Volume 46 — Oregon Reports

<p>From Umatilla: William R. Ellis, Judge.</p> <p>Suit by E. L. Smith against A. Nelson and the sheriff of Umatilla County to enjoin a sale under a decree. From an order granting the desired relief defendants appeal.</p>

<p>From Umatilla: William E. Ellis, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>Suit by the Little Walla Walla Irrigation District, a municipal corporation, against O. N. Preston and others. The plaintiff is a public corporation organized under the irrigation district law of 1895 (Laws 1895, p. 13), and embraces a section of territory about two miles square, which is and was at the time of plaintiff’s organization owned by sundry persons, and divided into small holdings. The Little Walla Walla Eiver enters the district from the south, and, as it flows north through it, divides into numerous channels or branches, the waters of which were used by the landowners prior to the organization of the plaintiff for irrigation and domestic purposes, under a claim of right. The plaintiff, without acquiring by purchase, condemnation, or otherwise, any of the water rights of the settlers within its boundaries, proceeded, through its board of directors and officers appointed by it, to ascertain and determine in the manner provided in its by-laws the quantity of water to which, in its opinion, each landowner was entitled, and to designate the character of head gates, weirs, and dams which should be used for the division and distribution of the water of the river to each parcel of land to be irrigated therefrom, and in general undertook to regulate and control the use thereof. The defendants, who are settlers within the boundaries of plaintiff district, refused to acquiesce in the division and distribution of the water as made by the plaintiff, or to comply with its rules and regulations in reference thereto, but claimed the right to a larger quantity than that allowed them by it. This suit was thereupon commenced to enforce the orders and decisions of plaintiff as to the distribution and division of the water to the defendants. The complaint was dismissed, and the plaintiff appeals.</p>

<p>From Wallowa: Kobert Eakin, Judge.</p> <p>Statement by Mr. Justice Wolverton.</p> <p>This is a suit by F. P. Tinsley against B. M. Lombard and others to foreclose a mortgage. The mortgagors suffered default, and only Lombard defended. J. C. McAllister and wife gave a mortgage to the Lombard Investment Company, providing, among other things, that the mortgagors should pay the taxes on the mortgaged premises, but if not so paid, then that the mortgagee might pay the same and add the amount thereof to the mortgage debt. Subsequently the mortgage and the obligations which it was given to secure were duly assigned and set over to the plaintiff. On the same day of the execution of plaintiff’s mortgage, McAllister and .wife gave two other mortgages to the.</p> <p>Lombard Investment Company, covering tbe same premises, one of them, however, including a ten-acre lot additional, which mortgages and the obligations secured thereby have since come into the hands of the defendant Lombard by due assignment and transfer. The plaintiff instituted this suit to foreclose his mortgage, making Lombard a party defendant with others. Among other allegations of the complaint is the following: “That the defendants herein have, or claim to have, some right, title, or interest in or to the said premises, the nature of which is to plaintiff unknown; but whatever the same may be, it is inferior in right, and subsequent in time, to the mortgage lien of this plaintiff upon said premises.” Without denying or in any manner controverting .any of the allegations of the complaint, Lombard interposed two further and separate answers, which he denominates, “cross-complaints,” setting up his mortgages, which he prays shall be declared liens upon the premises described in plaintiff’s mortgage, second, subsequent, and subject to such mortgage, but a first lien upon the ten-acre lot not included therein; that defendant’s said mortgages be foreclosed; and that the equities of the parties be adjusted, and the assets marshaled accordingly. Plaintiff demurred to these answers on the ground that defendant had not commenced his suits to foreclose within the time limited by the Code of Civil Procedure, which demurrers were sustained, and, defendant refusing to plead further, a decree was entered for plaintiff, foreclosing all right or interest of the defendant in the premises comprised in plaintiff’s mortgage, from which he appeals. The case was submitted under the proviso of Buie 16: 35 Or. 587, 600.</p>

<p>Larceny Prom the Person — Assault—Lesser Offense.</p> <p>1. Under an information charging an attempt at larceny from the person By assaulting and pocket picking a conviction of simple assault is permissible, under Section 1418 of B. & C. Comp.* Whether an assault ■is necessarily included in an attempt at larceny from the person is not decided.</p> <p>Punishing Larceny by Confinement With Hard Labor.</p> <p>2. Under a statute prescribing a penalty of imprisonment in jail (such as Section 1772, B. & C. Comp.), a further condemnation to hard labor is illegal.</p> <p>Information — Surplusage.</p> <p>3. In construing a sentence of imprisonment accompanied 'by "hard labor,” this additional penalty cannot be rejected as surplusage, as it is a definite qualification of the judgment pronounced, and its rejection will'materially change the punishment.</p> <p>Power of Supreme Court to Correct Criminal Judgment.</p> <p>4. A conviction being regular, a defendant is not entitled to a new trial because of a material error in punishment, but the ease should be remanded to the lower court to impose a lawful sentence. The supreme court cannot correct the judgment, but it -may direct the trial court to enter an .authorized judgment.</p>

From Union: Robert Eakin, Judge. Statement by Mr. Justice Wolverton. This is an action by H. Maynard for a personal injury alleged to have been- caused by the negligence of the Oregon Railroad & Navigation Co., its agents and employees, in suffering and permitting a moving passenger train of cars, upon which plaintiff was being carried as a passenger, to come.into collision with a freight train.

