Volume 43 — Oregon Reports

<p>Action — Effect of EatriTABLE Cross-Bill and Decree Thereon.</p> <p>Under B. & C. Comp. § 391, providing that in an action at law, where defendant is entitled to equitable relief, he may, on answering, file a complaintin equity, which shall stay the proceedings at law, and the case shall thereafter proceed as in equity, when such proceedings may be enjoined or allowed to proceed, the equity court does not obtain jurisdiction over the original action, but it remains simply in abeyance until the equity suit is decided, when it is either enjoined or released, and as to this latter alternative, the absence of a restraining clause in the decree is practically a permission to continue the original proceeding at law.</p>

<p>Right of action by Parent for Wrongful Death of Minor.</p> <p>1. The right, of action for causing the death of a minor child, conferred by Section 34, B. & O. Comp., on the parents of the deceased, is not exclusive of the right of the personal representative of a deceased minor to sue for causing the death under section 381: Putman v. Southern Pae. Co. 21 Or. 230, 239, distinguished.</p> <p>Evidence of Contributory Negligence — Question for Jury.</p> <p>2. The evidence in this case on behalf of plaintiff was sufficient to carry the caseto the jury on the question of negligence, and its weight is exclusively for the jury’s consideration.</p> <p>Negligence — Care Required of Children — Question for Jury.</p> <p>3. Children of tender years are not held to the same degree of care in avoiding danger as adults, and whether a young child was guilty of contributory negligence in a given case is a proper question for the j ury to decide, having in mind the age and development of the child and the conditions surrounding the occurrence : Blackburn v. Southern Pao. Co. 34 Or. 215, distinguished.</p> <p>Accident at Crossing — Instruction as to Negligence of Company.</p> <p>4. When cars are being backed along or across a public street frequented by pedestrians, and the engineer is so situated that he cannot always see the track and adjacent space, it is the duty of the railroad company to provide a lookout man, either on the front of the nearest approaching car or at the crossing, to give warnings, and a failure so to do is negligence.</p>

From Union : Robert Eakin, Judge. Defendant R. W. Deal was tried upon an indictment for the crime of larceny of a gelding, and, being convicted, appeals from the judgment ensuing. He interposed two pleas, viz., not guilty, and former conviction for the same offense.

From Clatsop: Thomas A. McBride, Judge. This is an action by Ella Scott, as administratrix of the estate of W. M. Scott, deceased, to recover damages for his death, which occurred January 12, 1901, while in the employ of the Astoria & Columbia River Railroad Company as a locomotive engineer, and is alleged to have been caused by its negligence in constructing its railroad too near a hillside, without adopting any means to prevent a slide, and in not properly watching its…

<p>Information — Larceny by Bailee — Surplusage—Duplicity.</p> <p>1. Among the general rules recognized in this state, for construing indictments and informations are, that allegations not necessarily descriptive of the offense may be rejected as surplusage, if the charge is complete without them, and that, where several acts are enumerated alternatively, the doing of each one being prohibited under a given penalty, they may be charged conjunctively as one offense, when not repugnant to each other.</p> <p>Both these rules are thus applied in this case: Hill’s Ann. Laws, § 1771, provides that any person being a bailee, who embezzles or converts to his own use, or fails, neglects or refuses to deliver, keep, or account for, property placed in his care according to his trust, shall be guilty of larceny. Section 1273 requires that indictments must charge but one offense, and in one form only. Held, that an information alleging that defendant, being a bailee of wheat for hire “did * * fail, neglect and refuse to keep or account for said wheat according to the nature of his trust,” by stealing, embezzling and converting the same to his own use, does not charge more than one crime by the use of the word “or”, for the quoted words (which include the “or”) may be omitted without impairing the charge of larceny; and the remainder of the information charges defendant with “taking, stealing and carrying away, and embezzling and converting said wheat,” which is a permissible form of charging a violation of a statute disjunctively worded.</p> <p>Information — Degrees of Larceny — Surplusage.</p> <p>2. Even if an information does charge several offenses, a conviction of any one of them should be sustained, if they are all of the same class and differ only in degree.</p> <p>Larceny by Warehouseman —Alleging Payment of Charges.</p> <p>3. An information against a warehouseman for larceny by stealing and converting property deposited with him need not allege a payment or tender of the storage charges, for the gist of the offense is not a failure to return the deposited property on demand, but an unlawful conversion.</p> <p>Larceny by Bailee —Statutes.</p> <p>4. A warehouseman who gives to a depositor receipts not in the form prescribed by Hill’s Ann. Laws, gg 4201-4207, regulating warehousemen, may be prosecuted for a conversion of the bailed property under section 1771, defining and punishing larceny by bailee, instead of under the special provisions regulating warehousemen.</p> <p>Change of Venue —Abuse of Discretion.</p> <p>5. The right to change the venue of a trial is one confided by statute to the discretion of the trial judge, to be carefully exercised to the end that all interested parties may be justly treated; and in the present instance it does not appear that the trial judge abused the discretion reposed in him.</p> <p>Criminal Intent as an Element of Larceny.</p> <p>6. While it is a general rule that the state must prove a criminal intent in all cases of felony, it is not necessary to prove it by direct testimony, the jury being permitted, upon proof of the overt act, to deduce the intent from a consideration of the surrounding circumstances.</p> <p>Warehouse Contract — Sale — Bailment.</p> <p>7. A placing of property in a warehouse under an agreement to pay storage, but with the expectation of selling it to the best purchaser, is a bailment and not a sale, though the depositor was willing to take the market price in cash rather than the property, if the warehouseman should prefer that method of settlement upon a demand being made for the property.</p> <p>Remarks by Court—</p> <p>8. Statements made by a trial judge during an argument by counsel on a proposition of law, illustrating a hypothetical ease, and accompanied by such a statement as, “ I think that is the law; I do not intimate that the defendant did any of those things, that is for the jury to determine,” is not an invasion of the province of the jury, oran expression of opinion as to the facts in issue, or the weight of evidence: Slate v. Lucas, 21 Or. 168, distinguished.</p> <p>Example op Proper Cross-Examination—</p> <p>9. A witness having testified that the name of a stated person had been signed to certain papers by some of his employés, it is within the limits of proper cross-examination to ask the witness if such employes did not have authority to sign the name of their employer as they had done.</p>

<p>Injuries by Carrier —Proofs and Allegations as to Damages.</p> <p>1. Under the rule that whenever the damages sustained do not necessarily arise from the act complained of, they must be specifically designated, a passenger suing for injuries sustained in a railway accident may show that one of his knees was skinned, his hip bruised, that he had pains in the neck, and that his legs would draw and cramp, under allegations of having been thrown down in the car, and bruised on the leg, and of having been wrenched and sprained in the back, whereby a severe contusion of the muscles and nerves resulted.</p> <p>Damages —Allegations and Proofs — Railway Spine.</p> <p>2. Under a complaint by a passenger for injuries, alleging that he was violently thrown down and greatly inj ured, being bruised on his leg, and his back being wrenched and sprained, whereby a severe contusion of the muscles and nerves resulted, and that by reason of such injuries he became sick and unable to perform labor, and his health was greatly impaired, and he was permanently disabled, proof of traumatic neurosis, or “railway spine,” as it is sometimes called, resulting from concussion, or the shock in consequence thereof, or from fright, is inadmissible.</p> <p>Evidence — Prejudicial Error.</p> <p>3. In a suit by a passenger for inj uries in which proof of traumatic neurosis, resulting from concussion, or consequent shock, or from fright, was inadmissible under plaintiff’s complaint, plaintiffs expert witness testified that he found no injury of the spine itself, but only of the muscles outside. After detailing plaintiff’s debililated and nervous condition, and asserting that a number of things might have produced it, he was asked whether, if plaintiff had received a severe injury or sprain of the back, his condition would he the outcome, and answered that, if the sprain, or wrench, or contusion was sufficient, it would. He was then asked if there was a disease known as “railway spine,” and the cause of it, and his answer showed that it might be produced by actual injury, together with fright and shock, or that it might be caused by a nervous shock and fright. He was then asked, “ You say that you found him laboring under a nervous state — that is, his nervous system was shocked ?” to which he answered, “ His nervous system is very irritable and weakened.” Another expert was asked whether a person thrown down in a wreck might receive a jar or shock that would injure his nervous system or spinal cord, hut which would not at first appear to he severe, and might continue for some time before becoming manifest, and answered that he might. Held, that the admission of the evidence was prejudicial error, notwithstanding an instruction that damages must he limited to such as might naturally be attributable to the injuries alleged.</p> <p>Expert Testimony Must be Based on the Evidence.</p> <p>4. Hypothetical questions to expert witnesses must be based on facts previously testified to, of which rule this case affords an example: A passenger suing for injuries testified that the collision threw him into a corner of the car, where lie struck something and fell on the floor; that he was thrown down pretty hard, and was hurt in the hack, and had a sharp pain there after falling. Expert witnesses for plaintiff testified that they discovered no evidence of injury to his spine, except the inference from his nervous condition. Held, that a hypothetical question as to whether a person might receive, by being violently thrown down, or by any severe jar or shock in a wreck, a shock that would injure his nervous system and spinal cord, was unsupported in the evidence.</p>

From Grant: Morton D. Clifford, Judge. This is an action by V. C. Belknap against Thomas and Frances Whitmire to recover for professional services alleged to have been rendered by plaintiff, and for goods, wares, and merchandise alleged to have been sold and delivered by his assignors, to defendants and their mother.

From Multnomah: Alfred F. Sears, Jr., Judge. The defendant, Bradley F. Durphy, was convicted of the crime of polygamy upon an information, the charging part of which is as follows: “The said Bradley F. Durphy, on the 15th day of March, A. D. 1874, in the County of Plymouth, State of Massachusetts, did marry one S. S. Bosworth, and her the said S. S. Bosworth then had for his wife, and the said Bradley F. Durphy, being so married as aforesaid to the said S. S. Bosworth,…

From Umatilla: W. R. Ellis, Judge. This is a suit by J. A. Horseman and Eugene Corley against Chas. H. Horseman.

