirements of the laws entitling it to do business in the state, he shall issue his certificate stating such compliance, such certificate is sufficient to establish, prima faeie, the authority of a building association holding it to do business in the state.</p> <p>Building Association —• Annual Premium — Usury-†</p> <p>4. Under a statute such as Laws 1895, p. 103, requiring (Section 4) the by-laws of building and loan associations to provide for the amount of the premium on loans and the rate of interest thereon; and declaring (Section 6) that its provisions relating to bidding on loans shall not apply to those associations that fix in their by-laws the rate of interest and the premium on loans; and (Section 7) that no premium taken by a building and loan association shall be treated as interest, or render the association amenable to the usury laws; a contract with such an association stipulating for a given rate of interest on the loan, and a premium at a stated per cent per annum on the face of the loan, payable during the life of the contract, is usurious, if the premium and the interest together exceed the legál interest.. Such a contract is illegal under the statute, for that does not permit the fixing of a premium by a rate per cent on the amount of the loan and dependent as to the time of its payment on the time the loan may remain unpaid; and it is illegal"under the established rule for fixing premiums in such associations, which is by the payment of a fixed and agreed sum, usually determined by bidding.</p> <p>Foreign Corporations — Transacting Business.*</p> <p>5. Where a foreign corporation loaned money in Oregon through a local agent, taking as evidence of the transaction a promissory note and a mortgage on Oregon land to secure its payment, and brings suit in the local courts on the contract, it has done business in this state, within the meaning of Laws 1895, p. 103, § 15, prescribing the conditions on which building and loan companies may “do business” in Oregon.</p> <p>Local or Foreign Contract — Domicil oe Parties.</p> <p>G. A contract made in Oregon between a citizen of Oregon and a foreign corporation doing business here, relating to Oregon property and sued on in the Oregon courts, is an Oregon contract, and must be construed according to local law.</p> <p>Usury — Intent to Violate Law Required.</p> <p>7. To constitute usury it must appear that the parties knowingly violated the law limiting the rate of Hire for money; so that where the parties have honestly made a mistake as to the rate that , might be lawfully charged, the defendant should be allowed credit for all that has actually been paid on account of the loan, and be charged with his loan at the legal rate.</p>