<p>Friom Union: Bobert Eakin, Judge.</p> <p>•Woodson Gray appeals from a second conviction of the crime of manslaughter. ■</p>

<p>Fees of Justices Acting as Committing Magistrates.</p> <p>1. Under Section 1583 of B. & C. Comp., declaring justices of the peace to be magistrates, Section 1582, defining the office of magistrate, and Section 3000, • fixing the fees of justices, the fees thus prescribed relate to the duties as committing magistrate under Sections 1620-1624, as well as to those of justice, so that a magistrate who has performed the services is entitled to the fees prescribed by Section 3000.</p> <p>Action Against County for Fees.</p> <p>2. Where an officer’s fees are regulated by law, and he has performed' the services entitling him thereto, the county court must audit and allow his claim, and on refusal to do so an action at law may be maintained against the county to recover the sum due.</p>

<p>From Baker: Robert Eakin, Judge.</p> <p>Statement by Mr. Justice Wolverton.</p> <p>This is an action by Perry Y. Sloan against Benjamin Leroy Sloan to recover upon a promissory note given, by the defendant to the plaintiff November 29, 1894, at Marengo, Ind., calling for $140 one day after date, with interest at 8 per cent and attorney’s fees. One defense set up is that the note is barred by the statute of limitations. It appears by the bill of exceptions that at the trial, when plaintiff rested, counsel for the defendant moved for a nonsuit against plaintiff on the ground that the testimony shows that the statute of limitations has run against the note. The motion being sustained, the court thereupon directed the jury to return a verdict for defendant, which being done, judgment was rendered accordingly, and the plaintiff appeals.</p>

<p>Proof of Other Crimes Not Incidental' to the One Charged.</p> <p>1. Although proof of the commission of other crimes is sometimes admissible as incidental to the crime charged, it is never allowable to show that defendant has committed, or is said to have committed, crimes not connected with the one for which he is on trial.</p> <p>For example, in a prosecution for larceny of a calf, after a witness had admitted that he did not feel kindly toward defendant, he should not have been permitted to state that his feelings were influenced by the supposition that defendant had stolen cattle in the neighborhood where he lived, for such a statement was merely an expression of the opinion that defendant was a thief, and was not connected with the disappearance of the calf, nor did it explain the bias of the witness.</p> <p>Showing Character of Defendant.</p> <p>2. Evidence of defendant’s character or his general reputation is not admissible until he has raised the issue.</p> <p>Witness — Explaining Bias.</p> <p>3. Where it appears that a witness is biased he may state in general terms the reasons for his feeling, but details should be avoided.</p>

<p>Contracts — Performance by Installments* — Accrual of Action.</p> <p>1. In the case of a contract of sale to be performed by installments, the vendor may sue for any proportionate payment whenever it is due without showing a full performance of the contract.</p> <p>As an example: Where a sawmill owner contracted to sell and deliver the entire output of his mill for a certain period, the delivery, acceptance and payments to be made monthly, the vendor may sue for any installment whenever it is overdue, without reference to the balance of the contract. He need not plead or prove compliance with that part of the contract subsequently to be performed.</p> <p>Evidence of Meaning of Particular Terms.</p> <p>2. In an action on a contract to purchase a quantity of lumber at a specified price for “merchantable lumber, mill run,” it is competent to show by oral testimony the meaning of those words in the lumber business In that vicinity, they being unusual words without settled judicial meaning.</p> <p>Refusing Instructions Already Given.</p> <p>3. Instructions proposed by counsel may properly be refused when they have already been practically given in the language of the judge.</p>

<p>Lien for Loan to Minor to Protect His Land.*</p> <p>1. No lien will be imposed by equity upon the property of a minor in favor of one who has advanced money at the request of such minor to redeem the property from a mortgage sale, even though the minor agreed that the lender should be subrogated to the rights of the mortgage creditor.</p> <p>Reinstatement of Mortgage Lien Canceled bt Mistake.</p> <p>2. Equity will enforce an agreement between a mortgagee who has foreclosed his mortgage and bought in the property with one who is to-provide means to pay the debt, that the judgment and the lien shall be assigned to the lender as his security for the money, where by mistake the land was redeemed from the sale and the lien canceled.</p>

From Multnomah: Arthur L. Frazer, Judge. Suit by Gardner K. Wilder against W. I. Eeed. From an order making an allowance to the receiver’s counsel, defendant appealed. The respondent moved to dismiss the appeal.

<p>From Union: Robert Eakin, Judge.</p> <p>Suit by the Board of Regents of the State Agricultural College and another against James H. Hutchinson and another. From a decree in favor of defendants, but enjoining them from closing or interfering with a certain drain box, they appeal.</p>

From Lake: Henry L. Benson, Judge. Statement by Mr. Chibe Justice Moore. Suit for an injunction by Frank D. Bauers against John Bull to enjoin interference with the flow of water in a nonnavigable stream.

From Baker: Bobert Eakin, Judge. Statement by Mr. Chief Justice Moore. This is a suit by Phila B. Clark against W. C. and Tollie M Douthitt-Hindman to reform a deed and to enjoin the enforcement of a judgment.

From Douglas: Hiero K. Hanna, Judge. Suit by B. Brockway against the City of Eoseburg and others to enjoin the performance of a contract and for its cancellation. There was a decree as prayed for and the Eoseburg Water & Light Co. appeals. Further facts appear in the opinion.

From Josephine: Hiero K. Hanna, Judge. This is a suit by W. I. Sweetland against the Grants Pass New Water, Light & Power Co. to require the removal of a dam and for damages. Plaintiff appeals from a decree against him.

From Multnomah: Álerbd F. Sears, Jrv Judge. Bill of interpleader, wherein the plaintiffs were discharged and the money in court was ordered paid to O'. S. Wiley, from which the Mihalovitch-Fleteher Co. appeals.