<p>Criminal Law — Information—Need of Preliminary Examination.</p> <p>1. Section 1600 of B. & C. Comp., providing that “The defendant must in all cases be taken before the magistrate without delay,” is not mandatoi'y, but should be considered in connection with sections 1258 and 1260, providing for the filing of informations by district attorneys on or before the first day of the next regular term of the circuit court before which he is required to appear in cases where the defendant has been held to answer, and when so read it is directory only, for section 1260 permits the district attorney to charge a person with the commission of a crime without a preliminary examination before a magistrate.</p> <p>Indorsement of Information by District Attorney.</p> <p>2. The district attorney alone is responsible for the filing of an information, and the fact that it is filed sufficiently indicates his conclusion as to whether an offense has been committed, without any indorsement such as is required where an indictment is returned by agrandjury.</p> <p>Idem.</p> <p>3. An information filed by a district attorney indorsed “A true information,” followed by the printed words “Geo. E. Chamberlain, District Attorney,” is sufficiently indorsed, for by filing it the printed signature was adopted by the district attorney as his own.</p> <p>Indorsing- Names of Witnesses on Information.</p> <p>4. The provision of Section 1262, B. & C. Comp., that the names of all witnesses examined on oath or affirmation by the district attorney in support of an information must be added thereto before it is filed, or the testimony of such witnesses cannot be heard, is not a requirement that the accused shall be furnished with the names of intended witnesses who were examined after the filing of the information, nor a prohibition against calling other witnesses than those whose names were added to the information.</p>

<p>Necessary Elements oe Conversion.</p> <p>1. To constitute a conversion it must appear that the person charged has exercised some act of dominion or control over the property of another inconsistent with the latter’s rights, or has aided or assisted some one else to do so.</p> <p>Accepting Proceeds of Another’s Property Not a Conversion.</p> <p>2. The acceptance by a creditor of money in payment of a debt, not knowing that it did not belong to the debtor, is not a conversion by such creditor of the money, though it might be otherwise if he had received possession of property that the debtor did not own.</p> <p>Passing Title by Delivering Bill of Lading — Parol Evidence.</p> <p>8. Although a bill of lading represents the property for which it was given, and title to such property, when so intended by the parties, may pass by indorsement or delivery of the bill, neither indorsement nor delivery has any such effect in passing title, except as the result of contract between the parties, and the real transaction may be shown by parol.</p> <p>Example of Conduct Not Constituting a Conversion.</p> <p>4. A bank cannot be held liable for conversion by a flouring mill company in manufacturing flour from wheat belonging to plain till', and selling the same, by receiving in good faith, and without knowledge of plaintiff’s rights, a draft drawn on the purchaser for collection, together with a bill of lading for the flour, and after making collection, disbursing the proceeds.</p>

<p>Criminal Law — Res Gestíe.</p> <p>1. A declaration by a person charged with a crime, made after his arrest and when sufficient time had elapsed to formulate a plan of defense, is not part of the res gestee, since it is not so intimately connected with the principal event, either in time or character, as to explain or illustrate it.</p> <p>Rule as to Error in Refusing Instructions.</p> <p>2. A court may properly refuse requested instructions to a jury where they are not correct expositions of the law as applied to the theory adopted by the party presenting them, and the court does not thereby refuse to present the theory of the party desiring the instructions.</p> <p>Homicide — Self-Defense—Imminent Danger — Threats.</p> <p>3. The right of self-defense justifying a homicide rests on the necessity of protection from a reasonably apprehended imminent danger, and must be based on some overt act of hostility, mere threats not being sufficient.</p> <p>Self-Defense — Danger Must Be Imminent.</p> <p>4. An apprehended bodily danger that will justify a resort to force, and an assertion of the right of self-defense, must be imminent, or apparently likely to at once be experienced.</p> <p>Idem.</p> <p>5. 'To find a person guiltless of homicide in any degree on the ground of self-defense, the jury must find, not only that accused acted under fear of imminent death or great bodily harm, but that there was actually reasonable ground for such fear on his part.</p> <p>Idem.</p> <p>6. A homicide cannot be justified on the ground of self-defense unless it is made to appear that accused had been put in imminent danger by another, and that the killing was done to prevent the apparent commission of a felony by that other on accused.</p> <p>Impeaching Verdict by Affidavit of Juror.</p> <p>7. Affidavits or statements of jurors will not be received to'impeach their verdict.</p>

<p>Evidence of Transfer in Trust.</p> <p>1. The evidence satisfies the court thafc the transfer questioned in this suit was made to the defendant as a trustee for plaintiff*.</p> <p>Parol Evidence of Trust in Personal Property — Varying Writing.</p> <p>2. Parol evidence is competent to show that a transfer of personal property by a bill of sale absolute in form was in trust for the assignor.</p> <p>Accounting — Interest on Trust Funds.</p> <p>3. A trustee is not chargeable with interest on trust funds in his hands unless he has been negligent or unfaithful to his duty.</p>

<p>Criminal Law — Identification of Photograph as Hearsay.</p> <p>1. Testimony that a prosecuting witness recognized a photograph of defendant as that of the person whom he desired to complain against is hearsay and inadmissible.</p> <p>Hearsay Evidence — Harmless Error.</p> <p>2. Where a witness was erroneously permitted to testify that a prosecutor recognized defendant’s photograph at the police station as a photograph of the person who he claimed had committed a crime, and there was subsequent testimony tending to show that defendant’s photograph was in the rogues’ gallery because of his having committed other crimes, the error was not harmless.</p> <p>Evidence of Other and Disconnected Crimes.</p> <p>3. It is reversible error to admit in a criminal case evidence that defendant had committed other crimes in no way connected with the one charged.</p> <p>Error Made Harmless by Other Evidence.</p> <p>4. Error in admitting detailed evidence of hearsay matters is not rendered harmless by evidence of the same matter given without objection, but in a cursory way as an incident of a greater story and without details or emphasis.</p>

<p>Prom Union : Robert Eakin, Judge.</p> <p>Suit by J. L. Slater against the La Grande Light & Power Company and others to foreclose a lien. The facts are that after plaintiff had commenced to furnish the material and to construct a dam in the Grande Ronde River for the defendant under an agreement that he was to receive therefor the sum of $6,300, the plan and specifications were modified, increasing, in some particulars, the labor and material, diminishing the size of the dam, and relieving the plaintiff from filling a crib with rock, it being understood that he was to be paid the reasonable value of the extra labor and material necessitated by the change, and that defendant should be credited with the cost of filling a crib of the dimensions specified in the contract, and also with the value of the material saved by the modifications of the plan. The dam having been completed January 12, 1901, the plaintiff, about three days thereafter, presented a bill therefor,which, omitting details, is as follows:</p> <p>To contract price of dam__________________________$ 6,300 00</p> <p>To extras: 33,024 ft. lumber @ $15 per M__________ 495 00</p> <p>876 feet $10 per M-------------------- 8 76</p> <p>Labor_________________________________ 153 50</p> <p>Drift bolts_____________________________ 18 75</p> <p>Driving piling------------------------- • 80 00</p> <p>Total______________________________$ 7,056 01</p> <p>By 434 cn. yds. stone placed in crib @ 50c per yd----$ 217 00</p> <p>10 cu. yds. placed in apron (a) 80c per yd_________ 8 00</p> <p>Lumber saved by change of plan, 4,916 feet, (a) $15 ' per M________________________________________ 73 74</p> <p>Cash received__________________________________ 5,500 00</p> <p>Balance due___________________________________ 1,257 27</p> <p>Total $ 7,056 01</p> <p>The defendant’s agents being dissatisfied with the account rendered, it was orally agreed that all matters outside the original contract should be submitted to arbitrators, one to be chosen by plaintiff, another by the defendant, and, if they could not agree, a third should be selected. In pursuance of such agreement, plaintiff chose C. R. Thornton, and the defendant E. J, Stuart, and, upon their disagreement, J. S. Scranton was appointed, who, in a few days thereafter, met with the others. Thornton soon thereafter, and without plaintiff’s knowledge, withdrew, whereupon Stuart and Scranton signed a memorandum, in which they found that there was due from the defendant to the plaintiff the sum of $1,136.16, which he refused to accept, and on March 6, 1901, filed a claim of lien to secure the sum of $1,360.62, and instituted this suit for its foreclosure. The answer admits that the dam was constructed, but denies that the sums demanded for extra labor and material are reasonable, sets up the alleged award, and avers a tender to plaintiff of the sum found by the arbitrators to be due him, which it deposited for him with the clerk of the court. For a further defense the original contract is set out, and it is. alleged that under its terms plaintiff was required to drive sheet piling in a specified manner, but that he performed that part of his agreement so negligently that defendant was damaged thereby in the sum of $250. The reply admits the agreement to arbitrate the matters in dispute, avers that plaintiff revoked the submission before any award was published, and denies the other material allegations of new matter in the answer. The cause, being at issue, was referred to H. R. Hanna, who took and reported the testimony, from which the court found the facts, in effect, as hereinbefore stated, and, having concluded, as a matter of law, that the submission and award were valid and binding upon the parties, rendered a decree dismissing the suit, and plaintiff appeals.</p> <p>The award is void because the third arbitrator did not hear the statements of the parties and took no evidence in the matter and did not notify either of the parties to be present and make a statement or produce evidence, and the plaintiff was not present and had no' opportunity to make any statement or produce evidence: Falconer v. Montgomery, 4 U. S. (4 Dall.) 232; Parsons v. Pettit, 4 U. S. (4 Dall.) 27; Day v. Hammond, 57 N. Y. 479 (15 Am. Rep. 522); Haven v. Winnisimmet Co. 11 Allen, 377 (87 Am. Dec. 723); Ingraham v. Whitman, 75 Ill. 30; Elmendorf v. Harris, 23 Wend. 628 (35 Am. Dec. 587); Bulson v. Lohnes, 29 N.Y. 291; Daniel v. Daniel, 9 Dana, 93; Frissell v. Fickes, 27 Mo. 557; Walker v. Walker, 28 Ga. 140; Small v. Courtney, 1 Brev. (S. Car.) 205; Coon v. Coon, 95 Va. 434 (64 Am. St. Rep. 804); 3 Cyc. 640.</p> <p>Unless a parol submission to arbitration is unconditionally revoked before the award is made, it is binding upon the parties even where one of the parties refused to reduce the submission to writing: Dilles v. Hammond, 86 Ind. 563; Notes in 2 Am. & Eng. Ency. Law (2 ed.), p. 597, and cases there cited.</p> <p>After a question is referred to arbitrators, and they have acted under the reference, one of the parties cannot put an end to the contract and revoke the authority of the arbitrators by an expression of a determination not to stand by the agreement. Such declarations are nugatory unless the party expressly revokes the authority of the arbitrator: Brown v. Welcher, 1 Cold. (Tenn.) 197.</p> <p>After an award is once made the submission cannot be revoked by either without the other’s consent: Union Ins. Co. v. Central Trust Co. 13 N. Y. Supp. 17 ; 2 Am. & Eng. Ency. Law (2 ed.), p. 597 ; Toby v. Preston, 3 Story, 800.</p>

