Volume 45 — Oregon Reports

From Multnomah: Alered F. Sears, Jr., Arthur L. Frazer, and Melvin C. George, Judges, in joint session. This is a suit by Joshua Roberts Mead and others against the City of Portland and its officers to enjoin and restrain the defendants from closing a passageway in the approach to Morrison Street Bridge, leading to the lower floors of plaintiffs’ wharves.

From Marion: Reuben P. Boise, Judge. This is a suit by David Froebrich and others against D. F. Lane, personally and as administrator, to set aside an order and decree of the county court of Marion County, made and rendered in the matter of the estate of Emanuel Froebrich, deceased, November 24, 1902, settling and allowing the final account of the administrator, the defendant herein. The deceased left an estate valued at $3,935.

<p>From Baker: Robert Eakin, Judge.</p> <p>.Pleasant Armstrong appeals from an order fixing a new date for his execution, the time stated in the death warrant having passed while his case was on appeal: 43 Or. 207 (73 Pac. 1022).</p>

From Marion: Reuben P. Boise, Judge. Suit by T. A. Livesley and John J. Roberts to require John Johnston to specifically comply with a contract to sell plaintiffs certain hops, other parties being made defendants because they were connected with the possession of the property. The suit was dismissed on demurrer to the complaint, from which order plaintiff appealed.

From Umatilla: William R. Ellis, Judge'. The plaintiff the Northwestern Warehouse Company being the owner of a quantity of wheat stored at Barnhart Station, in Umatilla County, insured it with its coplaintiff, the Fireman’s Fund Insurance Company, in the sum of $1,250, which was less than its value. The wheat was destroyed by fire, which, it is alleged, originated through the negligence of the defendant company, the Oregon Railroad and Navigation Company.

<p>Impeaching Decree by Correcting Mandate^Bill of Review.</p> <p>Where it is claimed that the enforcement of a judgment or decree will be inequitable, .owing to occurrences since its rendition, or the discovery of testimony that would probably have produced a different result in the case, and reasonable diligence has been used, the remedy is not by a motion to recall or modify the mandate, but is by an original suit of impeachment in the nature of a bill of review.</p>

Prom Sherman: W. L. Bradshaw, Judge. This is a suit by B. S. Kelsay against Alexander Eaton and others to quiet the title to real property.

From Union : Robert Eakin, Judge. This is an action by E. W. Oliver against the Oregon Sugar Company. In the year 1899 the plaintiff and Turner Oliver, who has since assigned his interest to the plaintiff, sold and delivered to the defendant 33 car loads of beets at a stipulated price per ton, and this action is brought to recover a balance alleged to be due thereon. The beets were shipped in U. P. steel cars, 0. S. L. cars, and 0.

From Multnomah: Alfred F. Sears, Jr., Judge. Habeas corpus to inquire into the cause of the imprisonment of Bert Stacey. The prisoner was remanded and appeals.

<p>From Josephine: Hiero .K. Hanna, Judge.</p> <p>This is a motion to dismiss an appeal.* The facts appear in the opinion.</p>

From Multnomah: John B. Oleland, Judge. Action of damages by Catherine Schroeder against Multnomah County for injuries received by her through the breaking of the footway on the Morrison-street Bridge in Portland. A demurrer to the complaint was sustained and plaintiff appeals.

From Baker: Robert Eakin, Judge. Suit by Lillian H. McDowell against Frank S. Parry for an injunction. The facts are stated in the opinion. Defendant appeals from a decree against him.

From Grant: Morton D. Clifford, Judge. Action by the Pacific Livestock Company against Kenneth Murray for damages caused by defendant’s sheep on plaintiff’s unfenced land. Plaintiff bad judgment and defendant appeals. The case was submitted on briefs under the proviso of rule 16 of the supreme court: 35 Or. 587, 600. I. The common-law rule as to trespass ought not to be held applicable to the sparsely settled regions of this country.

<p>Criminal Law — Waiving Filing of Mandate After Reversal.</p> <p>1. Though a defendant, before a second trial, may insist upon the entering of the mandate of the supreme court reversing a prior conviction (B. & C. Comp. §§ 1487 and 1488), such action is not jurisdictional, and the defendant waives it if the retrial proceeds without the point being urged.</p> <p>Drawing Trial Juries in Multnomah County.</p> <p>2. Under Section 976 of B. & C. Comp., providing for the drawing and summoning of jurors in Multnomah County, and Section 986, providing for filling the regular panel when it becomes depleted, the proper practice where several juries are required is to place in each box as they become available the names of jurors occupied in other trials when the selection in question commenced.</p> <p>Impeachment — Contradicting Impeaching Witness.</p> <p>3. It is competent to show by persons who were present and heard that an impeaching witness is mistaken in saying that statements on a certain subject made by the person impeached were different on a prior occasion from those made in court on the same subject.</p> <p>Competency of Trial Judge as a Witness.*</p> <p>4. Under B. & C. Comp. § 856, providing that the judge may be called as a witness by either party, a trial judge is a competent witness in a criminal case to testify that there was no inconsistency between the testimony of a witness at the trial in question and that given by him at a prior trial.</p> <p>Waiver of Plea of Former Acquittal.</p> <p>5. The defense of a former conviction or acquittal is one that may be waived by the defendant, being a personal privilege, and must be raised at the trial to be available. When the point is first made on a motion for a new trial it comes too late.</p>

From Umatilla: William R. Ellis, Judge. This is a suit by Agnes Kalyton, a minor, by her mother, as guardian ad litem, to establish her right to certain real property. The transcript shows that about April 21,1891, Joe Kalyton, an Indian, and a member of the Cayuse tribe, was allotted in severalty 157 acres of land in the Umatilla Indian Reservation.

Prom Multnomah: Alfred P. Sears, Jr., Judge. This is a motion to set aside a decree.