From. Clackamas: Thomas A. McBride, Judge. Statement by Mr. Justice Moore. This is an action by W. H. Young against H. O. Stickney to recover for services rendered, and also damages for an alleged breach of a contract.

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Wolverton. This is a suit by Claude Thayer against Manius Buchanan to foreclose a mortgage given to secure the payment of a note for $549.50, with interest at 8 per cent per annum, bearing date February 14, 1899.

From Umatilla: William E. Ellis, Judge. Statement by Mr. Chibe Justice Moore. This is a suit by S.' F. Harrington against A. L. Demaris to enjoin interference with the flow of water in the channel of a creek to plaintiff’s premises.

• From Umatilla: William E. Ellis, Judge. Action by the Norwich Union Fire Insurance Society against the Oregon Eailroad & Navigation Co., to recover the amount of damage suffered through the destruction by fire of some property insured by plaintiff. The facts are stated in the opinion. There was a judgment for plaintiff, and defendant appeals.

From Douglas: James W. Hamilton, Judge. Action by Robert Hildebrand, acting through J. S. Culver, his guardian, against the United Artisans, a fraternal life insurance organization, to recover the amount of a membership certificate issued to his father. Defendant appeals.

<p>Larceny — Indictment—Charging Separate Offenses.</p> <p>1. The stealing of articles belonging to several persons at one time and place constitutes only one offense, and may be charged by one indictment, but the allegation must be definite, no presumptions being indulged.</p> <p>Indictment for Larceny From Different Persons.</p> <p>2. An indictment alleging that defendants on a certain date "then and there being, and acting together, did then and there * * feloniously take, steal and carry away" several chattels belonging to two different persons, sufficiently alleges that the articles were, taken at the same time and place.</p>

Prom Multnomah: Melvin C. George, Judge. Statement by Mr. Justice Bean. This is an action by Milton W. Smith against J. C. Bayer and Peter Hobkirk on a promissory note for $290, executed and delivered by the defendants to the Concordia Loan & Trust Co. oí Kansas City, Mo., on January 30, 1896, due on or before August 1 following.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Moore. This is an action by A. L. David against William and Nicholas Moore to recover damages for alleged false and fraudulent representations.

From Multnomah: Alfred F. Sears, Jr., Melvin C. George and John B. Cleland, Judges, in joint session. Statement by Mr. Chief Justice Wolverton. This is an escheat proceeding by the State of Oregon against S. W. Simmons, as administrator, and the heirs of Henry Wilson, deceased.

<p>Memorandum as Evidence Under Oregon Statute.</p> <p>1. The old rule as to the use by witnesses of memoranda made by themselves or others has been so modified by Section S48, B. & C. Comp., that the memorandum can he used only when it was made by the witness or under his direction. If the memorandum was made by another and not under the direction of the witness, it cannot be referred to, even though the witness saw it soon after it was made, and then knew of his own knowledge that it conformed to the facts.</p> <p>Memoranda — Nature op Evidence — Refreshing Memory.*</p> <p>2. Memoranda are but secondary evidence, and not competent if the witness is able to testify without referring to them, or if he is able to testify from recollection after refreshing his memory by inspecting them.</p> <p>Business and Private Memoranda Compared.</p> <p>3. The admissibility of business and private memoranda is not controlled by quite the same rule, the practice being rather more liberal in reference to the former.</p> <p>Admissibility op Memoranda Made by Clerics.</p> <p>4. Where locomotive inspectors enter the results of their regular inspections on slips which are filed in a designated office, where the information is, under the regulations of the office, copied by a clerk into a book which the inspectors subsequently sign after comparing the copy with the original data, it is error to permit an inspector to refresh his memory from the book without producing the original entries ,or accounting for their absence.</p> <p>Idem.</p> <p>5. Where original memoranda of locomotive inspections are shown to be lost, other memoranda made from the original slips by a clerk ir. accordance with his duties, and shown by the evidence of the clerk and inspectors to be correct, are admissible.</p> <p>Pires by Engines — Evidence op Other Pires.</p> <p>6. In an action for damages resulting from a fire set by a passing locomotive, where plaintiff did not identify the particular engine that caused the fire, the jury may-consider evidence as to other fires about that time caused by engines of the defendant, and as to the scattering of live coals about the time in question by such engines.</p>

<p>From Coos: James W. Hamilton, Judge.</p> <p>Suit by Henry Sengstacken against James T. McCormac for an injunction, which was unsuccessful.</p>

From Benton: James W. Hamilton, Judge. Statement by Mr. Chief Justice Wolverton. This is a suit by Emma K. Groves, as executrix of the estate of William Groves, deceased, against John M. Osburn.

From Marion: Reuben P. Boise, Judge. Statement by Mr. Justice Moore. This is a suit by Charles Harding against Merlin Harding and others, minors, to determine an adverse claim to real property.

From Multnomah: Melvin C. George, Judge. Statement by Mr. Chief Justice Moore. This is an action by A. T. Lewis, substituted for J. Crane, to recover money.

Prom Multnomah: Alfred E. Sears, Jr., Judge.. Statement by Mr. Chief Justice Wolverton. Action by the Pacific Export Lumber Co. against the North Pacific Lumber Co. Both plaintiff and defendant are corporations.