<p>Municipal Control Over Sales of Liquors on Sunday.</p> <p>1. A municipal power to “regulate, restrain and prohibit” the sale of liquors necessarily includes the power to make and enforce any reasonable rules in reference thereto, of which an inhibition of Sunday sales is an instance.</p> <p>Municipal Control Over Liquor Selling—Statutes.</p> <p>2. A municipal power to “regulate, restrain and prohibit” the sale of liquors, provided that each applicant for a license shall present a bond of a certain amount and with certain conditions, is not limited by the terms of the proviso, except as to the conditions under which a license may be granted,—in other words, the power conferred may be exercised otherwise than by licensing.</p> <p>Information—Duplicity — Conjunctive Allegation. *</p> <p>3. Where a statute or a city ordinance prohibits the doing disjunctively of any of several stated acts, the information may charge the commission of all the acts conjunctively.</p> <p>Constitutional Right to a Jury Trial.</p> <p>4. The right of trial before a jury secured by constitutional provisions† is the right as it existed when such provisions were adopted, and does not include minor offences before justices and police magistrates, such as violations of city ordinances regulating the sales of liquors.</p> <p>Appeal—Presumption Against Error.</p> <p>5. Where the transcript does not contain all the record necessary to the determination of a disputed question, it will be presumed that there was no error: for example, in the absence of the city ordinances it will be presumed, in favor of the judgment below, that there was an ordinance authorizing the court to tax against an accused person the costs of a successful liquor prosecution.</p>

<p>Contract Between Husband and Wife — Dower and Curtesy.</p> <p>1. A contract between a husband and his wife providing for the mutual execution of papers so that certain land owned in fee by him should become “exclusively” his, and land owned in fee by her should become “exclusively” hers, is one in relation to dower and curtesy, and is void under B. & C. Comp, g 5234, providing that, when property is owned by either husband or wife, the other has no interest therein which can be the subject of contract between them.</p> <p>Entire or Severable Contract* — Specific Performance.</p> <p>2. A contract between a husband and his wife by which, on payment to him by her of a stated sum of money, they were to divide their respective lands so that neither should thereafter have any interest or right in any land of the other is entire and indivisible. Such a contract cannot be enforced in any particular, since it is indivisible, and is void as to the interests to be transferred.</p>

<p>Trial — Cross-Examination.</p> <p>1. On a prosecution for a felonious assault, the prosecuting witness having testified on cross-examination that he had had some difficulty with defendant over some mining claims, it was not error to exclude a question as to whether he had made some relocations whereby the defendant had been left out, for even if he had been unlawfully excluded from some rights, it was no justification for the assault, and the answer might have tended to confuse the minds of the jurymen.</p> <p>Statements Subsequently Made Not Part of the Res Gestje.</p> <p>2. Statements made by a prosecuting witness after the assault in question had occurred, and after the witness had been removed from the scene, are not competent evidence as part of the res gestee.</p> <p>Cross-Examination — Bias or Prejudice.</p> <p>3. On a prosecution for a felonious assault, statements made by the prosecuting witness afterward as to what he would have done at the time had he been armed with a gun, are not. competent, since they do not tend to explain the occurrence, or to show the motives or feelings of the witness.</p> <p>Foundation for Impeachment —Cross-Examination.</p> <p>I. Though a prosecuting witness had testified in chief that he was not armed with a pocketknife, it was not error to exclude a question asked him on cross-examination as to whether he had afterward made statements as to what he would have done had he had a gun instead of a knife, as such question was not broad enough to lay a foundation for his impeachment on that subject.</p> <p>Instruction on Right of Self-Defense.</p> <p>5. On a prosecution for felonious assault the evidence showed that defendant went out of his way and began to strike the prosecuting witness, calling him vile names, and drew his pistol. The latter arose, laid aside a knife with which he had been whittling, and, reaching for the weapon, followed defendant, who stepped backward and fired. Held, that it was not error to instruct that one cannot claim the benefit of the law of self-defense after lie has intentionally put himself where he knows or believes be will have to invoke its aid; that circumstances j ustifying assault must be such as to render it unavoidable; and that, if defendant could have avoided any conflict, it was his duty to do so, and so render a resort to the law of self-defense unnecessary.</p>

<p>Filing, Papees — Payment op Fee — Statutes.</p> <p>1. The general rule that a paper is filed when it has been delivered to the proper officer and received to be kept in the official records, does not apply where the payment of a stated fee is made a prerequisite — in the latter ease the paper is not filed until the fee has been paid. Where a statute requires that a transcript, for example, shall be filed with the clerk of the appellate court by a certain time after perfecting the appeal, and that the appellant, on filing the transcript, shall pay to the clerk a stated fee in advance, the transcript is not filed until the fee has been paid, notwithstanding its delivery into the possession of the officer.</p> <p>Appeal —Motion to Apeieji oe Dismiss.</p> <p>2. Under B. & O. Comp, g 653, requiring the appellant to file a transcript, after which the appellate court shall have j urisdiction, and not otherwise, and providing that if the transcript is not filed within the time fixed, the appeal shall be deemed abandoned, a failure to file a transcript in time maybe taken advantage of by motion to dismiss theappeal, and a motion.to affirm the judgment is not the exclusive remedy.</p>

<p>From Baker : Robert Eakin, Judge.</p> <p>Manny Howard, jointly informed against with Alexander Meldrum, was convicted of larceny, and appeals.</p>

<p>Sheriffs—Embezzlement of Taxes — Rolls as Evidence—Estoppel.</p> <p>1. In a prosecution against a public tax collector for embezzling taxes the rolls delivered to him by the proper officials are competent evidence to show the amounts collected, though such rolls may not have been properly certified, or have had attached the statutory warrants, for the officer is estopped by his own conduct to deny that the rolls were enforceable.</p> <p>Acts of Deputies —Presumption as to Disposal of Taxes.</p> <p>2. Where it appears that deputy tax collectors placed their collections with the other funds of the office, it will be presumed, even in a criminal case for embezzlement, that such funds came into the hands of the principal, and in a settlement of his accounts he should be charged with such sums.</p> <p>Presumption as to Money Paid fob. Taxes by Check.</p> <p>3. Under a statute * requiring taxes to be paid in current gold and silver coin of the United States, and requiring tax collectors to give receipts for taxes so paid “as cash”, † it will be presumed, in the absence of a contrary showing, that the tax collector cashed drafts, checks, or money orders which he received for taxes in lieu of coin, and hence such drafts, etc., are properly chargeable to him in a prosecution for embezzling moneys collected for taxes.</p> <p>Competency of Evidence of Embezzlement of Taxes.</p> <p>4. Under Hill’s Ann. Laws, § 2797, requiring the sheriff to settle with the county treasurer once in every thirty days, and to pay over to that officer all moneys received for taxes, and the treasurer to give the sheriff duplicate receipts for the money paid over, one of which is required to be filed with the county clerk, in a prosecution against a sheriff for embezzling taxes collected, the sheriff’s statements on which he had made settlements with the county treasurer, the treasurer’s books, and the duplicate receipts so filed, are competent evidence of the amount accounted for by the sheriff, and are prima facie sufficient for that purpose.</p> <p>Embezzlement of Lawful Money —Necessary Proof.</p> <p>5. Under an information charging embezzlement of lawful money of the United States, it must be proved that the money stolen was of the kind named.</p> <p>Embezzlement of Lawful Money — Sufficiency of Proof.</p> <p>6. Where a sheriff was authorized to receive in payment of taxes only current gold and silver coin of the United States and certain county orders, and in a prosecution against him for embezzlement of money so received it was proved that he collected as taxes while in office, and paid over to the county treasurer, certain sums, leaving a balance unaccounted for, and that he and his deputies received for taxes gold, silver, and treasury notes, national bank notes, silver certificates, checks, money orders, and county warrants, the evidence sufficiently supported an allegation in the indictment that the money converted by defendant was “lawful money of the United States,” though the particular coins converted were not indentified, for, in such cases, it is not necessary to show the character of the money converted, since presumably public officers receive only lawful money.</p> <p>Statutes Relating to Embezzlement — Construction.</p> <p>7. Section 1772, Hill’s Ann. Laws, is a general statute for the punishment of persons who may receive public money and fail to account therefor, while section 1995 relates only to tax collectors who fail to perform certain stated duties; hence a sheriff who has been convicted of converting to his own use money received by him for taxes is punishable under section 1772.</p>