From Multnomah: John B. Cleland, Judge. Proceeding by T. W. Thompson against J. D. Hibbs and E. H. Jeter. In March, 1903, the plaintiff commenced a proceeding in the circuit coúrt for Multnomah County against the defendants jointly, to recover $205 from each of them, with interest since July 1, 1901.

<p>Mutuality of Hop Contract in Question.</p> <p>1. A contract by which one party sells and agrees to deliver to the other party a certain part of particular crops to be raised during a series of years, and such other party agrees to buy such part of said crops at a specified price, payable in certain installments, if, in the purchaser’s judgment, the condition of the crop will warrant it, and to advance each year certain amounts for cultivation, to be deducted at the time of the final payment, provided that in case of a shortage in the crop from causes beyond the control of the first party, he shall be liable to repay only the advances, is mutual and enforceable.</p> <p>Specific Performance of Sale Contract — Fraud by Vendor.</p> <p>2. A fraudulent combination between one who has contracted to sell property not yet in existence, a crop to be grown, for example, and others, to avoid compliance with the contract, is ground for equitable relief by requiring specific performance.</p>

<p>Insurance — Vacating a Fraudulent award at Law.</p> <p>1. An appraiser’s award of a loss by Are cannot be impeached for fraud in a law action.</p> <p>Piling Equitable Cross Complaint — Defense at Law.</p> <p>2. Whenever a defendant sued at law is entitled to relief arising out of material facts cognizable only in equity, lie may with his answer at law tender a cross-bill in equity, even though the answer may have contained a complete defense. In such cases the testis whether the legal defense is as adequate and complete as the one that may be aiforded in equity: B. & C. Comp, ¡S 891.</p>

<p>Mines — Sufficient Marking of Boundaries.</p> <p>1. In marking a mining location under Sections 3975 and 3976, B. & C. Comp., a failure to place monuments at the center ends of the ground claimed is a fatal omission, as is a neglect to attach to the recorded copy of the location notice an affidavit that the required improvement work has been done.</p> <p>Marking Locations — Conflict of State and Federal Laws.</p> <p>2. Sections 3975 and 3976, B. & C. Comp., requiring locators of a lode claim to establish the center end posts or monuments of the claim in a particular manner, and to attach to the copy of notice of location filed with the clerk of the county wherein the claim is situated an affidavit of proof of the work required to be done by section 3977, as conditions precedent to the establishment of a valid claim, are not in conflict with Section 2324, Rev. Stat. U. S., requiring that the location of a claim shall be distinctly marked on the ground, since the latter section does not specify how the marking shall be done, while the former supplies the omitted information.</p>

<p>Personal Injury — Allegations and Proofs — Nervous Shook.</p> <p>1. Under a general allegation of damages recovery cannot be had for injuries resulting from fright or nervous shock, those not being the usual or necessary effects of a physical inj ury.</p> <p>Personal Injury — Evidence of Nervous Condition Afterwards.</p> <p>2. In an action for personal injuries, in which no injury to the nervous system was alleged, and counsel disclaimed any intention of showing such injury as an item of damage, evidence that plaintiff had been nervous since the accident was not objeetional as relating to^an element of damage not claimed by the complaint, but is competent as tending to show her general manner and con. dition.</p> <p>Personal Injury — Inference Prom Subsequent Condition.</p> <p>3. In an action for personal injuries, in which it appears that plaintiff was strong and robust before the accident, and had been nervous since, an inference that the nervousness was the result of the physical inj ury was justified.</p> <p>Power oe Court to Require Remittitur oe Part op Verdict.*</p> <p>4. In an action for personal injuries, the court has power to order a remission of a part of the damages awarded by the verdict, as a condition of overruling a motion for a new trial.</p> <p>Power to Remit Part oe Prejudiced or Passionate Verdict.</p> <p>5. Where it clearly appears that the jury in a damage action were influenced by passion or prejudice, the error cannot be cured by remitting a part of the verdict, but a new trial mfast be granted.</p> <p>Presumption on Appeal as to Rulings oe Trial Court. ■ ,</p> <p>6. Where, in an action for personal injuries, defendant’s motion for a new trial was based on a claim of excessive damages, appearing to have been given under the influence of passion and prejudice,, and also upon the insufficiency of the evidence to justify the verdict, it must be presumed on‘appeal that an order requiring a remittitur of part of the damages assessed as a condition to denying the motion for a new trial was entered partly because of the insufficiency of the evidence, and not because the verdict was the result of pa'ssion and prejudice. ...</p> <p>Order Refusing New Trial Not appealable.</p> <p>‘ 7. An order of the trial court allbwing or overruling a motion for á new trial is not assignable as error on appeal.</p>

From Crook: W. L. Bradshaw, Judge. Action by Charles Altschul against William T. Casey relative to the ownership of real property, the plaintiff claiming through legal conveyances from the general gov-eminent, and the defendant by adverse possession. The trial resulted in a verdict and judgment for the plaintiff, and the defendant appeals.

From Harney: Morton D. Clifford, Judge. This is an action by Sarah C. Miller against the Head Camp, Pacific Jurisdiction, Woodmen of the World — a corporation organized on'the lodge plan, as a benefit society, under the laws of Colorado — to recover the sum of $1,000 on a certificate of mutual life insurance issued by it to her son, F. T. Miller, and in which she is named as the beneficiary.

From Washington: Thomas A. McBride, Judge. Suit by T. W. Thompson against B. F. Purdy. Plaintiff and defendant by their joint notes, three in number, borrowed $4,000 for the use and benefit of the Gaston Cooperative Milling Company, and plaintiff, being compelled to pay the amount due, sued the defendant for contribution.