<p>Pleading — Complaint and Replt — Departure.</p> <p>1. Where the complaint, in an action for causing the death of a person, alleged that he was rightfully at the place of the accident by reason of the ownership of the locus in quo by his employers, and defendant railroad company answered that the locus in quo was its right of way, a reply that decedent’s employers and their servants had been licensed and invited by defendant to pass over the place where the accident occurred was not objectionable as a departure from the complaint.</p> <p>Pleading — Rule for Construing Complaints.</p> <p>2. Where a complaint is objected to on a question of evidence, all intendments are in its favor, while a contrary rule prevails in case "of a demurrer before trial.</p> <p>Rule in Pleading Negligence.</p> <p>3. In pleading negligence it is always necessary to allege that some act was negligently done or omitted, but it is not necessary to set forth the particular facts that show the act or omission to have been negligent: Woodward v. Or. Ry. <& Nav. Oo., 18 Or. 289, and McPherson v. Pacific Bridge Go., 20 Or. 486, distinguished; Wild v. Or. Short Line Ry. Go., 21 Or. 159, approved.</p> <p>Negligence- — Pleading Knowledge of Defendant.</p> <p>4. In an action by a stranger to recover damages for injuries caused by negligence it is not necessary to "plead defendant’s knowledge or negligent ignorance of the cause of the injury, whatever may be the rule in cases against municipalities or by servants against masters.</p> <p>Motion to Make Complaint More Definite.</p> <p>5. Where it appears that the particulars of an event in litigation must be within defendant’s knowledge, and plaintiff has stated a cause of action, and alleges that he has set forth all that he knows, a motion to make the complaint more definite and certain should be overruled.</p> <p>Duty oe Railroad to Trespasser or Licensee on Its Track.</p> <p>6. Railroads are not under obligation to watch for trespassers on their tracks at unusual places, nor do they owe any duty of active care to persons who are merely permitted to pass over or upon the right of way; but they do owe such a duty to those who may have been led by the express or implied consent of the defendant to use the premises as a passage way. The difference is between a trespasser or a bare licensee, and a licensee by tacit consent or passive acquiescence.</p> <p>Railroads — Duty to Licensee by Permission —■ Nonsuit.</p> <p>7. Plaintiff’s decedent was killed by the derailment of defendant’s train while he was walking on a wagon road constructed by his employers on defendant’s right of way, between the track and a rocky bluff, in which a cut had been made when the road was built. The wagon road had been made by widening the cut while defendant and its predecessor in interest were operating the railroad. At the point of the accident, which was near a junction of a siding used by defendant, the wagon road had been in frequent and constant use by decedent’s employers for their men and teams for about ten years, and it was also used more or less by the public. Held, that the evidence was sufficient to go to the jury on the question whether decedent was a licensee by invitation, to whom defendant owed the duty of active vigilance to avoid injury while he was using the wagon road for the purpose for which it was built.</p> <p>Negligent Inspection oe Oars — Question eor Jury.</p> <p>8,. In this case deceased was killed by a train of defendant’s cars that jumped the track owing to the breaking of a defective wheel flange. Held, that the testimony was sufficient to take the case to the jury on the question whether the car had been inspected with reasonable care and skill.</p> <p>Presumption oe Negligence Prom the Happening oe an Accident.</p> <p>9. An instruction, in an action against a railroad company for causing the death of a licensee, that negligence cannot be presumed from the mere happening of the accident, yet that it may be from the circumstances of the transaction, if they are such as to cause the jury to believe that the accident would not have happened if reasonable care had been used, is not misleading when followed by an instruction that plaintiff must prove, by positive and affirmative evidence, the want of due care on defendant’s part, and that the injury complained of was the direct result of the want of such care.</p> <p>Duty oe Railroad Companies to Inspect Cars.</p> <p>10. It is the duty of a railroad company to inspect its cars and test them at reasonable periods to ascertain their condition, and where it does make such inspection and finds the cars apparently safe, it cannot be held liable for defects which could not have been discovered by ordinary inspection.</p> <p>Departure in Pleading.</p> <p>11. The question of departure between the complaint and reply is re-examined, and the law as set forth in the original opinion is affirmed.</p> <p>Evidence oe Ownership — Deeds.</p> <p>12. In an action against a railroad company for the negligent killing of a person near its tracks, conveyances tending to show the ownership of the locus in quo in decedent’s employers were proper to go to the jury as color of title on an issue of adverse possession, if for no other reason.</p> <p>Necessity oe Pleading an Estoppel.</p> <p>13. An estoppel must always be pleaded if the case permits it; and after a trial a party will not be heard to insist that certain evidence showed an estoppel, when no estoppel was pleaded.</p> <p>Private Right on Railroad Right oe Way.</p> <p>14. The fact that a railroad has a right of way across certain premises does not necessarily give it the exclusive right on such ground; others may have rights thereon that the road must respect.</p>

From Baker: Robert Eakin, Judge. The defendants, A. A. Houston and wife, on May 31, 1893, executed to. the Home Building & Loan Company, a domestic corporation, their promissory note, whereby they agreed to pay to the company, at the maturity of four shares of the capital stock thereof, of which Houston was the owner, $800, with interest from date until paid at the rate of six per cent, per annum, to secure which they at the same time executed and delivered to said company…

From Multnomah: Alfred F. Sears, Jr., Judge. This is a suit by E. Shannon and others to enjoin the collection of certain street assessments made to defray the cost of improving and repairing East Water Street, between East Oak Street and Hawthorne Avenue, in the City of Portland.

From Multnomah: John B. Cleland, Judge. Suit for an injunction by A. N. King and others against the City of Portland and others to1 enjoin the enforcement of a local assessment for a street improvement, consisting of an elevated roadway extending along- East Yamhill Street, between East Water Street and Union Avenue, in the City of Portland.

From Multnomah: John B. Cleland, Judge. Suit by the Alliance Trust Company, Limited, against Multnomah County and William Frazier, its sheriff, originally instituted to enjoin the sale of real property, and thereafter amended so- as to remove a cloud from the title thereto.

From Wasco: Wm. L. Bradshaw, Judge. Action by C. E. Bayard and Frank Watkins, as administrators of the estate of Perry Watkins, deceased, against the Standard Oil Company to recover damages for injuries resulting in the death of their intestate, alleged to have been caused by placing an unlawful obstruction in a public highway.

From Multnomah: John B. Cleland, Judge. Bill for reformation of a written instrument by A. N. King against C. A. Holbrook, resulting in a decree for defendant, from which plaintiff appeals.