<p>Motion to Dismiss or. Affirm — Rules of Court.</p> <p>1. A motion to dismiss an appeal, or to affirm the j udgment because of failure to file briefs, as required by Rule 14, need nofc be considerd where an examination of the record shows that the judgment should be affirmed on the merits.</p> <p>Instructions on Irrelevant Issues Not Proper.</p> <p>2. Abstract propositions of law should not be stated to a jury under the guise of instructions, but the propositions should be applied to thefacts in hand; thus, in an action for the price of sundry chattels, where a rescission was not pleaded, the court properly refused to give requested instructions staling merely the law on the right of rescission.</p> <p>Rescission of Contract — Co instruction of Pleading.</p> <p>3. Where an action was brought for the price of sundry sheep, an answer that the animals were bought for mutton, as the plaintiff well knew, that they were diseased and unfit for eating, that when defendant discovered their condition, some time after delivery, “he notified plaintiff that he could not use them, and that he held them subject to plaintiff’s orders,” is not a plea of rescission and return, for it does not state that defendant disaffirmed the contract, nor that he returned or offered to return the property, nor does it show any reason for not doing so. *</p> <p>Sales — Damages for Breach.</p> <p>4. In cases of sales where the articles delivered are not of the kind or quality required by the contract, but the buyer elects to retain the property rather than rescind the sale, he is liable for the purchase price less such damages as he may have sustained by the breach of the contract: for instance, where a seller of sheep delivered diseased animals, which the buyer retained without rescinding or offering to rescind, the buyer was entitled, in an action for the price of the sheep, to set off expense which he had been compelled to incur in caring for the sheep because of their diseased condition.</p>

<p>From Josephine : Hiero K. Hanna, Judge.</p> <p>Thos. J. Gibson appeals from a conviction of murder.</p>

From Grant: Morton D. Clifford, Judge. Suit by D. G. Overholt, individually and as administrator of the partnership estate of John Muldrick, deceased, against David D. Dietz.

<p>Partition — What Decree is Appealable — Statutes.</p> <p>1. Sections 441, 442, and 444, B. & O. Comp, contemplate an interlocutory decree defining the rights of the respective parties in the land of which partition is desired, and deciding whether it shall be divided or sold, to be followed by a final decree upon a consideration of the report of the referees, and this last is the final order contemplated by Section 547, B. & C. Comp, that must be appealed from, though on the appeal intermediate orders involving the merits, and necessarily affecting the decree, may be reviewed: Walker v. Goldsmith, 14 Or. 125, questioned and explained.</p> <p>Partition —Necessity of Possession by Plaintiff.</p> <p>2. Under Section 435, B. & C. Comp, the plaintiff in a partition suit must allege possession of the property to be divided as a tenant in common with the defendants, or the pleading is demurrable, unless the suit is brought by one or more tenants in common of a vested remainder or reversion.</p> <p>Partition — Insufficient allegation of Possession.</p> <p>3. A complaint in partition alleging that plaintiff and defendants are tenants in common of the property sought to be partitioned does not plead that plaintiff is in possession, for there may be an ownership as a tenant in common without possession.</p> <p>Curing Defective Complaint by Answering.</p> <p>4. The defect in the complaint in a partition suit arising from a failure to aver that the parties were in possession of the property is not cured by an allegation in the answer that the lands described in the complaint are a part of the lands involved in a former partition suit between the parties, and that the ownership was there determined, where plaintiff in his reply denies this allegation, and on the trial offers evidence showing that the lands involved in the former suit were not the lands embraced in the complaint.</p>

<p>Change of Ventje — Abuse of Discretion.</p> <p>1. The determination of an application for a change of venue is a matter for the exercise of discretion by the trial court, and its decision will not be reversed unless it appears that an injustice has resulted. In the present instance it is clear that the refusal to change the place of trial was not error.</p> <p>Competency of Juror — Discretion.</p> <p>2. On a challenge of a juror for actual bias the determination of his competency is largely discretionary with the trial judge, reviewable for abuse.</p> <p>Competency of Jurors — Preconceived Opinion —Bias.</p> <p>3. Where the opinions of jurors in a criminal case were based on mere hearsay statements, none of the jurors having talked with any person assuming to give the facts of his own knowledge, and the j urors asserted that their opinions formed were not such as they would be willing to act on at the present time, and that they considered themselves competent to try the case on the testimony, the denial of a challenge for actual bias was not error, though the j urors stated that it would require strong evidence to remove their opinions.</p> <p>Error Made Harmless by Subsequent Conduct.</p> <p>4. Error, if any, in sustaining an objection to a question asked of a juror as to whether any prejudice existed in his mind against the defendant was rendered harmless where almost the identical question was subsequently asked, and answered in the negative, without objection.</p> <p>Reducing Instructions to Writing —Technical Error.</p> <p>5. In Oregon the rule requiring a trial judge to reduce his charge to writing, if requested to do so, and to file it with the clerk (B. & C. Comp. § 132, subd. 6), which is generally held to be mandatory, is modified by Section 1484, B. & O. Comp,, providing that the supreme court shall give judgment without regard to technical errors which do not aflfect the substantial rights of the parties, so that the failure of atrial judge to write out certain passages from a printed book will not require a reversal, where the extracts were read without comment, and were substantially the same as the written instructions. The failure of the judge to write down the entire charge and file it was a technical but not a material error, it being manifest that the passages read did not modify or change the written charge.</p> <p>Proceedings Before Trial — Place of Confinement.</p> <p>6. Where during defendant’s incarceration for homicide before his trial threats of lynching were made, an order directing defendant’s removal to another place of confinement for his protection was not an error of which he could complain.</p>

<p>■Writ of Review — Who May Petition For — Highways.</p> <p>1. Under B. & C. Comp, g 595, which authorizes any party to a proceeding before an inferior court to have its decision reviewed, a person stated to be a resident in the vicinity of a certain road and to have been a remonstrator against a change in the location thereof is a party to the proceeding, and may petition for the issuance of a writ of review.</p> <p>Count* as Defendant in Review of Highway Proceedings.</p> <p>2. The county being the ultimate responsible party in all road matters, is the proper party defendant in a proceeding to review the action of its county court in laying out, altering or vacating a highway.</p> <p>Highways — To Whom Writ of Review is Directed.</p> <p>3. Under B. & C. Comp, g 599, providing that a writ of review shall be directed to the court, officer or tribunal whose decision or determination is sought to be reviewed, or to the clerk or other person having custody of its records or proceedings, a writ to review the action of the county court in vacating a road is properly directed to the county clerk, whose duty it is, under B. & C. Comp, g 1008, to keep the records, files, and other books and papers appertaining to said court.</p> <p>Necessity of Petition in Proceeding to Vacate Highway.</p> <p>4. Section 912, B. & C. Comp., authorizing county courts to vacate county roads in the manner provided by law, must be considered in connection with section 4783, providing the manner of publishing the petition for vacating the road, and the conclusion then necessarily follows that an application to vacate must be by-petition.</p> <p>Petition for Writ — Specification of — ErroRvS.</p> <p>5. Under B. & O. Comp. ¿596, providing that a petition for a writ of review must describe with sufficient certainty the decision of the inferior court and the errors alleged to have been committed therein, a petition for a review of the action of a county court in vacating a road, alleging that the road described in the notice of application for vacation posted in the courthouse was not the same road specified in the petition for vacation, is a sufficient averment of fact to support the deduction that the county court erred in not dismissing the proceedings to vacate the road for want, of jurisdiction, and hence is sufficient.</p> <p>Vacating Highway — Variance Between Petition and Notice.</p> <p>6. In view of Section 4783, B. & O. Comp., requiring that notice be given of the hearing of the application for vacating a county road, a variance between the petition and the notice in stating the township in which the road to be vacated ends is fatal to the jurisdiction of the county court.</p>

<p>Indefinite Complaint — Effect of Answeb.</p> <p>1. Vague and Indefinite complaints are sometimes sufficient after answer, .though subject to a motion to make more certain. This is such a case: A widow brought an action to recover on a note found among her husband’s private papers, but on its face payable to another, alleging that the original payee had transferred the note, and that she was then the owner and holder thereof. The maker answered by denying any knowledge as to her ownership and as to whether the note had been indorsed or transferred to her by the original payee. Held, that, while the complaint was uncertain and vague, it was sufficient, after answer, to admit proof of the source and chain of plaintiff’s title.</p> <p>Notes — Construction of Stipulation.</p> <p>2. An admission that a negotiable instrument was indorsed by the payee thereof to a person other than plaintiff is not an admission that the instrument was indorsed to plaintiff’s predecessor in title, the names not being the same.</p> <p>Pleading — Real Party in Interest.</p> <p>3. The defense that a suit is not brought by the real party in interest is proper only where it appears that defendant is cut off from a just offset or counterclaim against plaintiff’s demand, and that a j udgmentin favor of plaintiff will not fully protect defendant when discharged.</p> <p>Collection or Sale of Note — Intent of Parties.</p> <p>4. Where a note is sent to an agent for collection, and after maturity is paid by the agent, who was not liable thereon, the transaction will be treated, not as a payment, but as a purchase by the agent, if he intended it as such.</p>