<p>Public Lands — Prima Facie Evidence of Location of Grant.</p> <p>1. On an issue as to the exterior limits of a land grant a certified copy of a diagram from the office of the Secretary of the Interior, showing the primary limits of the grant, establishes prima facie the limits as so shown, as it comes from an office the chief official of which was charged by law with the duty of adjusting the grant, and appears on its face to have been made with reference to proper legal subdivisions.</p> <p>Idem.</p> <p>2. On an issue as to the exterior limits of a wagon road land grant, the prima facie case made by the production of a diagram from the office of the Secretary of the Interior, showing the primary limits of the grant, is not overcome by introducing a plat from the office of the Secretary of the State in which the land is situated, certified by the Governor as correctly showing the location of the road, and the testimony of a surveyor that the land in question was outside the limits of the grant as measured from the line of construction shown on the state map, for no law required the filing of any map with any state official, nor does it appear that such map was the basis of the adjustment of the grant by the United States.</p> <p>Evidence Disputing Government Patent.</p> <p>3. A government patent is presumptive evidence that the land department of the United States had authority to issue it and that such power was rightfully exercised, and to overcome this presumption clear and convincing proof is required.</p>

From Umatilla: William R. Ellis, Judge. Louis Anderson seeks by this action to recover from the Oregon Railroad and Navigation Company damages for loss of wheat by fire while in storage in a warehouse at Cayuse Station, in Umatilla County, which it is alleged was caused by the negligence of defendant in the operation of a train of cars.

<p>Vendor and Purchaser — Time as Essence of the Contract.</p> <p>1. Time of payment is not of the essence of a contract for the sale of real estate in equity, unless made so by express agreement of the parties, by the nature of the contract itself, or by the circumstances under which the contract was executed.</p> <p>Specific Performance of Contract to Convey — Delayed Payment.</p> <p>2. Specific performance of a sale of real estate will ordinarily be compelled, though the purchase price was not paid or tendered at the exact time fixed, when the party seeking performance has acted in good faith, and with reasonable diligence, unless there has been a change of circumstances affecting the equities of the parties.</p> <p>Delivery of Escrow Deed — Rights of Subsequent Purchaser.</p> <p>3. Where, under a contract for the sale of real estate, the deed was deposited in escrow, to be delivered on payment of the price after examination of the title by the purchaser’s attorneys, and there was no understanding or stipulation that the deed should not be delivered unless the price was paid on a particular day, and no attempt was made to withdraw the deed before the conditions of the deposit had been complied with by the grantee, title passed to such grantee on delivery of the deed as against a purchaser from the grantor after the deed was delivered.</p>

From Columbia: Arthur L. Frazer, Judge. Suit by James Muckle, Jr., and Charles Muckle against James Good to quiet- the title to certain land. From a decree for defendant plaintiffs appeal.

<p>Equity — Decebe on Appeal — Res Judicata.</p> <p>1. Under B. & C. Comp, g 406, providing that, on an .appeal from a decree in equity, the case shall be tried de novo and a final decree entered by the appellate court, without reference to the findings of fact or conclusions of law of the trial court, the rights of the parties and the questions adjudicated must in subsequent litigation ho ascertained from the decree on appeal, and not from that of the court below.</p> <p>Equity Cases on Appeal — Value of Findings and Conclusions.</p> <p>2. In equity under the Oregon practice as prescribed by Sections 406 and 555, B. & C. Comp., a suit is tried anew on appeal on the transcript and evidence, without reference to the findings or conclusions of the trial court, the appeal being from the decree.</p> <p>Res Judicata.</p> <p>3. A suit or j udgment between parties upon a different claim from one in question is an estoppel as to those matters only that were formerly actually determined.</p> <p>This rule is thus illustrated: Plaintiff sued to enjoin defendant from trespassing on or interfacing with its possession of certain land, alleging that defendant went into possession as the agent and servant of plaintiff and afterwards wrongfully took possession in his own behalf. The trial court issued a preliminary injunction, but on trial found tliat, when defendant entered on the land, it was unsurveyed public land which he intended to enter as a homestead, and that, though the entry was by the advice of plaintiff, it was not under any contract with it, and that defendant did not hold possession for plaintiff’s benefit, or as its agent or employs. A decree was entered dismissing the suit and vacating the preliminary injunction. On appeal the court found that there was no error, and decreed that the decree below be affirmed, the temporary injunction dissolved, and the suit dismissed. The opinion rendered showed that the supreme court concluded that the defendant did enter into possession under the contract alleged in the complaint, but was of the opinion that this contract was illegal and void, and the decree below was affirmed on this ground. Held that, as affirmance of the trial court’s decree did not involve approval of its conclusions of fact, the decree on appeal was not res judicata as to defendant’s right to recover from plaintiff the value of hay cut from the premises by plaintiff during the pendency of the preliminary injunction.</p> <p>SOUECE OF POWEE OF ESTOPPEL BY JUDGMENT.</p> <p>4. Though, generally speaking, the force of an estoppel by judgment may be said to reside in the decree and not in the reasons for it, still, if the decree relied upon is ambiguous, the opinion given in connection with itmay be examined to determine just what was decided, in considering the effect of the decree as res judicata: for instance, a decree on appeal in a suit in equity that the decree of the lower court be affirmed, and that appellant is not entitled to the relief prayed for, and that the complaint is without merit and should be dismissed and a temporary injunction issued by the court below dissolved, is ambiguous, so as to justify examination of the opinion to determine what point was actually decided.</p>