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by J. A. Ellis against William Frazier, as sheriff and ex officio tax collector, to- recover the possession' of a bicycle, or the sum of $io as its value, -in case possession thereof cannot be had, and the further sum of $5 damages for its alleged unlawful seizure and detention.

From Multnomah: Arthur L. Frazier, Judge. Action by John P. Christenson and Daniel J. McMaster, partners as the Christenson-McMaster Machinery Company, against J. R. Nelson and another, commenced October 15, 1898, to recover possession of personal property.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by Barbara Stager against the Troy Laundry Company for injuries received while in the employ of the defendant. From a judgment in favor of plaintiff, defendant appeals.

From Multnomah: John B. Cleland, Judge. Petition by Louis Philip Bolander for an order on Andrew Saling, administrator, to.show cause why he should not deliver to petitioner certain property inventoried as an asset of the estate.

<p>Filing Transcript Before Perfecting Appeal — Practice.</p> <p>1. The proper practice where a transcript has been filed before the appeal has been perfected, is to move to strike the transcript from the files, rather than to ask for a dismissal: Ohemin v. East Portland, 19 Or. 512, applied.</p> <p>Appeal — Waiver of Irregularity by Not Objecting.</p> <p>2. An objection to the filing of a transcript for an irregularity in practice must be made promptly, or it will be considered waived.</p> <p>Appeal — ■ Filing Perfected Undertaking.</p> <p>3. Where appellants have acted in good faith and with fair diligence in their efforts to complete and file a proper undertaking on appeal, they will be permitted to file a perfected undertaking out of time: Wheeler v. Matlock, 29 Or. 64, applied.</p> <p>Rules of Court — Delayed Abstract of Record.</p> <p>4. Where appellant was but two days in default in filing his abstract, as required by Rule 4 (24 Or. 595, 35 Or. 591), when respondent moved to dismiss the appeal, and no injury resulted from the delay, the abstract may be filed within a time to be fixed by the court, especially where the delay was caused by a misunderstanding of the rule: Fleischner v. Bank of McMinnville, 36 Or. 553, applied.</p> <p>Sufficiency of Notice of Mechanic’s Lien.</p> <p>5. A notice of intention to claim a mechanic’s lien which states that “N & Company have, by virtue of a contract with M, a contractor with T, lessee of the building hereinafter described, under a lease with D for the furnishing of material, furnished material to be and which was used in the erection of a” described building, sufficiently shows the name of the person to whom the material was furnished, as required by section 3673 of Hill’s Ann. Laws, since it may be reasonably inferred from what is stated that the material was furnished to M, the contractor: Getty v. Ames, 30 Or. 573, distinguished; Rowland v. Harmon, 24 Or. 529, applied.</p> <p>Evidence of Assignment of Lien.</p> <p>6. An assignment of “our claim against M” for material furnished on a building, made after the filing of the lien and prior to the'commencement of the suit, is sufficient to constitute an assignment of the lien as against the owner; both the assignor and assignee testifying that it was intended as an assignment of the lien, in order that it might be foreclosed in the same suit with the lien of the assignee.</p> <p>Mechanic’s Lien — Sufficiency of Complaint.</p> <p>7. In foreclosing a mechanic’s lien it is not necessary to state in the complaint that the notice of lien contained any statement not required by the statute, and, as the statute (Hill’s Ann. Laws, §3673), does not specify that the notice shall contain any statement about whether the material furnished was actually used, the complaint need not show that the notice contained such a statement: Allen v. Blwert, 29 Or. 428, followed.</p> <p>Posting Notice in Conspicuous Place —• Statutes.</p> <p>8. Section 3672, Hill’s Ann. Laws, providing that certain persons may relieve their property from a lien by posting a certain notice “in some conspicuous place” on such property is not complied with by posting the notice in a little side recess of a building on the land.</p> <p>Use of Material to Support Lien.</p> <p>9. In a suit to foreclose a mechanic’s lien for work done at the request of a tenant of a room in a leased building, and with the knowledge of the lessee, it is immaterial that some of such work was done in a part of the tenant’s room that he had allowed another person to occupy.</p>

From Marion: Geo H. Burnett, Judge. Action by W. E. Mitchell against the Oregon Women’s Flax-Fiber Association, to¡ recover $470.74 for labor and services performed by the plaintiff for the defendant corporation.