<p>Injunction Against Trespass * - Necessity oe Irreparable Injury.</p> <p>1. Equity will not enjoin the continuance of a trespass on realty unless the acts committed amount to an irreparable inj ury to the estate: for example, opening an inclosure and cutting crops and shrubbery growing thereon, and turning cattle therein, under a claim, of right so to do, is not a destruction of the body of the estate, and an injunction will not lie against the trespasser: Mendenhall v. Harrisburg Water Co. 27 Or. 38, Allen v. Dunlap, 24 Or. 229. and Muldrick v. Brown, 37 Or. 185, distinguished.</p> <p>Injunction Against Trespass — Insolvency of Trespasser. †</p> <p>2. The mere insolvency of a trespasser does not warrant an injunction against his trespassing.</p> <p>Pleading — Failure to State Cause of Action —Demurrer.</p> <p>3. Under B. & C. Comp. § 72, providing that, if no objection be taken by demurrer or answer, defendant shall be deemed to have waived the same, excepting the objection that the complaint does not state facts sufficient to constitute a cause of action, a failure to demur to a count of a complaint on the ground that it does not state facts sufficient to constitute a cause of action is not a waiver of the objection.</p> <p>Pleading—Statement of Separate Causes of Action.</p> <p>4. The material matter of each separate cause of suit or action stated in a pleading must be complete within itself.</p> <p>Injunction—Incomplete Title to Public Land—Possession.</p> <p>5. A qualified settler on public land, who is in possession but whose title is yet uncompleted, cannot maintain a suitto quiet title thereto: JCitcherside v. Myers, 10 Or. 21; Jackson v. Jackson, 17 Or. 110; Pacific Livestock Co. v. Gentry, 38 Or. 275, distinguished.</p>

<p>Acceptance op Easement Granted by Congress por Highways.</p> <p>1. The continuous use of a road over unoccupied government land by the public fortwenty years, during thirteen years of which the road has been located by a court proceeding, and marked by the public surveyor, amounts to an acceptance of the easement granted by the act of Congress of July 26,1866 (Rev. Stat. U. S. I 2477) for the construction of highways over government lands not reserved for public use.</p> <p>Highways Over Public Land— Rights of Subsequent Purchaser.</p> <p>2. After the right to use certain governmen t land for a public highway has become fixed, one subsequently acquiring title thereto takes subject to such easement.</p> <p>Highways by Prescription Over State Land.</p> <p>3. Continuous use by the public as a highway of a strip of state land for more than twenty years, during the ownership of the state, establishes a public easement by prescription over such land for highway purposes.</p>

From Lane : James W. Hamilton, Judge. This is a suit by G. B. McLeod against Clyde D. Lloyd to remove an alleged cloud upon the title to real property.

From Harney: Morton D. Clifford, Judge. This is an action by Newton Hoover against W. J. King and others to recover possession of the east ) of the southwest ) of section 8, township 25 south of range 35-) east, in Harney County, which plaintiff tried to recover possession of from the same defendants in an action begun in 1889, wherein he alleged in his complaint that he was the owner in fee simple and entitled to the possession of the property, and that the defendants and…

<p>Construction of Statutes — Meaning of Legislature.</p> <p>1. The act of 1903, purporting to amend the statutes relating to The Port of Portland (Laws, 1908, p. 339), was intended as an amendment of the act of 1901 on the same subject. This is evident from the language of the title of the act, and from a comparison of the act of 1901 with an act on the same subject in 1899, which does not contain any sections numbered to correspond with those revised by the latest act.</p> <p>Quotation and Punctuation Marks — Statutes.</p> <p>2. Quotation marks are points of punctuation, and, like other such points, are not controlling in determining the real meaning of an act or its title, but may be entirely disregarded or rearranged as the meaning may require.</p> <p>Statutes — Title of Amendatory Act — Constitution.</p> <p>3. The requirement of Const. Or. Art. IV, $ 20, that “every act shall embrace but one subject and matters properly connected therewith, which subjects shall be expressed in the title,’' is complied with, in the case of an amendatory act, by any designation that identifies with reasonable certainty the law to be modified.</p> <p>Judicial Notice of Dates of Legislative Acts.</p> <p>4. Under B. & C. Comp. § 720, subd. 3, providing that courts will take judicial notice of the “public and private official acts of the legislative, executive, and judicial departments of this state,” the courts may propei’ly consider the dates of the enactment of the various statutes relating to The Port of Portland.</p>

<p>Divorce —Misconduct of Plaintiff as a Defense — Pleading.</p> <p>Misconduct, of plaintiff amounting to a cause for divorce is a defense to a suit to dissolve tlie marriage relation, and it will be considered whenever it appears in evidence whether pleaded or not; this under the general rule that those who come into equity must come with clean hands.</p>

From Coos: James W. Hamilton, Judge. This is an action by It. A. Graham against C. H. Merchant to recover money paid by plaintiff on a contract which he seeks to rescind in consequence of the defendant’s alleged abandonment thereof.

From Union : Robert Eaicin, Judge. Tlie complaint herein sets up, in substance, that plaintiff, the Herring-Hall-Marvin Co., is a corporation organized under the laws of New Jersey; that on the first day of April, 1901, defendant made, executed, and delivered to plaintiff an instrument in writing, which is made a part thereof; that on or about the fifth of June, 1901, the plaintiff shipped the safe mentioned therein, and consigned the same to defendant at the town of La…

From Harney: Morton D. Clifford, Judge. The defendants George S. Miller and James Colwell were jointly indicted with Bert Bailey for the murder of Joseph Warren Curtis, and convicted of murder in the second degree ; Bailey having been discharged from the indictment' during the progress of the trial.

<p>Proofs of Death Furnished by Mutual Benefit Society as Evidence.</p> <p>Adverse statements made by the officers or agents of a mutual benefit society in accordance with its rules are competent evidence as admissions against interest: for instance, where the by-laws of a mutual benefit society provided that on the death of a member the officers of the local society to which he belonged should furnish full proof of death on printed blanks prepared for that purpose, which also required the local officers to give their opinion as to the validity of the beneficiary’s claim against the society, the local officers must be considered the agents of the general society, and their statements and admissions thus made against the interest of the general organization are competent evidence in an action on the benefit certificate.</p>

<p>Instructions on Irrelevant Issues.</p> <p>1. Instructions to j uries should not deal with issues outside the pleadings and the evidence, and when such instructions are requested they may be refused.</p> <p>Sales — Instruction as to Good Faith of Agent.</p> <p>2. Defendant sold lumber to plaintiff to be shipped to plaintiff’s customers in another country; the contract providing that, if a dispute arose at the port of discharge as to the quality of the lumber, defendant should appoint an agent on the spot to settle it. A dispute arose, and defendant appointed plaintiff its agent to settle. Plaintiff selected certain surveyors to examine the lumber and report what allowance should be made to the buyers. These surveyors recommended a certain reduction, and plaintiff settled with the buyers on this basis. Under these facts an instruction that if plaintiff’s foreign house used reasonable care in selecting surveyors to examine-the lumber, and in reliance on their report settled the dispute in good faith, the defendant is bound by such settlement, was properly refused as being inappropriate, for the surveyors were merely a means used by the plaintiffs and were in no sense agents of defendant.</p> <p>Instruction as to Credibility of Evidence by Deposition.</p> <p>3. Under a statute allowing evidence by oral examination or deposition, the refusal of a requested charge that the fact that a witness testifies by deposition does not affect his credibility is not error, where there are no peculiar circum. stances attending the introduction of depositions which call for such a charge.</p> <p>Inconsistent Rulings.</p> <p>4. The exclusion as irrelevant of evidence as to a matter not in controversy, and the refusal of a request to charge that this matter was not in controversy, are not erroneous, as inconsistent.</p>

<p>Right of Executor to Sue Individually.</p> <p>1. Where a cause of action accrues to an executor or administrator after the death of the decedent, he may sue thereon either in liis representative or his individual character, and, if the complaint states a cause of action in one or the other it is sufficient.</p> <p>Notes —Presumption as to Execution —Burden of Proof.</p> <p>2. The execution of a promissory note in action being denied, there is no pre_ sumption of its regular execution, and the burden of proof on that point is with the plaintiff throughout.</p> <p>Wrong Instruction not Cured by a Correct One.</p> <p>3. In an action on a note, where defendant alleged that the signature of her name thereto was a forgery, an erroneous instruction that the presumption was that the note was regularly executed was not cured by a previous instruction to the effect that the burden of proof was on plaintiff lo show that defendant executed the note, as it was impossible to tell which instruction the jury followed.</p> <p>Note — Forgery — Presumption—Abstract Proposition.</p> <p>4. In an action on a promissory note, the execution of which is d.enied, defendant pleading that the signature is a forgery, an instruction that it will be presumed that the person who signed the note, if not defendant, was innocent of forgery, is of doubtful propriety: First Nat. Bank v. Commercial Assur. Co. 33 Or. 43, and Savage v. Savage, 36 Or. 268, distinguished.</p> <p>Burden of Proof in Cases of Agency.</p> <p>5. Where defendant denies the execution of an instrument sued on, the question is whether the act of the party signing such instrument, if not defendant, was binding on her, either because she authorized or subsequently ratified it, and the burden of proof is on plaintiff to establish the agency or ratification.</p>

<p>Vendor and Purchaser — Sufficiency of Evidence.</p> <p>1. In a suit by the obligee in a bond for the conveyance of real estate to compel specific performance, evidence held insufficient to show either a transfer of the bond by plaintiff or a ratification of an unauthorized assignment of it in her name by her husband.</p> <p>Vendor and Purchaser — Possession as Notice of Equities.</p> <p>2. A purchaser of real property finding a person other than the vendor in possession is bound at his peril to inquire with reasonable care as to the rights of such occupant, and is chargeable with whatever facts would be disclosed by such an inquiry.</p>

<p>Precedence Between Tax Lien and Prior Mortgage.</p> <p>Under Section 2S21 of Hill’s Ann. Laws, providing that “a sale of real property conveys to the purchaser all the estate or interest therein of the owner,” and section 2823, providing that a tax deed should operate “to convey a legal and equitable title to the purchaser [property?], sold in fee-simple to the grantee named in such deed,” a tax deed did not cut off the lien of a mortgage executed before the assessment and levy of the tax, the assessment being against the person, and not specifically against the property, and the manner of collecting the tax being to make it out of the personal property, if such could be found, and, if not, then out oí the realty. Under this statute only the interest of the person assessed passed by the deed: N't oleum v. Gaston, 24 Or. 380, and Mo Nary v. Wric/himan, 32 Or. 573, distinguished.</p>