<p>Cross-Examination — Explanatory Matter.</p> <p>1. All the facts relating to a material question should be brought out if they are desired: for instance, in an action for conversion of a building claimed by both parties, it having been shown as an admission against Interest that plaintifi had possession of the house and sold It, and that d fendant then leased it from the vendee, defendant is entitled to explain his action.</p> <p>Creation of Relation of Landlord and Tenant.</p> <p>2. In view of Section 253, B. & C. Comp., which entitles a purchaser of realty at an execution sale to immediate possession, an agreement between such a purchaser and the former owner that the latter may retain possession at a stipulated rent, with the privilege of redeeming after the statutory period for so doing has expired, creates the relation of landlord and tenant between them.</p> <p>Right of Tenant to Remove Fixtures After Ouster.</p> <p>3. A tenant who has been wrongfully ousted from his leased land may reenter within a reasonable time, which will be determined from the circumstances, and remove his improvements, not inj uring the freehold.</p> <p>Trover by Tenant Against Landlord.</p> <p>4. Trover may be maintained by a tenant against his landlord for the seizure .and conversion of chattels left upon his having been wrongfully evicted from the leased premises.</p> <p>Limitation in Trover Actions.</p> <p>5. Trover by a tenant whose landlord wrongfully evicted him and converted sundry of his chattels on the premises is barred only by the general statute of limitations.</p> <p>Measure of Damages in Actions of Trover.</p> <p>6. The measure of damages in trover for conversion of an article which has been returned to and accepted by plaintiff, when special damages are not alleged, is the value of the property at the time of the conversion, with interest thereon to the trial, less its value when returned, with interest thereon from that date, and not the value of its use while in defendant’s possession.</p>

From Benton: James W. Hamilton, Judge. This is an action by the United Brethren First Church of Eugene against J. L. Akin and the sureties on his official bond as an executor to recover the amount decreed by the probate court as due on its claim against the estate of which Akin had charge. Further facts appear in the opinion. There was a judgment for plaintiff and defendants appeal.

From Morrow: William R. Ellis, Judge. Action by W. H. Goltra, executor of tbe estate of Hugh Fields, deceased, against Jane Penland, executrix of the estate of William Penland, deceased. This action' wás commenced September 28, 1901, by Hugh Fields against the executrix of tbe estate of William Penland, deceased, to recover the value of certain sheep alleged to have been converted by Penland to bis own use.

From Multnomah: Melvin C. George, Judge. . This is an action in tort by P. M. Massey against M. Seller and others, arising on account of the alleged negligence of the defendants in maintaining an elevator or hoist in their store building for the purpose of transferring merchandise from one floor to another.

<p>Judgment Lien — Defective Docketing.</p> <p>1. Where a j udgment did not become a lien on real property because the j udg merit docket did not show the date when it was entered therein, the filing of a transcript of such docket entry in another county did not create a lien on realty of the judgment debtor in such other county.</p> <p>Feaud of Plaintiff as a Defense in Ejectment.</p> <p>2. In an ejectment action by a fraudulent grantee of the land against a purchaser under a subsequent j udgment, the fraud is a defense, the purchaser having obtained the legal title subject to the record of the fraudulent deed.</p> <p>Equitable Cboss-Bill — Fea udulent Deed —Remedy at Law.</p> <p>3. While the fact that a certain conveyance of real estate was fraudulent as to the grantor’s creditors is available as a defense-at law, such defense would not relieve the land from the fraudulent deed as a cloud on the title, and the defendant in the action at law is entitled to file a complaint in equity in the nature of a cross-bill, as authorized by B. & O. Comp. § 391, to have such conveyance vacated on that ground, the law remedy being incomplete and inefficient in comparison with the equitable one.</p> <p>.AFFIRMANCE FOR FAILURE TO FILE BRIEF —RULES OE COURT.</p> <p>4. A delay of three days in filing a brief, though unexplained, will not require an affirmance for failure to comply with the rule of court, where the appeal is evidently prosecuted in good faith.</p> <p>Standing in Equity oe Execution Purchaser — Fraudulent Deed.</p> <p>5. An execution having been issued on a j udgment from the county in which it was originally docketed, levied on land in another county, and a sale had thereunder, and such sale having been confirmed and a sheriff's deed issued, the holder under such á title has a right in equity to attack a previous transfer by the debtor as being fraudulent.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Bean. Joseph Lemmons, by his guardian ad litem, brought an action in a justice’s court to recover the value of three and a half tons of hay alleged to belong to him, which it was averred the defendant wrongfully and unlawfully converted to his own use. The cause came on for trial before a jury March 16, 1903.

<p>Accrual op Cause op Action.</p> <p>1. A cause of action accrues when the owner thereof becomes entitled to sue on it, and not before.</p> <p>Boat Lien — Right to Sue — Limitations.</p> <p>2. Under Section 5722, B. & C. Comp., declaring that actions to enforce Ileus on boats constructed In this State shall be commenced within a stated time after “the cause of action shall have accrued,” the right to sue is complete when the material or labor is to be paid for, and not when it is furnished.</p>

<p>Vacating Appellate Decb.ee — ambiguous Pleadings.</p> <p>When the pleadings are ambiguous, and do not clearly define the rights insisted upon, and one of the parties has been misled to his prej udice by failing to offer testimony, a decree will be vacated to give an opportunity for the introduction of further testimony.</p>

From Harney: Morton D. Clieeord, Judge. Suit by Louis Woldenberg against Christian Berg for the dissolution of a partnership and an accounting. Plaintiff appeals. The case was submitted on briefs under the proviso of Rule 16 of the Supreme Court: 35 Or. 587, 600.

From Coos : James W. Hamilton, Judge. Suit by Florence Sheridan and others against Empire City to quiet the title to certain real property, resulting in a decree for plaintiffs, from which defendant appeals.

From Marion : George H. Burnett, Judge. This is an action by G. D. Trotter against the Town of Stayton to recover possession of a strip of land twelve inches wide off the north end, and a strip six and one half inches wide off the east side, of the north half of lots 5 and 6, in block 5, in the Town of Stayton, and damages for withholding the same.

From Coos: James W. Hamilton, Judge. Action by W. E. Baines against the Coos Bay, Roseburg & Eastern Railroad and Navigation Company, on sundry promissory notes. The court directed a verdict for defendant, from which plaintiff appeals.

From Multnomah: John B. Cleland, Alfred F. Sears, Jr., Arthur L. Frazer, and Melvin C. George, Judges, in joint session.