<p>Sales — When Title Passes.</p> <p>When property is identified by seller and buyer, weighed, marked and paid for, the sale is complete and title passes,* though the property is left with the seller under an agreement as to future delivery.</p>

<p>From Grant: Morton D. Clifford, Judge.</p> <p>Statement by Mr. Chief Justice Wolverton.</p> <p>This is a proceeding supplementary to execution by the State on the relation of Grant Thornburg against G. H. Gutridge, and comes here on an appeal by the defendant from a judgment of the circuit court, adjudging him to be in contempt of court, to pay a fine of $25, and that he be imprisoned until he satisfies a certain other judgment previously rendered against him, and in favor of the relator, for the sum of $660.50 and costs. The contempt consists in his alleged disobedience of a supposed order or judgment rendered in a proceeding supplementary to execution, requiring him, within 15 days after its entry, to pay the relator’s judgment by the application thereto of money which was found in the proceeding to be in his possession. The affidavit upon which the contempt proceeding is based shows, in substance, that on November 22, 1902, Thornburg obtained a judgment against the defendant for the sum of $660.50 and costs; that an execution was duly issued thereon, and returned nulla bona; that the judgment remains in full 'force and wholly unsatisfied; that by order of the court, made March 2, 1903, in a proceeding supplemental to execution, a referee was appointed to take and report the testimony therein; that thereafter, on May 20, 1903, the said referee made his report, and that from the testimony, pleadings, and records in the cause the court found that defendant had in his possession in money $2,000, of which he was the owner, and, as a conclusion of law, that the defendant be required to pay said $2,000, or so much thereof as might be necessary to satisfy said judgment, within 15 days from the entry of judgment therein, which judgment and report were made a part of the affidavit; that said findings of fact, conclusion of law, judgment, and order were made and entered on the 4th day of March, 1904, of which defendant had personal knowledge, having been served with the same on April 8, 1904; and that defendant has no ether property out of which the judgment may be made by levy of execution. The findings of the court to which reference is made in the affidavit, and which are a part thereof, are as follows :</p> <p>“That on or about May —, 1902, the defendant sold to the Red Boy Mining & Milling Co. a piece of real property located in Grant County, Oregon, and received from C. A. Johns, the attorney for said Red Boy Mining & Milling Co., in cash and drafts, the agreed price thereof, which was and is $2,000; that immediately thereafter said defendant, who is by occupation a miner, has worked at his occupation as a miner, receiving therefor on an average of not less than three dollars a day; that defendant’s family consists of a wife and no children, and that during the time the defendant has been working at different mines and receiving good wages' therefor, his wife has been keeping boarders and receiving pay therefor, and assisted in making the'defendant a living; that no satisfactory explanation has been made as to what has been done with said $2,000, or the wages received by the defendant for his labor, and which he has earned since May —, 1902. I therefore find that the defendant, G. H. Gutridge, at this time is the owner of and in possession of $2,000 in money in Grant County, Oregon, which said money is liable to the execution upon the judgment herein.</p> <p>“As conclusions of law, I find that the defendant, G. H. Gut-ridge, be required to pay said $2,000, or as much thereof as may be necessary to satisfy the said judgment, and costs and disbursements taxed at $149.30, within 15 days from the entry of judgment herein.</p> <p>“Morton D. Clifford, Circuit Judge.”</p> <p>To this affidavit a motion to dismiss was interposed, on the ' ground, among others, that it does not state facts sufficient upon which to base contempt proceedings, which being overruled, defendant answered, setting up again the prior proceedings upon which the present are based, and, issues being fully tendered, the court rendered judgment as first herein indicated.</p>

<p>Bias of Juror.</p> <p>1. In an action by a hop merchant against a farmer, a juror who stated that he did not know either of the parties and knew nothing about the case; that it would be hard to say whether in such a litigation he had any sympathy for one as against the other, but that he guessed he was In sympathy with the farmer, because he had had more dealings with farmers; but was quite certain that his verdict would depend on the evidence, is not subject to challenge for actual bias.</p> <p>Parol Evidence to Vary Written Contract.</p> <p>2. The rule against varying the terms of a writing by parol evidence is not applicable where the existence of the memorandum is denied, and the evidence is offered to explain what the writing really is.</p> <p>Replevin for Undivided Interest in a Mass.*</p> <p>3. Replevin will not lie for an undivided part of a mass of uneven quality, as, for an interest in a number of bales of hops varying in weight and grade.</p>

From Clatsop: Thomas A. McBride, Judge. 'Suit by Asmus Brix and others against Clatsop County and others to restrain the drawing and delivering of certain county warrants, and to obtain the cancellation of a contract made by the county for the construction of a court house. . A demurrer to the complaint was sustained pro forma, and plaintiffs appeal.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Bean. This proceeding was instituted in the county court, sitting for the transaction of probate business, to establish a claim against the estate of A. H. Morgan, deceased.

From Union: Robert Eakin, Judge.. Statement by Mr. Ciiiee Justice Moore. Tbis is an action by the Grande Ronde Electrical Co. against _ A. H. and Ií. D. Drake to condemn a right of way for a ditch across defendants’ premises, and also their interest as riparian proprietors in and to the surplus water of a nonnavigable stream.