<p>Garnishee’s Contract to Hold Garnished Property.</p> <p>1. A receipt acknowledging that receiptors, who were garnishees in an action against A, had “received from C, sheriff, all the hops raised by A on our land,” Is an admission that the sheriff had possession of the hops in his official capacity, and that A owned them.</p> <p>Pleading — Breach of Contract to Return Attached Property.</p> <p>2. Where a receipt given to a sheriff by garnishees acknowledged the receipt of property of the j udgment debtor, which receiptors agreed to hold until ordered “to release the same” by the sheriff, an allegation in the complaint in an action by the sheriff for breach of the contract to return the property, that plaintiff had demanded possession of the property, which receiptors refused and still refuse to deliver, was sufficient, after answer, as an allegation of breach of the agreement to return the property.</p> <p>Estopped by Conduct.</p> <p>3. Where a receipt given by garnishees acknowledged that receiptors had received certain property of the judgment debtor from the sheriff, which they agreed to hold until released by the sheriff, they were estopped, in an action by the sheriff for breach of the agreement to return the property, from showing that the property had never been in their possession, or that the sheriff had never levied on the property or taken possession thereof.</p>

From Multnomah: Melvin C. George, Judge. Suit by C. G. Cline against L. J. Shell to forclose a lien for materials, resulting in a decree for plaintiff; hence this appeal.

From Marion: Reuben P. Boise, Judge. Suit by Bessie Randall and Bessie O. Randall, a minor, by Bessie Randall, her general guardian, against C. G. Ling-wall. Decree for plaintiffs. Defendant appeals. I. A court of equity acts upon the conscience, and it is upon the ground of mala fides that a purchaser for value is affected with notice of a prior claim.

From Lane: James W. Hamilton, Judge. This is a suit by Charles Wagner against Geo. A. Dorris and others to quiet title to a mining claim known as the “Democrat,” situated in the Blue River Mining District, in Lane County. He avers that he located the claim January 1, 1901, and that the defendants claim some right, title, or interest therein adverse to his, and prays that they be required to set up the nature thereof, that it may be adjudicated.

From Columbia: Thos. A. McBride, Judge. This is an appeal by William Eccles and others from a decree of the circuit court enjoining them, at the instance of the Beaver Flume & Lumber Co., from cutting and removing certain timber, until a mortgage to secure the payment of $30,000, one half payable in one year and the remainder in two years from the date thereof, given by defendant Eccles to plaintiff April 8, 1902, is fully paid.

From Douglas: James W. Hamilton. Judge. This is an action by F. B. Waite, as executor of the estate of Feudal Sutherlin, deceased,against Kate Grubbe and her husband to recover possession of $7,885 in gold coin, alleged to be the property of the estate of Fendal Sutherlin, deceased. The defendant Kate Grubbe claims to be the owner of the money, and to have acquired it by gift from the deceased.

From Clatsop: Thomas A. McBride, Judge. Suit by J. E. Ferguson and C. L. Houston against George Kabotb to quiet the title to a lot in the City of Astoria. Defendant claimed under a deed from Clatsop County, which had bought the property for the unpaid taxes of 1898. Decree for plaintiffs and defendant appeals. The original opinion was written by Mr. Justice Bean, and the opinion on the motion for a rehearing by Mr. Justice Wolverton.

From Multnomah: Melvin C. George, John B. Clbland, and Alfred F. Sears, Jr., Judges, in joint session. This is an action by the City of Portland against the Oregon Real Estate Compan y, instituted und(er section 156 of the 1898 charter of the City of Portland (Laws 1898, p. 163), to collect the amount assessed against abutting property of the defendant by the common council of the city for repairs made upon an elevated roadway.

From Clatsop: Thomas A. McBride, Judge. This is an action by Reid, Murdoch & Co., a corporation, against the Alaska Fishermen’s Packing Co., also a corporation, to recover damages for a breach by the defendant of an alleged contract to sell and deliver to the plaintiff 2,500 cases of canned salmon. The plaintiff is engaged in buying and selling salmon, with its place of business in Chicago, and the defendant in packing salmon in Alaska for sale.

From Multnomah: Arthur L. Frazer, Judge. This is, an action by Matthew Geldard against J. I. Marshall to recover damages for an injury to the plaintiff alleged to have been caused by the negligence of the defendant. In October, 1901, the defendant was building an elevated roadway at Inman, Poulsen & Co.’s mill in Portland, and plaintiff was employed by him upon the work. The roadway was supported by three rows of piling-driven in the ground.

<p>Criminal Law—Admissibility of Dying Declarations. *</p> <p>1. It is not necessary that an injured person Lave expressed a belief in the near presence of death to render his statements competent as dying declarations, as his condition of mind may be quite apparent from his conduct. For instance, where a person who had been shot in an altercation was aware that his injuries were very severe, and had been informed by the attending surgeon that he necessarily had to die of his wounds, and that a statement by him would probably be serviceable in clearing up the matter, a corrected and signed written statement is competent evidence as a dying declaration, though the signer did not orally express his belief in impending death.</p> <p>Impeachment of Witness.</p> <p>2. On cross-examination of a witness vshe was asked if, under given circumstances, she had not made a certain statement to a certain person, which she denied. The certain person, having been asked whether such statement had been made, answered “Yes, would answer part of that,” but, after being required to answer explicitly, said “Yes.” On cross-examination she explained the conversation, which differed materially from the version given by the first witness, yet contradicted it in some respects. Held, that the impeaching testimony was competent.</p> <p>Understanding of Impeaching (Question by Witness.</p> <p>3. An impeaching question is sufficient if it attracts the attention of witness to the particular statement or act about which he is being asked, and greater particularity than will accomplish this is not required.</p> <p>Self-Defense † —Repelling Unarmed Attack.</p> <p>4. In rei>elling an unprovoked attack the party assailed may act upon the reasonable appearances of the situation, though the assailant may not have been armed. Sometimes an unarmed attack may j ustify a killing in self-defense.</p>

From Multnomah: Melvin C. George, Judge. Action by C. O. Bergman against Inman, Poulsen & Co., a corporation, and Matti Makarainen, to recover damages for taking and converting certain logs on which plaintiff and his assignors had liens. The action is to enforce a right given by Section 1694, Hill’s Ann. Stat. & Codes, Wash., the body of which is set out in the opinion. Plaintiff recovered a judgment, and defendant corporation appeals.

From Union: Alfred F. Sears, Jr., Judge. Suit by A. E. Eaton and. others against J. H. Mimnaugh, County Clerk of Union County, to restrain the latter from giving notice of a special election for the relocation of the county seat of Union County, and incurring the necessary expense incident thereto. A demurrer to the complaint was sustained, and from the resulting decree plaintiffs appeal.

<p>Modifying! Divorce Decree — Service by Publication.</p> <p>1. Where service of the summons in a divorce suit has been made by publication,and thedefendant has notappeared, no decree can be rendered that will bind the defendant personally, in the absence of some statutory provision or reservation in the decree, except that the marriage is ended. In such cases decrees cannot be entered awarding to the successful party, costs, for example, or alimony, or attorney’s fees, divorces being quasi inrem only as to the marital status, but otherwise in personam.</p> <p>Statutory Power to Modify Decree as to Alimony or Costs.</p> <p>2. Section 514, B. & C. Comp., providing for a modification of divorce decrees at any time so far as they affect the maintenance of either party, does not authorize the revision of such decrees by adding requirements for the payment of items like alimony, costs, or attorney’s fees, where the decree was entered without an appearance by the defendant.</p> <p>Modifying Divorce Decree as to Maintenance of Children.*</p> <p>3. Under Section 514, B. & C. Comp., authorizing the modification of divorce decrees at any time after their rendition, in so far as they provide for the custody, nurture, and education of minor children, courts may subsequently, on proper notice, require parties in fault to contribute to the future support of their minor children, and to pay a reasonable sum for their past support, as the duty of the parents to care for and educate their offspring is not affected by a divorce.</p> <p>Appeal — Remanding to Add Parties or Evidence.</p> <p>4. Where it appears in an equity suit that the disputed matters cannot be satisfactorily determined by the appellate court because of the condition of the record, as, because of the absence of parties, or because certain evidence has not been taken, the court may, at its discretion, remand the cause for further consideration by the trial court rather than enter a final decree.</p> <p>Statute Governing Piling of Cost Bills In Supreme Court.</p> <p>5. Section 568, B. & O. Comp., governs the practice as to taxation of costs and disbursements in the supreme court, by analogy, there being no special statute on the subject.</p> <p>When Judgment of Supreme Court is Rendered.</p> <p>6. A judgment of the supreme court is final when the decision is announced, or, in other words, that is the date of the “rendition” of the judgment or decree, within the meaning of Section 568, B. & C. Comp., as amended by Laws 1903, p. 209, and the time then begins to run against the right to file a cost bill.</p> <p>Time Allowed for Piling Cost Bills in Supreme Court.</p> <p>7. Where the taxable costs and disbursements can be ascertained at the time a case is decided the cost bill must be filed within the time limited by statute, in default of which it may be stricken from the files. In this case the successful party could have computed the taxable charges when the judgment was rendered, and should have filed the cost bill within five days thereafter, as required by Section 568, B. & C. Comp., as amended by Laws 1903, p. 209; but not having done so. either within five days or the first day of the next term, the costs must be disallowed.</p>

From Marion: Reuben P. Boise, Judge. This is a suit to enjoin the prosecution of an action at law. The facts are that plaintiff’s father having died seized of certain real property in- Marion County, forty acres thereof were set apart to her mother, the defendant, as her dower, the reversion thereto being vested in the plaintiff, her brother, and three sisters.