From Coos : James W. Hamilton, Judge. Suit by the Flanagan Estate, a corporation, against the Great Central Land Company and others.

From Multnomah : Arthur L. Frazer, Judge. John Eggleston was convicted of adultery and appeals. For the State there was a brief over the names of Andrew M. Crawford, Attorney General, John Manning, District Attorney, Arthur Spencer, and Robert G. Morrow, with an oral argument by Mr. Morrow.

From Marion : Reuben P. Boise, Judge. The plaintiff, Elizabeth McFarlane, on February 24, 1899, commenced a suit against defendantfor divorce, and, having procured service of summons by publication, took a decree for divorce, a third of his real property, the care and custody of the minor children, and for costs and disbursements.

From Multnomah : Melvin C. George, Judge. The State appeals from an order arresting judgment after a conviction of H. L. Briggs for conducting a barber school without a license. The ground of the decision of the trial court was that the act establishing a board of barber examiners is unconstitutional.

From Clackamas: Thomas A. McBride, Judge. Suit for an injunction by August Krause against the Oregon Iron & Steel Company, resulting in a decree as ■ prayed for, from which defendant appeals.

<p>Surprise —Judgment Contrary to Stipulation.</p> <p>1. A judgment rendered against a party in pursuance of but contrary to a stipulation is a proceeding taken against him by surprise within the meaning of Section 103, B. & C. Comp., authorizing the court to relieve a party from such a judgment.</p> <p>Trover — Interest as Damages.</p> <p>2. The measure oí damages in an action of trover is the value of the property at the time of the conversion, with interest from such date, the interest being eon., sidered an item of damages.</p> <p>Trover — Effect of Stipulation.</p> <p>3. In an action for conversion, being one of a series of similar cases, plaintiff's right to interest from the date of the conversion is not affected by a stipulation that the case in question shall await the outcome of a test case of the series whereupon judgment shall be entered accordingly, the effect of such agreement not being to fix the time when interest shall begin, but only the fact of conversion.</p>

From Multnomah: John B. Cleland, Judge: Frankie Woolridge appeals from a conviction of perjury. I. The indictment does not show that the county clerk had any authority to administer the oath to defendant in said proceeding of Roberts against the publishing company. The authority to swear a witness during a trial is a very different thing from authority to administer an oath in proceeding to take a deposition out of court, and in the latter case his authority must be stated.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Wolverton.

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Martin V. Leasia appeals from a conviction of murder in the second degree.</p>

<p>Telegram — Right of Action of Addressee.</p> <p>1. The addressee of a telegram may sue for damages caused by the failure to deliver it only when it is for his honelit and the telegraph company knows, or is chargeable with knowledge of, that fact.</p> <p>Nature of Business of Telegraph Company.*</p> <p>2. A telegraph company is a public service corporation and must, under penalty of damages, and with reasonable promptness, transmit and deliver messages to or for those for whose benefit they are sent.</p> <p>Extent of Liability for Delayed or Changed Telegrams.</p> <p>3. " The damages recoverable for delays in delivering telegrams, or for changes in cipher dispatches, are such as must have reasonably been expected to result from the breach of the contract, unless the company is informed of their nature or importance.</p> <p>Case Under Consideration.</p> <p>4. A telegram addressed to a firm of real estate brokers: “See S. Take his last offer. Wire me at F.” — does not show that it was for the benefit of the addressees, and hence, in the absence of any other notice to the telegraph company that such was the case, the addressees cannot sue for failure to deliver it.</p>

<p>Tax Deed — Eepect op Statute in Force at Time op Sale.</p> <p>1. A tax deed is to be construed with reference to the statute in force when the tax sale was made, unless a subsequent statute has been made retrospective*</p> <p>Assessment op Unoccupied Land —Statutes.</p> <p>2. Hill’s Ann. Laws, § 2735, provided that unoccupied land, if the owner was unknown, should be assessed as such, without inserting the name of the owner; and section 2775 declared that unoccupied land liable to taxation, when the owner was unknown, should be described, and the value thereof set down separate from other assessments, and the value thereof designated. Held, that the words “as such,’’ in section 2735, referred to unoccupied land, and not to unknown owner, and, that said sections, construed together, required that unoccupied land, if the owner was known, should be assessed in the usual way to the owner and under his name; but unoccupied land, if the owner was unknown, could not be assessed at all. An assessment of land to “unknown owner,’’ without a further designation as unoccupied was void.</p> <p>Estoppel to Deny Validity op Tax.</p> <p>3. A grantee of land under a deed subject “to all unpaid taxes and sales for the same,’’ is not thereby estopped to deny the validity of a previous tax sale, where the assessment on which the sale was based was wholly void.</p> <p>Allegations and Proops —Issues in Pleadings.</p> <p>4. Cases must be tried and decided on the issues made by the pleadings. Courts cannot undertake to pass on matters not thus involved ; for instance, in a suit to remove a cloud on title, plaintiff not having claimed in the pleadings for improvements placed on the land, he is not entitled to recover for such improvements on his title being declared void.</p>

<p>Waiver oe Objection to Deposition — Construction oe Stipulation.</p> <p>1. A stipulation consenting to the use of a typewritten copy of the testimony of certain decrepit witnesses instead of the original, is not a waiver of proof that the witnesses were still infirm and unable to appear, which Section 840, B. & C. Comp., requires to be shown before such depositions can be used.</p> <p>Presumption oe Continued Infirmity oe Witness.</p> <p>2. The provision of Section 840, B. & C. Comp., that before the deposition of an infirm witness can be used, it must be shown that the infirmity continues, is not affected by the presumption of the continuauce-of things once shown to exist, declared by B. & C. Comp, g 783, subd. 33, so that before such depositions can be read proof of continued infirmity must be made.</p> <p>Presumption as to Eeeect oe Error.*</p> <p>3. Error is presumptively prejudicial and is ground for reversal unless it affirmatively appears from the record that it was harmless.</p>