From Columbia: Thos. A. McBride, Judge. This is á suit by Joseph Silver against Wm. C. Lee for a decree establishing title in the plaintiff to a tract of land one hundred feet square, in the town of Rainier, and for the cancellation of a deed thereto: from one Mary Ann Watkins to the defendant.

From Douglas: Jas. W. Hamilton, Judge. Action by J. G. Mayes against R. L. Stephens to recover the possession of a tubular boiler, or its value in case possession thereof cannot be secured, and damages for its detention; the plaintiff substantially alleging that he is the owner and was in the possession of the property when it was unlawfully seized by the defendant, who refused to surrender it upon a demand therefor, and that he is entitled to the immediate possession…

From Douglas: H. K. Hanna, Judge. This is a suit by Wm. R. Willis against Andrew M. Crawford to dissolve an alleged partnership and for an accounting.

Action by the City of Portland against Mary Gaston to open a street. From a judgment fixing the amount of damages, defendant appeals. Plaintiff moves to dismiss the appeal.

From Clatsop: Thos. A. McBride, Judge. This is an original suit by Melvin C. George, J. P. Eckler, and W. E. Stewart against M. Nowlan and the sheriff of Clatsop County to impeach and set aside a decree in a suit to foreclose a mortgage, and to enjoin the delivery of a sheriff’s deed to a purchaser thereunder.

From Multnomah: John B. Clelanl, Judge. This is a suit by D. R. Hawkins, a judgment creditor of the Citizens’ Investment Company, an insolvent corporation, to reach and subject to the payment of his judgment unpaid balances on the shares of the capital stock of the company subscribed for by Geo. S. Clark, A. S. Nichols, C. L. Nichols, and W. A. Gordon.

<p>Evidence of Conversion of Logs.</p> <p>1. In an action for the conversion of saw logs, evidence that the logs . in question were rafted from a boom by defendant is sufficient proof of a wrongful taking to be submitted to the jury, when there is also proof that the logs belonged to the plaintiff, and that he had demanded them of the defendant, which demand had been refused.</p> <p>Sufficiency of Evidence of Ownership of Chattel.</p> <p>2. In an action for conversion where plaintiff claimed a special property under a note and mortgage, the production of the mortgage only is sufficient to carry the case to the jury, since the mortgage was secondary evidence that the note was executed and delivered to the plaintiff, and the jury might reasonably infer that he was still the owner thereof.</p> <p>Conversion ■ — • Irrelevant Testimony.</p> <p>3. In an action for the conversion of saw logs, where it was shown that defendant took plaintiff’s logs without permission, evidence that it sometimes happened that rafts in the boom sticks of the defendant were taken to other mills is irrelevant.</p>

From Multnomah : Arthur L. Frazer, Judg'e. Action by Stephen Williamson and others, partners as Balfour, Guthrie & Company, against the North Pacific Lumber Company, a corporation, for reclamation on two cargoes of lumber purchased by the plaintiffs from the defendant, and shipped to' ports on the west coast of South Africa. The defendant is a corporation engaged in the manufacture and sale of lumber at Portland.

From Multnomah; Alfred F. Sears, Jr., Judge. Action by A. M. Osburn against the Guaranty Savings & Loan Association. Judgment for plaintiff in justice’s court. Defendant sued out writ of review to set aside said judgment for insufficient service of summons. From the judgment rendered, the Association appeals.

<p>From Coos: James W. Hamilton, Judge.</p> <p>Action by William Howell against Alfred Johnson. From a judgment in favor of plaintiff, defendant appeals.</p>

From-Union: Robert Eakin, Judge. Tliis is an action by Thos. H. Crawford against Hutchinson Brothers upon an account stated. The facts are that some time prior to' December 14, 1899, the plaintiff, a practicing attorney at Union, had been retained and employed in his professional capacity by the defendants, who reside in the same town.

From Benton: Jas. W. Hamilton, Judge. Suit by J. R. Smith and others against M. W. Wilkins and others to- foreclose sundry mechanics’ liens. This is the second appeal. See Smith v. Wilkins, 31 Or. 121 (51 Pac. 438).

From Jackson: Hiero K. Hanna, Judge. This is a suit by the Oregon & California Railroad Company and another against Jackson County, Oregon, and another to- enjoin the collection of certain taxes attempted to be levied upon the roadbed and certain lands described in the land grant of the Oregon & California Railroad Company.