<p>Due Process op Law — Necessity of Indictment — Validity of Accusation by Information Without Grand Jury.</p> <p>1. The statute permitting district attorneys to file informations charging crimes (B. & C. Comp. §§ 1258-1264), but reserving to circuit judges the discretionary right to call grand juries, is not unconstitutional under Const. II. S. Amend. XIV, prohibiting the deprivation of liberty without due process of law, nor under Const. Or. Art. VII, § 18, providing for the selection or abolishment of grand juries.</p> <p>Necessity of Information Being Under Oath.</p> <p>2. An indictment or information in the form set forth in the statute, B. & C. Comp. § 1304, is sufficient, though it does not purport to be under oath, as both the grand jury and the district attorney are required to perform their duties under their oaths of office, and presumably their duties were so discharged: B. & C. Comp. § 788, subd. 15.</p> <p>Judicial Notice of Appointment and Power of Deputy District Attorney — -Verification of Information.</p> <p>3. Courts will take judicial notice of the appointment and scope of authority of their officers, including deputies; thus: Where it appears in a criminal case that the information has been prepared and filed by a deputy district attorney, the court will take notice of the official position of the deputy and of his authority, so that proof is not necessary on either point.</p> <p>Effect of Motion to Set Aside Information.</p> <p>4. A motion to set aside a criminal information on the ground that it was not found, indorsed, or presented as required by law was insufficient to challenge the appointment of the deputy district attorney who prepared and filed the information.</p> <p>Information — Implied Oath.</p> <p>5. An information prepared and filed by a deputy district attorney is in effect the act. of the district attorney himself and therefore performed under oath, though the deputy is not a sworn officer, particularly where the principal officer calls the case for trial on the information so filed.</p> <p>Prosecution by Information is Due Process of Law.</p> <p>6. A prosecution for a felony by an information constitutes due process of law as that term is used in the Fourteenth Amendment to the Constitution of the United States.</p> <p>Power of District Attorney to File Information.</p> <p>7. A district attorney in Oregon has power to file informations for both misdemeanors and felonies without permission of court, acting upon his own initiative, ns did the attorney general of England under the common law; but here the authority is derived directly from the statutes, and not from the common law.</p> <p>Information, — Requirement of Support of Oath.</p> <p>8. An information is supported by oath, as required by the Fourth Amendment to the Constitution of the United States, and Article IX of the Bill of Rights of Oregon, since it is filed by the district attorney, who is ar. officer acting under an official oath, performing the duties formerly devolving on a grand jury.</p> <p>Information — Ratification of Signature Made by Deputy.</p> <p>9. A district attorney, having assisted in prosecuting accused, and being present when he was arraigned, and having secured an extension of time within which to plead, adopted and ratified the signing of his name to the information by another.</p>

From Lane: James W. Hamilton, Judge. Statement by Mr. Justice Moore. This is an action by I. Fleishman ■ and D. J. Guggenhime, partners as. Guggenhime & Co., against Michael Meyer and William Kyle, partners as Mleyer & Kyle, to recover damages alleged to have been sustained in consequence of the breach of an agreement.

From Baker: Bobert Eakin, Judge. Statement by Mr. Chief Justice Wolverton. This is an action by Baker County against A. H. Huntington and others to recover upon an obligation alleged to be the sheriff’s additional bond as tax collector for Baker County.

<p>■From Grant: Morton D. Clifford, Judge.</p> <p>Proceedings supplementary to execution by Grant Thornburg against G. H. Gutridge. From a judgment for plaintiff, defendant appeals.</p>

<p>From Wasco: W. L. Bradshaw, Judge.</p> <p>Norman Williams, informed against as Daniel Norman Williams, was convicted of murder, and appeals.</p>

<p>Master and Servant — Injury—Failure to Recall Danger — Contributory Negligence.</p> <p>1. Where a servant is suddenly called upon to perform a service requiring prompt and energetic action he cannot as a matter of law be charged with contributory negligence in failing to remember a defect in the machinery he must handle, or a particular danger connected with the work, even though he may previously have known of them.</p> <p>Idem.</p> <p>2. The fact that a servant has knowledge of a danger is not conclusive of negligence in failing to avoid it, hut that fact imports negligence only when the danger was of such a character'that a man of ordinary prudence and caution would have refused to incur it in the performance of his duties.</p>

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Moore. This is an action by N. B. Nye. against the Bill Nye Gold Mining .& Milling Co. to recover the sum of $800 for services alleged to have been perfomerd by plaintiff for the defendant, a private corporation. - A former judgment having been reversed (42 Or. 560, 71 Pac. 1043), the cause was remanded, and an amended complaint filed September 15, 1903, in pursuance ■of previous leave of court.

<p>Ownership op Rent Accruing Between Execution Sale and Date of Redemption — Chose in Action.</p> <p>1. Rent for premises sold on execution becoming due after the date of the sale but before a redemption is an assignable chose in action belonging to the execution debtor, and does not pass with a conveyance of the land unless specially mentioned.</p> <p>Equity Jurisdiction — Remedy at Law — Accounting.</p> <p>2. Equity has no jurisdiction over a proceeding to recover a definite sum of money claimed by plaintiff, unless the accounts are too long and complicated to be appropriately submitted to a jury, the remedy at law being ordinarily sufficient.</p>

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Moore. This is a suit by Alfred Lewis and others to foreclose miners' liens.

From Multnomah: John B. Cleland, Judge. This is an action by Idonia Stinchcombe against the New York Life Ins. Co. on an insurance policy. George W. Stinchcombe made application, May 5, 1894, at Forest Grove, Or., to defendant for insurance on his life in the sum.of $2,000, payable to his wife, the plaintiff, in ease of his death during the continuance of the policy contemplated to be issued in pursuance thereof.