<p>Executor de son Tort — Statutory Change of Common-Law Rude.</p> <p>1. The effect of the enactment of Section 385 of B. & C. Comp, has been to so change the common-law rule as to the liability of an executor de sou tort that he is now liable only to the legal representative of the deceased for' the results of his interference.</p> <p>Set-off in Favor of Executor de son Tort.</p> <p>2. An heir who acted as administrator of his ancestor’s estate under an appointment void because made in the wrong county, if he is afterward sued for conversion by the rightful administrator, may set-off such sums as he has paid out of the estate for its benefit.</p> <p>Executor be son Tort — Cross-Bill—Adequate Law Hemeby.</p> <p>3. In an action for conversion by a legal representative of a decedent against an executor de son tort the latter may show as an off-set under the general issue such payments made by him officially .as the lawful representative would have been bound to make, and he therefore has an adequate remedy at law, so that he cannot maintain a cross suit in equity to recover the value of his expenditures.</p> <p>ACCOUNTING WITH EXECUTOR BE SON TORT —ITEMS DlSALLOWEB.</p> <p>4. An administrator de son tort is not entitled on an accounting to an allowance for sums paid to a.surety company for becoming surety on his bond, or for appraisers’ and justices’ services in taking acknowledgments, nor for services rendered by him or his attorneys, unless such services were rendered in the preservation of the property of the estate, and were conducive to its benefit.</p> <p>Ibem.</p> <p>5. On an accounting by an executor de son tort, he is not entitled to any'fees as executor, and if the fees have been paid they must be returned, such executor being liable to the de jure executor therefor.</p>

From Multnomah: Arthur L. Frazer, Judge. Action by John Allesina against the London & Liverpool & Globe Insurance Company on a policy of fire insurance. There was a judgment for plaintiff on a trial before the court, and defendant appeals.

From Multnomah : John B. Cleland, Judge. Action by Mollie Wolf, as administratrix of the estate of Isaac Wolf, deceased, against the City & Suburban Railway Company. Defendant appeals from a judgment of $500 for plaintiff. Two opinions were written in the case, the first by Mr. Justice Bean, and the one on rehearing by Mr. Chief Justice Moore. Statement by Mr. Justice Bean.

From Douglas: Jambs W. Hamilton, Judge. Suit by W-illiam Kroll and another against William Coach in which there was a decree for plaintiffs. Defendant appeals. I. Courts of equity in this country have no concurrent jurisdiction in cases of fraud where the remedy at law is adequate and complete: Stoiy, Eq.

<p>Blacksmith as Fellow Servant With a Helper.</p> <p>1. A blacksmith merely working in a machine shop for wages, and not intrusted with any duty toward other employés, is a fellow servant with a helper of another blacksmith at another forge. •</p> <p>Need of Pleading Negligence of Fellow Servant.</p> <p>2. Under Section 72 of B. & 0. Comp., requiring an answer to contain a general or specific denial of every material allegation controverted by defendant and a statement of any new matter constituting a defense or counterclaim, a defense that an injury complained of was the result of the negligence of a fellow servant, is new matter which defendant must plead, in order to render the same available.</p> <p>Effect of Negligence of Fellow Servant — Nonsuit.</p> <p>3. If it clearly appears from the testimony offered on behalf of the plaintiff in a personal injury case that the injury resulted from the negligence of a fellow servant the court should enter a nonsuit, though that defense is not pleaded, since it is thereby apparent that plaintiff has not a cause of action.</p> <p>Instruction on Issues Not Made by Pleadings.</p> <p>4. In an action for pei’sonal injuries, an instruction is erroneous which permits a verdict for defendant, if the in j ury resul ted from the negligence of a fellow servant, where that defense is not pleaded.</p>

<p>Appeal —Time for Taking — Date of Final Order.</p> <p>An appeal from the final order in a case must be taken within the time limited after the date of that order and not from the date of some subsequent order, as, for example, the order settling the costs.</p>

<p>From Polk: Reuben P. Boise, Judge.</p> <p>Suit for an injunction by J. W. Meyer against T. A. Livesley & Co. and John Vincent, resulting in a decree as prayed for, from which Livesley & Co. appeal.</p>

<p>Appeal —Necessary Interest of Appellant — Substitution.</p> <p>1. In view of Section 38, B. & C. Comp., providing that no action shall abate by the death or disability of a party, or by transfer of any interest, if the cause of action survive or continue, and that, in case of death or other disability, the court may within a year allow the action to be continued by or against the personal representatives or successor in interest, a change of the interest of a party after judgment does not affect a pending appeal, and no substitution is necessary.</p> <p>Satisfaction of Judgment — Effect of on Appeal*</p> <p>2. Before a.satisfaction of a judgment can operate as an abandonment of an appeal it must clearly appear that the compliance with the final order was voluntary.</p> <p>Bill of Sale as Mortgage —Replevin —Allegations and Proofs.</p> <p>3. In replevin for chattels in which plaintiff claims an interest under a mortgage, the conditions of which have been broken, proof of such facts may be made under an allegation of absolute ownership.</p> <p>Bill of Sale as Mortgage — Form of Execution.</p> <p>4. Under the provisions of Section 5630, B. & O. Comp., requiring that instruments intended to operate as chattel mortgages “ shall ” be executed, witnessed, and acknowledged as conveyances of real property, such instruments must be so acknowledged or they are defective.</p> <p>Ambiguous Instruction.</p> <p>5. An instruction that, if the instrument under which plaintiff claimed was intended as a mortgage, the jury should so find, was not fatally ambiguous by reason of the fact that it was impossible to say whether they were required to make a special finding, or whether they should find for plaintiff or defendant.</p> <p>Replevin Against Sheriff — Effect of Application of the Property to Payment of the Claim Asserted by the Sheriff.</p> <p>6. An officer seizing property under a writ can assert only the right to apply it to the payment of the claim on which the writ is based, and if that has been accomplished by another proceeding, the officer is not entitled to further possession. If he has been sued for it in replevin, he is entitled to only costs if he wins after the property has been so applied.</p>