<p>Statute of Frauds — Original Promise.</p> <p>1. Where the president of a corporation orally agreed to reimburse plaintiff for expenses and attorney’s fees incurred in certain negotiations between plaintiff and the corporation, if the contract was not consummated, such promise to reimburse was original, and not a promise of the president to pay a debt of the corporation.</p> <p>Consideration for Contract of Indemnity.</p> <p>2 Where the president of a corporation agreed that if plaintiff would not revoke his offer to purchase certain stumpage of the corporation, but would hold himself ready for two days to contract with the corporation in compliance with the offer, and would meet defendant at a time specified, defendant would pay plaintiff’s expenses and attoimey’s fees if the contract was not consummated, plaintiff’s agreement not to revoke his offer, and to meet defendant at the time specified, constituted a sufficient consideration for defendant’s contract.</p> <p>Mutuality of Contract to Indemnify.</p> <p>3. Where defendant agreed that if plaintiff would keep open an offer to purchase certain stumpage for two days, and return to defendant’s place of business to consummate the contract, defendant would pay plaintiff’s expenses and attorney’s fees if the contract was not consummated, and plaintiff assented to defendant’s proposition, and expressly agreed to the terms offered, such contract to indemnify plaintiff was not void for want of mutuality.</p> <p>Question for Jury — Nonsuit.</p> <p>4. The testimony offered by the plaintiff j ustified a submission of the case to the jury, for it reasonably tended to support the allegations of the complaint.</p> <p>Competency of Evidence.</p> <p>5. In an action to recover on an agreement to indemnify plaintiff for expenses and attorney’s fees if a certain contract should not be consummated, a letter written by defendant, advising plaintiff that the contract could not be entered into, and asking him to send his bill of costs, upon which defendant would send a check for the same, is admissible.</p> <p>Idem.</p> <p>6. In such an action evidence of the amount of land and the quantity of timber involved in the proposed contract is relevant.</p> <p>Appeal — Damages for Delay.</p> <p>7. Damages for delay necessitated by an appeal as authorized by B. & C. Comp. I 557, cannot be allowed where the supreme court is unable to say from the record that the appeal was not taken in good faith.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>This is a suit by Saul Silverfield against Sigmund Frank to enjoin the violation of a written agreement concerning the use of real estate, and to compel the defendant to remove a certain fence or structure from the premises. The facts concerning the execution of the agreement are as follows : The defendant is the owner of lots 5 and 6, in block 265, in the City of Portland, upon which is located his dwelling house, the north side of which is within four feet of his north line. Some time prior to the execution of the contract the plaintiff purchased and acquired title to the west half of lots 7 and 8, adjoining defendant’s property on the north, and had contracted for, and was proceeding to erect thereon, three houses or flats, which would cover practically all of his property, and thus interfere with the light and air to the defendant’s dwelling, and otherwise impair the enjoyment thereof. The defendant, after some unsuccessful efforts to purchase the plaintiff’s property, acquired an option on the east half of lots 7 and 8, and then threatened, if the plaintiff proceeded with the construction of his buildings, to acquire the title to such property, and erect along the south and east sides of plaintiff’s property a solid board fence forty feet high, which would have shut out the light and air and otherwise injured and damaged the plaintiff. After some negotiations between the parties, and as a settlement of their controversy, they entered into the following written agreement:</p> <p>“Portland, Oregon, November, 25, 1902.</p> <p>We hereby agree to sell to S. Frank the south twenty feet of lot seven (7), in block two hundred and sixty-five (265), in the City of Portland, Oregon,'for the sum of two thousand five hundred and seventy-five dollars ($2,575.00). The agreement shall be void if said Silverfield shall be unable to purchase the east half of said lots for the sum of ($3,500.00) within three days from the date hereof, and provided the contractors will consent to modification of their contracts as they now offer to do as to construction of two instead of three houses on said property. No house shall be erected on said south twenty feet, and no fence, other than a wire or iron fence, six feet high, shall be erected on the north line of said south twenty feet during the ownership of said north eighty feet of said lots by said Silverfield. Said S. Frank shall purchase and pay for said twenty feet the said sum of twenty-five hundred and seventy-five dollars ($2,575.00) within three days from this date and hereby agrees to do so. Silverfield agrees to fill or cause to be filled to its original level, said twenty feet agreed to be sold to said Frank.</p> <p>In the presence of</p> <p>G. H. Vore, S. Silverfield,</p> <p>Geo. W. Joseph. S. Frank.”</p> <p>After the execution of the agreement, the plaintiff purchased the east half of lots 7 and 8, arranged with his contractors for a modification of their contracts so as to provide for the construction of two instead of three houses, deeded to the defendant the south twenty feet of lots 7 and 8, and in all other respects fully performed all the terms of the agreement on his part to be performed. He then proceeded with the erection of two houses upon his property, to cost about $14,000, when the defendant commenced to and did construct on the twenty feet conveyed to him by the plaintiff, and within about one foot of the north line thereof, a solid board fence, eighteen feet high, and was threatening at the time of the commencement of this suit to extend its height, and to paint it on the side next the plaintiff’s houses a “funeral black.” The purpose of this suit is to restrain the construction of such fence, and to compel the defendant to remove so much thereof as has already been completed. Plaintiff had a decree in the court below, and the defendant appeals.</p>

From Multnomah: Melvin C. George, Judge. This is an action by W. Ferguson against O. N. Reiger to recover money commenced in a justice’s court in Multnomah County by filing a complaint of which the following is a copy: “Comes now the plaintiff, and for cause of action alleges : That at all the times mentioned in this complaint defendant is and was a resident of Portland District of Multnomah County, State of Oregon.

<p>Service by Publication — Possibility of Substituted Service.</p> <p>1. After a divorce suit has been commenced, it must be inferred that neither of the parties is a “person of the family” of the other, within the meaning of B. & C. Comp, g 55, subd. 5, providing thatif the defendant be not found the summons may be delivered “to some person of the family” over a stated age, where it appears that they had lived together until the day before the filing of the complaint, that plaintiff had the custody of the minor children by the marriage, and that defendant had left this state, for these statements show that the family relationship was at least suspended. Nor can the minor children who are in plaintiff’s care be considered persons of the family of the other spouse under such circumstances.</p> <p>Difference Between Dwelling House and Place of Residence.</p> <p>2. The terms “dwelling house” and “usual place of abode,” used in B. &. C. Comp, g 55, subd. 5, providing for serving process on a member of defendant’s family, are synonyms signifying domicile, and have a different meaning from “place of residence,” found in section 57, line 8, directing whither the pleadings shall be sent by mail if defendant cannot be served within the state. The former terms refer to the place of permanent dwelling in thisstate, while the latter applies to defendant’s residence, either permanent or temporary, in another state or country.</p> <p>Publication — Residence to Which Process Should be Mailed.</p> <p>3. An affidavit for the publication of a summons stating that “defendant is now and was during all the times hereinafter mentioned a resident and inhabitant of this state, and has departed therefrom” and is now at a stated place in a foreign country, inferentially shows that defendant has a fixed and permanent abode in Oregon, but is now temporarily residing elsewhere, and the point of such present sojourning is his “place of residence,” within the meaning of that expression in B. & C. Comp, g 57, line 8.</p> <p>Purpose of Publishing Summons.</p> <p>4. The object to be accomifiished by a publication and mailing of a summons, as directed by Section 57, B. & C. Comp., is to notify the party of the pendency of the suit, and the summons and complaint should be mailed to him wherever he may happen to be at the time, rather than to his place of permanent abode.</p> <p>Specifying in the Order the Time of Appearance.</p> <p>5. “The time prescribed in the order for publication,” which must be specified in a published summons, under Section 57, B. & C. Comp., means the number of weeks considered by the judge making the order to be reasonable for publication, so that an order directing a summons to be printed for six consecutive weeks does prescribe “the time for publication,” within the meaning of B. & C. Comp, g 57, line 16.</p> <p>Time Allowed to Make Proof of Publication.</p> <p>6. B. & C. Comp, g 822, declaring that proof of publication of a notice required to be published in a newspaper may be made by the affidavit of the printer, etc., but that such affidavit must be made within six months after the last day of publication, is directory only; and hence a failure of the printer to make affidavit within that time to the publication of a summons does not affect the jurisdiction of the court to render judgment thereon, if the affidavit is made and filed before the making of the final order.</p> <p>Collateral Attack for Insufficiency of Complaint.</p> <p>7. Where complaint in a suit for divorce alleged some facts warranting a decree in favor of plaintiff, such decree cannot be collaterally attacked on the ground that the complaint was insufficient for want of facts.</p> <p>Appeal — Costs — Briefs—Stipulation.</p> <p>8. The parties in an appeal stipulated that the briefs and abstract therein might be used on appeal in another action, in which the appellee in the first mentioned appeal was appellant. In the other appeal judgment was reversed, entitling appellant therein to costs; and in the appeal for which the brief and abstract were originally prepared there was also a reversal, making the same party liable for costs on that appeal. Held, that the stipulation did not operate to make half the costs of printing chargeable to each appeal, but that the successful party in the first appeal was entitled to the full costs of printing.</p>

From Multnomah: John B. Cleland, Judge. This is an appeal from a decree of the circuit court reversing an order of the county court setting aside and vacating a decree of final settlement of the estate of Wallace L. Conant, deceased.' Conant died in March, 1898, leaving his wife as his sole heir. On April 23d of that year, H. A. Keinath, the father of Mrs. Conant, was appointed administrator of the estate.