<p>Implied Repeal op Statute by Subsequent Act — Conflict Between Local Option Act and City Charter.</p> <p>1. The State local option law (Laws 1905, p. 41, c. 2), authorizing an election on petition to determine whether sale of intoxicating liquors shall be prohibited within any county or subdivision thereof (Sec. 1), providing that, on the result being for prohibition, the county court shall make an order prohibiting the sale (Sec. 10), making It an offense to thereafter sell such liquors within the Inhibited territory (See. 15), does not supersede a city charter giving the council power to grant licenses and to provide for the revocation thereof, and to regulate and restrain liquor dealers and their places of business, the general act being only a modification of the earlier special municipal act, in that its application is dependent upon a vote for prohibition at an election. Until such an expression of the popular will the charter powers are unchanged.</p> <p>Constitutionality of Local Option Legislation.</p> <p>2. Quaere. Does a local option law that is In force or not, as the vote may go in certain districts, violate Const. Or. Art. I, § 21, prohibiting the enactment of any law the taking effect of which shall be made to depend upon any authority, except as provided therein?</p> <p>Equity — Enjoining Municipalities.</p> <p>3. Equity will restrain the action of municipal corporations attempting to proceed beyond their delegated powers.</p> <p>Intoxicating Liquors — Exercise of Police Power.</p> <p>4. An ordinance forbidding the sale of intoxicating liquors in any room or box connecting with a saloon is not an unreasonable or oppressive restriction, but is an appropriate exercise of the general police power conferred by the city charter.</p> <p>Validity of Exceptions in Ordinance Regulating Sales of Intoxicating Liquors — Special Privileges.</p> <p>5. An ordinance interdicting the sale of intoxicating liquors in a private room does not, by making an exception in favor of hotels, contravene Const. Or. Art. 1, § 21, inhibiting laws granting privileges which on the same terms shall not equally belong to all citizens; this not being applicable to a business which may lawfully be prohibited.</p>

<p>Criminal Law — Sudden Frenzy Not Insanity.</p> <p>1. A sudden and frenzied paroxysm of anger or jealousy is not insanity in one otherwise in possession of his mental faculties, unaffected by heredity or disease, and does not relieve him from responsibility for crime.</p> <p>Jealous Rage — Instructions as to Criminal Responsibility.</p> <p>2. A statement by the trial judge that jealous anger at the conduct of one’s mistress is not insanity, and that the difference between the two is quite clear, is not error, particularly wñere the judge further offered to receive evidence tending to show insanity, or the condition of defendant’s mind, together with information that had been communicated to him, and having instructed that the jury had a right to consider the condition of defendant’s mind at the time of the homicide, as bearing on the degree of the offense.</p> <p>Trial — Qualification of Juror After Trial.</p> <p>3. The conclusion by the trial judge as to the qualifications of a juror, when attacked by a motion for a new trial, or on appeal, will be set aside only when there has been an abuse of discretion.</p> <p>Reviewing Qualification of- Jurors After Trial.</p> <p>4. Where, after verdict, the proofs which are produced for and against the qualifications of a juror are conflicting, and of somewhat even balance, the court’s conclusions will not be disturbed unless they may result in manifest injustice.</p> <p>Determining Qualification of Jurors Before Trial.</p> <p>5. If a venireman should falsely state on his voire dire his Interest or position, or should misstate or conceal a material relevant fact, he would be guilty of prejudical misconduct.</p> <p>Example of Discretion — Qualification of Juror.</p> <p>6. On a prosecution for murder, defendant moved for a new trial on the ground that a juror had made false answers, in that he had stated that he had never heard anything about the case. Defendant produced an affidavit that affiant, shortly after the coroner’s inquest, met the juror in question, and tallied with him, and told him all about the crime; and another affidavit stated that the juror admitted to affiant, in the presence of the one who had made the first affidavit, that the juror had tallied with the latter about the case prior to the trial. The affidavit of the juror stated that he had no recollection of having ever tallied with any one about the crime, and that he had never admitted that he had done so; and another affidavit, made by the one who made the first-mentioned affidavit, stated that the juror never admitted in his presence that he had ever talked about the case. Held, that it was not an abuse of discretion to deny the new trial.</p>

<p>Contracts — Independent Separable Covenants.</p> <p>1. Defendant lumber company contracted with plaintiff corporation to subscribe for a certain amount of its capital stock; to be paid for in lumber. Plaintiff agreed to increase its capital stock, to merge its existing business into the new business, to secure land for a lumber yard, to contract with a railway company for the delivery of lumber from a dock, and to secure bona fide subscriptions for a certain amount of its increased capital stock; such subscriptions to be paid in full in from one to four months. Heldj that this latter, agreement was independent and separable, so that strict performance of it was not a condition precedent to a right to maintain an action for failure of defendant to perform -its contract.</p> <p>Corporations — -Admission of Genuineness of Stock Subscription.</p> <p>2. Where defendant and plaintiff corporation entered into a contract which, among other things, required plaintiff to increase its stock, and to obtain subscriptions to a part of it, failure of -defendant, on receiving a list of the subscribers, to object to a subscription purporting to have bf.en made by a corporation, was an implied admission that the subscription was genuine.</p> <p>Corporations — Immaterial Defense to Action of Damages for Not Taking Subscribed Stock.</p> <p>3. Where defendant and plaintiff corporation entered into a contract which required plaintiff to increase its capital stock and procure subscriptions for a part thereof, the alleged fact that money paid in by the subscribers to the additional stock issue was not used by plaintiff in accordance with its contract with its stockholders was no defense to an action on the contract of defendant to subscribe to the stock.</p>