<p>Forcible Detainee — Appeal to Supreme Court.</p> <p>1. Under Section 548 of B. & C. Comp., which provides thatany party to a final order may appeal therefrom to the supreme court, either party to a judgment In a forcible entry and detainer action In the circuit court may appeal therefrom.</p> <p>Dismissing Appeal.</p> <p>2. The question of plaintiff’s right to appeal to the circuit court from a justice’s j udgment is one for the circuit court to pass upon in the first instance, and its decision may be reviewed on appeal in a proper case, but the validity of that appeal cannot be raised on a motion to dismiss the appeal from the j udgment of the circuit court.</p> <p>Parol Lease — Statute of Frauds.</p> <p>8. A parol agreement to lease real estate for more than a year is void under the statute of Oregon: B. & C. Comp. § 797, subds. 1 and 6.</p> <p>Estoppel to Dent Oral Lease.</p> <p>4. A parol promise to lease certain real estate for a term of years, on which a party has relied in purchasing a stock of goods on the premises, is a mere promise as to future action with respect to a right to be acquired under an agreement not yet made, and does not estop the landlord from denying the validity of such contract under the statute of frauds.</p> <p>Specific Performance of Oral Promise to Lease.</p> <p>5. A tenant having entered into possession of certain premises under an unexpired lease to his vendor, and paid an extra price for the fixtures and made valuable improvements in reliance on the landlord’s oral promise to give a written lease for a period exceeding one year, is not entitled to enforce the agreement in equity, since he did not enter under the agreement, or partly perform it, the landlord having refused to recognize his agreement before the expiration of the term of the vendor: Wallace v. Scoggins, 18 Or. 502, distinguished.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by. Mr. Justice Wolverton. This is an action by Hibbard, Spencer, Bartlett & Co. against Phillip Stein to recover possession of cei'tain personal property intrusted to one Joe Diener as samples for use while engaged as a traveling salesman for the plaintiff.

<p>Appeals From Justice’s Courts — Supplying Diminished Records.</p> <p>1. The authority of circuit courts in Oregon to correct records in cases appealed from justice’s courts, or to supply omissions from such records, not being controlled by statute, is found in the inherent power of superior courts to control inferior tribunals, and is discretionary.</p> <p>Discretion in Supplying Diminished Record</p> <p>2. Though a superior court may, on its own motion, award a certiorari to a justice s court to correct a transcript on appeal, when an inspection thereof discloses that important parts of the record have been omitted, the general rule is that it will not do so when by failure or neglect of the appellant the transcript is too imperfect to show affirmatively the grounds of error relied upon.</p> <p>Idem — Discretion—Case in Question.</p> <p>3. Where a transcript on appeal from a justice disclosed that the original papers filed with the justice as exhibits were not attached, but no affidavit was filed by appellants showing that'the omissions were injurious, or attempting to excuse their neglect, or disclosing when they first became aware of the fact, it was notan abuse of the circuit court’s discretion to refuse a motiop to permit an amendment of the record.</p> <p>When and for What Purposes Circuit Court Acquires Jurisdiction of a Case Appealed From a Justice’s Court.</p> <p>4. Under Section 2246, B. & C. Comp., providing that when 'a transcript from a justice’s court is filed in a circuit court the appeal is to be deemed perfected, the circuit court acquires jurisdiction for all purposes with full power to supply defective records when a transcript has been filed following a sufficient notice of appeal and a bond, though such transcript does not contain all that the statute requires.</p> <p>Justice’s Courts —Costs on Dismissing Appeal.</p> <p>5. After a circuit court has acquired j urisdiction of a case appealed from a j ustice’s court it may give j udgment for costs on dismissing the appeal.</p>

From Multnomah: John B. Cleland, Melvin C. George, and Alfred F. Sears, Jr., Judges, in joint session. Statement by Mr. Justice Bean. Suit by F. E. and L. A. Harlow against the Oregonian Publishing Company and H. L. Pittock.

From Lane: James W. Hamilton, Judge. Action by George W. Scott and H. A. Hammond, as executors of the last will and testament and estate of Church Sturtevant, deceased, against Eva Ford, formerly Eva Stephens.

<p>Liability oe Subscribers eor Unpaid Stock Subscriptions.</p> <p>1. Under Const. Or. Art. XI, g 3, making stockholders liable for the debts of a corporation to the amount of their stock subscribed and unpaid, and B. & C. Comp, g 5065, providing that all sales of stock shall subject the purchaser tp the payment of any balance due on the stock, a stockholder in an insolvent corporation is liable for the debts of the corporation to the extent of the unpaid part of his subscription, his liability being an asset of the corporation which may be reached by a suit in equity.</p> <p>Right to Pay Stock Subscription With Property.</p> <p>2. In the absence of a constitutional or statutory inhibition, the directors of a corporation may receive property in payment for stock in any case in which they are authorized under the articles of the corporation to purchase for the benefit of the corporation; but where they do so the property received must be equa in worth to the par value of the stock thus paid for.</p> <p>Doctrine oe Trust Fund as to Unpaid Stock Subscriptions.</p> <p>3. While it is a going concern a corporation may dispose of its assets, including the sums received on stock subscriptions, the corporate charter permitting, and no trust arises with reference thereto; but when insolvency occurs all assets, including unpaid subscriptions, become trust funds for the benefit of creditors.</p> <p>Corporations —Fraud in Paying Stock Subscriptions With Overvalued Property — Suit by Creditors.</p> <p>4. A payment of stock subscriptions with property may be attacked by creditors for either actual or legal fraud — the result is the same in both cases, the manner of proof, only, being different.</p> <p>Elements in Determining Good Faith oe Directors Who Accept Property in Payment eor Stock Subscriptions</p> <p>5. In determining whether the directors of a corporation were guilty of fraud in taking property in exchange for stock, it is competent to consider the nature of the property, the purposes for which it was accepted, and all the circumstances attending the transaction; and, if it appears that they have acted in good faith, and that an overvaluation may have been due to an honest error of judgment’ their acts are conclusive.</p> <p>Liability of Stockholders foe Difference Between Subscription and Amount Paid by Overvalued Property.</p> <p>6. Where stock is issued by directors for property taken at an overvaluation, It is competent, at the instance of creditors, to compel the stockholders to respond with money for the difference between the actual value of such property and the par value of the stock.</p>