<p>Establishing Highways — Nature of Appeal Proceedings.</p> <p>1. An appeal to the circuit court from an assessment of damages in a proceeding brought to establish a public highway, taken under Section 4789, B. & C. Comp., brings up only the question of damages, and does not involve the regularity of any other matter.</p> <p>Method of Trying Highway Proceeding on Appeal.</p> <p>2. Where a statute provides on! y for an appeal from the decision of the county court in awarding damages in proceedings for the establishment of a highway, like Section 4789, B. & C. Comp., such appeal is tried as an action at law, the appellant being considered as the plaintiff and the county as the defendant, just as would have been the case had the landowner brought an original action in the circuit court for damages for the location of the road.</p> <p>Appeal to Circuit Court — Remanding to County Court.</p> <p>3. Where an appeal is taken to the circuit court from an order of damages in highway establishment proceedings, such court has no jurisdiction, after trial, to remand the case to the county court for j udgment, but is itself required to render such judgment as the parties are entitled to.</p> <p>Right of Appeal Not Dependent on Establishment of the Road.</p> <p>4. The right of appeal in highway opening proceedings given by B. & C. Comp. § 4789, is not dependent on the order of the county court directing the road to be opened or established as authorized by section 4788, but is dependent upon the giving of the j udgment for damages.</p> <p>Allowance of Costs on Appeal in Highway Proceeding.</p> <p>5. In view of Section 576, B. & C. Comp., providing that, in all actions prosecuted or defended in the name or for the use of any county, the latter shall be liable for and may recover costs in like manner and with like effect as in the case of natural persons, and section 4789 authorizing an appeal by a landowner from an assessment of damages in highway opening proceedings, and declaring that, if he fails to recover a more favorable j udgment on appeal than the report appealed from, he shall pay all costs of the appeal, and considering that the trial on such an appeal is substantially a law proceeding, the costs and disbursements should correspondingly abide the result.</p> <p>Condemnation for Public Road —Form of Judgment.</p> <p>6. The purpose of a judgment in condemnation proceedings, as, for a public road, is to judicially fix the amount to be paid for the taking of the required property, and no personal judgment should be entered, so far as the award is concerned.</p>

From Multnomah: Arthur L. Frazer and Melvin C. George, Judges, in joint session. The will of Esther L. Mendenhall having been admitted to probate by the county court of Multnomah County, its validity was called in question, and the probate was revoked by W. M. Cake, then county judge. The executor appealed to the circuit court, where the decision of the county court was affirmed, and the executor again appeals.

From Marion: George H. Burnett, Judge. This is an action of replevin for hops, and resulted in a judgment for defendant, from which plaintiff appeals. A motion to dismiss the appeal for want of a proper record was overruled, the opinion being written by Mr. Justice Wolverton. Subsequently the case was heard on the merits of the appeal, and affirmed in an opinion by Mr. Chief Justice Moore.

<p>Need of Alleging Ownership in Forcible Detainer Cases.</p> <p>1. In view of the provisions of Section 5747 of JB. & O. Comp., that it will be sufficient, in actions for forcible entry and detainer, to describe with convenient certainty the property involved, to state that the defendant is in possession and unlawfully holds the same with force, and that plaintiff is entitled to the possession, it is unnecessary to allege the ownership.</p> <p>Jurisdiction of Justice’s Courts — Title to Real Property.</p> <p>2. A justice’s courtis not ousted of jurisdiction in an action of forcible detainer because the complaint alleges and the answer admits the ownership of the land, as the title is notin any way thereby disputed.</p> <p>Forcible Detainer — Right to Amend Appeal Bond—</p> <p>3. Where there is a right of appeal from a judgment of a justice’s court in an action for the restitution of real property, the appeal is not perfected, until the special undertaking for twice the rental value of the property has been given, as provided by Section 5754, B. & O. Comp., and if such an undertaking is not given within the time limited, the appeal must be dismissed. In such cases the privilege of amendment conferred by Section 2249 is not available, because such privilege applies only to defective undertakings, and in the absence of any undertaking of the kind required there is nothing to amend by.</p> <p>Dismissing Appeal — Specification of Reasons in Motion.</p> <p>4. Where it is the duty of a court to dismis an appeal sua sponte an indefinite motion to dismiss will be considered sufficient to require for action.</p>

<p>Amendment of Statutes — Implied Repeal.</p> <p>An amendment of a law under a constitutional provision requiring the statute to be set out in full as amended operates as an entire obliteration of the former statute from the time the new law goes into effect, and nothing can thereafter be done under its authority: Smith v. Kelly, 24 Or. 464, distinguished.</p> <p>B. & C. Comp. §§ 3057, 3120, providing that the assessment for taxes shall begin on the first Monday in March, and setting forth the dates for all acts in reference thereto, are amended by Laws 1903, p. 295, setting them out in full as amended, and substituting an entire change of dates, making the assessment begin on the first Monday in January, etc., and providing that the new law shall go into force January 1, 1904. Held, that such amendment operated as an entire repeal of the former statutes, and, on the taking effect of the new law, no further proceedings could be had under the old, though the effect was to leave officials without authority to estimate and apportion the necessary tax for that year.</p>

<p>From Marion : George EL Burnett, Judge.</p> <p>This is an action by Geo. La Vie against Walter L. Tooze to recover the possession of 40 bales of hops, or $1,662.12, the value thereof, in case delivery could not be had, and $300 for the alleged wrongful detention thereof. The answer denies the material allegations of the complaint, and avers that the hops are of the value of $2,000, and, for a further defense, alleges, in substance, that at all the times mentioned in the complaint the defendant was the owner of the hops, and in the rightful possession thereof until November 3,1902, when they were wrongfully taken from him by the plaintiff, to his damage in the sum of $100. For a second defense it is stated, in substance: That on January 16, 1902, plaintiff and one J. R. Kaser entered into an executory contract for the sale of 8,000 pounds of hops to be grown by the latter in Marion County during that year; a copy of the agreement being attached to, and made a part of, the answer ; that in pursuance of such contract, plaintiff, at the time it w'as entered into, advanced to Kaser $1.00, and thereafter various other sums, amounting, with interest, on October 31,1902, to $490.50, which sum on that date Kaser tendered to plaintiff, who refused to accept the same, or any part thereof, and was thereafter deposited in court for him with the answer; that the hops mentioned in the complaint are the identical hops specified in the contract, and plaintiff’s only claim or title thereto is by virtue of the executory agreement; that, after the execution of the contract, Kaser cultivated, harvested, baled, and retained the hops in his possession until about November 1, 1902, when he sold and transferred them to the defendant; that Kaser performed all the terms of the agreement upon his part, but plaintiff refused to comply with the stipulations thereof assumed by him. A supplemental answer was filed, alleging that, since the filing of his answer, plaintiff wrongfully secured the possession of and unlawfully removed the hops from the state, and converted them to his own use, to the defendant’s damage in the sum of $2,000. Replies having put iu issue the allegations of new matter in the original and supplemental answers, a trial was had, resulting in a judgment that defendant was the owner and entitled to the immediate return and possession of the hops, or to recover $1,800, the value thereof, and the sum of $32.60 as damages, from which judgment plaintiff appeals.</p>

From Multnomah: John B. Cleland, Judge. Pruceedings for the sale of real estate of a decedent for the purpose of paying claims against the estate. From a decree of the circuit court reversing an order of the county-court aud directing a sale the property, the objectors appeal. A motion to dismiss the appeal was overruled, and the decree afterward affirmed, both opinions being written by Mr. Justice Wolverton.

<p>Executory Contract of Sale —Passing Title —Replevin.</p> <p>1. - Where a contract for the sale of chattels required the seller to perform labor in segregating those sold from a larger quantity, the performance of such act was a condition precedent to the vesting of title in the buyer, and hence the contract was insufficient to entitle the latter to maintain replevin for the chattels sold.</p> <p>Replevin — At What Time Value is to be Estimated.</p> <p>2. Under Section 198, B. & O. Comp., providing that when property has been taken from a defendant in replevin, and in his answer defendant demands a return thereof with damages, he is entitled, if he prevails, to have the property restored to him, and damages for its detention, and if the possession cannot be restored he may recover the value of the property and damages for taking and withholding the same, the value of the property should be fixed as of the date of the verdict.</p> <p>Harmless Error.</p> <p>3. Where, in replevin, it was conclusively shown that the highest market value of the articles was at the time of the trial, an erroneous instruction that, if they could not be redelivered to the defendant, and he was entitled to recover, he would be entitled to the highest market price between the time of the taking and the time of the trial, was harmless, the verdict being for the value at its date.</p> <p>Interest as Damages in Replevin Actions.</p> <p>4. Where, in replevin, it was found that defendant was entitled to a redelivery of the property, and the value thereof was assessed as of the date of the trial, defendant was not entitled to recover interest in addition.</p> <p>Allowance of Costs to Appellant on Affirmance — Law Action.</p> <p>5. Objection having been promptly taken to a ruling of the trial court, in a law action, whereby the opposite party might have consented to a correction of such ruling, and on appeal it appearing that this ruling constituted the only error, and that it caused an excessive judgment in an ascertainable amount,*as, the sum allowed as interest, or as damages, the appellant may be allowed his costs, though the j udgment is ordered affirmed less the excess.</p> <p>Reversal on Appeal —Directing Particular Judgment.</p> <p>6. Where a reversible error is one not affecting the general result, but only the particular amount of the judgment, and the corrective information is apparent on the record, the case may be reversed with directions to enter a stated judgment, rather than to hold another trial.</p>

From Clackamas: Thos. A. McBride, Judge.. Suit by Wm. H. Hall against Laura C. Hall for a divorce on the ground of adultery. Plaintiff appeals from a decree dismissing his suit.

From Klamath: Henry L. Benson, Judge. This is an action by N. C. Anderson to recover damages from J. F. Adams, an agent, for the breach of an agreement claimed to have been made in excess of his authority.