<p>From Lane: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chief Justice Wolverton.</p> <p>This is an action by J. B. Brown against Theresa Feldwert and her husband on a promissory note. The plaintiff for cause of action alleges:</p> <p>“That on or about the 33d day of June, 1901, at the City of Eugene, in the county of Lane, in the State of Oregon, the said defendants, Theresa Feldwert and Me Feldwert, made their certain promissory note in writing, bearing date on that day, which said promissory note is in words and figures following, to wit:</p> <p>“$3l5.00. Eugene, Cal., June 33, 1901.</p> <p>“Eight months after date, for value received, I promise to pay Dr. Meyers & Co. or order, the sum of two hundred and fifteen dollars, with interest. Payable at San Francisco, Cal.</p> <p>Theresa Feldwert.</p> <p>Me Feldwert.”</p> <p>“No. 5115. Due Feb. 33, 1903.</p> <p>“And then and there delivered the said promissory note to the said Dr. Mleyers & Co., who thereafter, and before its maturity duly indorsed, assigned, and delivered said promissory note to the plaintiff herein for value. That the said plaintiff is now the lawful owner and holder .of .the said promissory note.. That no part of the said promissory note or of the interest thereon has been paid. That there is now due and unpaid to the said plaintiff on said promissory note the sum of $315, and interest thereon at the. rate of 6 per' cent per annum from the 33d day of June, 1901.”</p> <p>The defendants, without previous denials in any form, set out three separate defenses. By the first they admit the genuineness of the signatures to the paper, but they deny that they knew they were signing a promissory note., and allege that the paper was obtained from them and their signatures were attached thereto through and by reason of the false and fraudulent representations of .one Dr. Meyers that it was an agreement to pay to him the sum named on condition and whenever he succeeded in effecting a permanent' cure of a malady with which one of the defendants was afflicted; that, having confidence in him, because he conversed in their own language (the German), and by-reason of his appearance as a man of education and fair dealing, they were induced to sign the note, believing it to be the agreement as represented; and that, having been so fraudulently procured, they arc not liable upon the same. By the second they admit they signed the paper, hut- allege that the sole and only consideration therefor was that one Dr. Meyers represented that he -would treat one of the defendants for a malady with rvhich she was afflicted, and that he would effect a permanent cure; that he never treated her or performed any services for her whatever; and deny that plaintiff is an innocent purchaser f-or value in the usual course of business before maturity, but allege that he is chargeable with all defects therein. And by the third defense they allege that the note is null and void because procured by fraud, as alleged in the first separate defense, and for the further reason that Dr. Meyers was not licensed to practice medicine in Lane County, and therefore not authorized to perform the services agreed upon, of which plaintiff had notice. The reply consists of general denials, and sets up affirmatively that plaintiff is the holder in due course of the note in question. A jury being called, the plaintiff submitted the. note and rested, whereupon the defendants attempted to introduce evidence, hut were not allowed to do so, and the court finally instructed the jury to return a verdict for plaintiff in the amount demanded, which being done, judgment was entered thereon, and the defendants appeal.</p>

<p>From Columbia: Thomas A. McBride, Judge.</p> <p>This is a suit by Thomas Allison and others against R. S. Hatton, as Sheriff of Columbia County, for an injunction. Plaintiffs appeal from a decree of dismissal.</p>

From Multnomah: Arthur L.-Frazer, Judge. Statement by Mr. Justice Bean. This is an action by Anthony Neppach against the Oregon & California Railroad Co. On March 24, 1883, the defendant contracted to sell to the plaintiff and one C. A. Himpel (the contract being in the name of Himpel) five, sections of land in the eastern part of Multnomah County and within the indemnity limits of the grant made to it by act of congress of July 25, 1866.

From Multnomah: Melvin C. George^ Judge. Statement by Mr. Ciiiee Justice Wolverton. This is a creditors5 suit by the Moore, Schafer Shoe Mfg. Co. against Moses Billings and others, by which it is sought to set aside a certain chattel mortgage and sale, made thereunder of a stock of merchandise, because in alleged contravention of the statute relating to the sale and transfer of goods in bulk, and as fraudulent and void as to the creditors of the defendant Billings.

<p>Notes — Action by Agent Against His Prin6ipals.</p> <p>1. Where a number of persons not incorporated, and not organized so as to become a legal entity, jointly own a note made by one of them, an agent of them all cannot sue on such note under an assignment for collection, since in such a case the maker would be suing himself through his agent.</p> <p>Owner or Holder of Note.</p> <p>2. The holder of a note is one who has possession of it and is demanding payment, but such a person is not necessarily the owner, so a finding only that one is the -holder of a note is equivocal.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Wolverton. This is a suit by James I. Marshall against Charles Cardinell.