<p>From Harney: Morton D. Clifford, Judge.</p> <p>Francis M. Teller appealed from a conviction of larceny.</p>

From Union: Robert Eakin, Judge. Statement by Mr. Justice Bean. This is a suit by George W. Ruckman against the Union Railway Company and the Union Street & Suburban Railway Company. In January, 1893, the Union Railway Company issued and delivered to J. W. Shelton twenty bonds, of the par value of $1,000 each, secured by mortgage on its property. Shelton sold four of the bonds, and they came into the hands of F. L. Richmond and W. T. Wright.

From Baker: Robert Eakin, Judge. George W. Breaw was indicted for forgery, and from an order denying his motion for an immediate trial on certain of the indictments at the term at which they were returned, or for the dismissal thereof, he appeals.

<p>From Multnomah: Arthur. L. Frazer, Judge.</p> <p>Action by Frederick D. Macdonald, administrator of the estate of Maurice R, Macdonald, deceased, against Drake 0. O’Reilly. From a judgment for plaintiff, defendant appeals.</p>

<p>Admissibility of Confessions — Practice.</p> <p>1. The determination of the court on a criminal trial that a confession of defendant was obtained from him without the influence of hope or fear exercised by a third person, will not be disturbed on review unless there is clear and manifest error.</p> <p>Arson — Corpus Delicti — Corroboration of Confession.</p> <p>2. On a prosecution for arson, where the building described in the indictment is conceded to have been burned, and there is some evidence that it was of incendiary origin, the corpus delicti is sufficiently shown to render defendant’s confession admissible.</p> <p>Limiting Argument of Counsel —Constitutional Right to Time for Full Presentation of Case.*</p> <p>3. The right to a full hearing of his case by counsel being secured to every defendant by Section 11 of the Oregon Bill of Rights and the Sixth Amendment to the Constitution of the United States, the trial court cannot arbitrarily limit the time for argument in a criminal case to a period within which no fair or comprehensive review of the evidence can be given — though it is the right of the trial judge to exercise such a supervision over the argument as will prevent an abuse of the right guaranteed.</p> <p>Example of Abuse of Discretion in Limiting Argument.</p> <p>4. When a criminal trial has required three days, during which twenty witnesses were examined and fifty exhibits were introduced, the evidence being circumstantial and conflicting, it is reversible error to limit defendant’s counsel to only one hour in argument.</p>

From Douglas: Jambs W. Hamilton, Judge. Suit by H. Wollenberg, as administrator of the partnership estate of S. Marks & Co., against J. F. Rose to compel specific performance of a contract to buy certain land. On a former appeal it was decreed that plaintiff was under obligation to give to defendant a good and sufficient deed such as will convey the legal title: 41 Or. 314, 318 (68 Pac. 804). Plaintiff then tendered a title, which was refused.

<p>From Harney: Morton D. Clieeord, Judge.</p> <p>This is a suit to establish a trust in land. J. D. Billingsley having commenced an action against the Pacific Livestock Company, a corporation, to recover possession of section 2, and the southeast quarter of section 3, in township 34 south of range 34 east, in Harney County, the latter pleaded that it was in possession thereof as a tenant of Jennie Devine, plaintiff herein, who, on application therefor, was substituted asa party defendant, and, having filed an answer therein, alleging that she had ho defense at law, but was entitled to relief arising out of facts material to her defense, and requiring the interposition of a court of equity, thereupon, as plaintiff, filed a complaint in the nature of a cross-bill, averring, in substance, that in 1891, and prior thereto, John S. Devine, her husband, purchased and paid the full consideration for certain real property, including the premises herein-before described, causing the deeds therefor to be executed to the defendant, to secure the payment of a debt due him ; that her husband died intestate September 13, 1901, leaving her his sole heir, and, his estate having been duly administered, the real property involved herein was distributed to her; and that the debt due from her husband to the defendant has been fully paid, but he refuses to reconvey the premises to her. The answer denied the material allegations of the complaint, and averred that defendant, complying with the provisions of the statutes of the United States, secured the legal title to 960 acres of land, which he conveyed to one Henry Miller, at the request of and upon agreement with Devine that he should receive in exchange therefor lands of equal value; that, in' pursuance of such contract, and in payment for services rendered by the defendant for Devine, it was stipulated, on a settlement of their business, that the 800 acres sought to be recovered in the action of ejectment should belong to him, and also agreed that in consideration of the improvement of the premises, and of the payment of the taxes thereon by Devine, he was to have possession thereof, which he held at the time of his death. The reply having put in issue the allegations of new matter in the answer, a trial was had, resulting in a decree enjoining further prosecution of the law action, declaring that defendant held the legal title to the land in controversy in trust for the plaintiff, and requiring him to execute to her a deed thereof, and he appeals. The case was submitted on briefs under the proviso of Rule 16 of the Supreme Court: 35 Or. 587, 600.</p>

From Multnomah.: Arthur L. Frazer, Judge. These were actions by John Allesina against the above named insurance companies on sundry fire insurance policies, resulting in judgments for plaintiff, from which these appeals are taken.