<p>From Washington: Thomas A. McBride, Judge.</p> <p>Statement by Mr. Chiee Justice Wolvekton.'</p> <p>This is a suit by Bichard W. Montague, as trustee in bankruptcy in the matter of the estate of Effingham L. Schieffelin, bankrupt, against Jay L. Schieffelin and others to subject an undivided one-fourth interest in the estate of Edward L. Schief■ielin, deceased, to the payment of the debts of the bankrupt, which interest it is alleged is held in trust for him by Jay L. Schieffelin. The alleged trust relations and title are dependent for their validity and legal existence upon certain papers, one denominated the “last will” and the other in form a letter left by deceased at the time of his death. They are, so far as it is necessary to set them out, in language following:</p> <p>“last will.</p> <p>“1st. I give to my wife, Mary E- Schieffelin, all interests, both real and personal properties, I may die seized of in Alameda and Santa Clara counties, California. Also fifteen (15 $1000) one thousand dollar University of Arizona bonds and all other properties I may die. seized of, both real and personal, wherever the saíne may be situated, I give to my brother, Jay L. Schieffelin, as Trustee.</p> <p>“2d. As soon as the fifteen ($15,000) thousand dollar Equitable Life Insurance Policy and the money for the United States Bonds (suit now pending) in the hands of John Sparhawk, Jr., of Philadelphia, Pennsylvania, have been collected, and all personal debts have been paid, the balance I give to mjr wife Mary E. Schieffelin and my brother Jay L. Schieffelin as Trustee, share and share alike. * *</p> <p>“5th. I appoint without bonds, as my executors, my wife, Mary E. Schieffelin, and my brother, C. L. Schieffelin.</p> <p>“6th. This is my last will and testament, written under no influence and in sound mind, at home, fifteen (1511) hundred and eleven Central Avenue, Alameda, California, the sixteenth. (16) day of September, eighteen (1896) hundred and niDety-six.</p> <p>Ed. Schieffelin.</p> <p>(Indorsed) Last Will of Ed. Schieffelin, Sept. 16, 1896.”</p> <p>“To ray Brother J ay L. Schieffelin:</p> <p>A Request.</p> <p>Dear J ay:</p> <p>“You will see by my will of September 16th, 1896, that I have left my property, real and personal, to you as Trustee, and to my wife Mary E. Schieifelin. 1 want you as soon as you think it desirable, to give to our niece Lulu Dunham the Seventh (7th) street property in the City of Los Angeles, California.</p> <p>“And all other monies and property, real and personal, that may come into your hands from my estate, I want you to collect all rents and incomes from the same; and whenever 3rou think it advisable, after deducting all necessary expenses, divide the balance between yourself, our sister Lizzie Guirado, our brothers C. L. Schieffelin and E. L. Schieffelin, share and share alike, until such time as you think it advisable to either divide the property as 3rou receive it or sell it and divide the proceeds. Either way, I want yourself, our sister Lizzie Guirado, and our brothers C. L. Schieffelin and E. L. Schieffelin, to share in all property that may come into your hands from my estate except that given to our niece, Lulu Dunham. Whenever you think such division advisable, it might bo advisable to consult with our sister and brothers about the manner and time of making such division. However, use your own discretion about it. .</p> <p>Your brother, ■ Ed. Schieffelin.</p> <p>1511 Central Avenue, Alameda, California..</p> <p>April 10th, 1897.”</p> <p>Effingham L. Schieffelin and C. Fannie Schieffelin, his wife, answered separately, suggesting two defenses, one partial and the other complete. The partial defense consists of an averment that certain of the alleged indebtedness of the bankrupt is unconscionable, and the complete defense in the further averment that the alleged trust was created as a spendthrift’s trust to prevent the dissipation of the property that Effingham would otherwise' have inherited from the deceased. A demurrer to these answers being overruled, and plaintiff refusing to plead further, defendants moved for a decree dismissing the complaint upon the ground of plaintiff’s failure to controvert the new matter, which motion was sustained, and the plaintiff appeals.</p>

<p>From Marion: George II. Burnett, Judge.</p> <p>This is an action by Chas. Scott as executor of his father’s estate against M. and II. Christenson, resulting in a judgment for plaintiff, from which both defendants appeal.</p>

<p>Vendor and Purchaser — Waiver op Terms op Contract.</p> <p>1. Where a contract provided that defendant would start a mill and demonstrate that it could be successfully run, and then would execute a lease to plaintiff, but plaintiff, immediately upon the making of the contract, entered into possession of the mill himsell, and successfully ran the same without requiring or requesting defendant to make such demonstration, the conditions of the contract requiring a demonstration by defendant were waived.</p> <p>Specific Performance op Unaccepted Contract.</p> <p>2. Where a contract obligated defendant to execute to plaintiff a lease, with an option to purchase, and plaintiff refused to accept the lease for no fault of defendants, plaintiff could not maintain a suit for damages or specific performance based on the option clause which would have been in the lease if accepted.</p> <p>Rights op Parties on Failure of Vendor to Provide Good Title.</p> <p>3. Where the. vendee in an executory contract for the purchase of real estate takes possession, and the title of the vendor fails, or he is unable to make conveyance as stipulated, the purchaser’s remedy is either to rescind the contract, and to restore or offer to restore possession, in which case he may recover the purchase money and interest, or to retain possession under the contract, pay the purchase price, and accept such title as the vendor may bo able to give. He cannot retain both the land and the purchase money until a perfect title is offered to him.</p>

<p>From Lane: James W. Hamilton, Judge.</p> <p>Action in tort by Herbert Beadle against Paine & Kuykendall, surgeons, resulting in a judgment for defendants, from which this appeal is taken.</p>

From Multnomah: Arthur L. Frazer, Judge. M. G. Nease appeals from a conviction of committing an act grossly disturbing the public peace by maintaining a pool room in the City of Portland.

From Multnomah: Arthur L. Frazer, Judge. . Statement by Mr. Chief Justice Wolvertqn. ' Action by William K. Mafiiet, Jr., trustee, against the Oregon & California Kailroad Co. to recover sundry sums had and reeeived bty defendant to plaintiff’s use, resulting in a judgment for plaintiff in the sum of $21,619.38, from which this appeal is taken. On December 31, 1889, the defendant as party of the first part, and E. T. McKinney and Wm.

Prom Multnomah: John B. Cleland, Judge. Statement by Mr. Chiee Justice Wolverton. The county court for Multnomah County, sitting in the transaction of county business, cited Xarifa J. Paling, plaintiff, to appear before it and show cause why she should mot be directed to support her brother, Cornelius W. Barrett, or pay to the county for the use of the poor the sum of $30 a month, or such other sum as. the court might .deem sufficient.

<p>From J ackson: Hiero K. Hanna, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by Luther Smith, as administrator, to foreclose a mortgage given by the defendant Leavenworth to the plaintiff’s intestate, Nelson, on certain mining property in Jackson County, to secure the payment of a promissory note for $2,000, due one year after date. The complaint contains an allegation that by mutual mistake certain property intended to be included in the mortgage was omitted from the description. As the court decided against plaintiff on that point, and he has not appealed, it will not be referred to further. After the recording of the mortgage, and before the commencement of this suit, two judgments were recovered against Leavenworth in actions at law, and the mortgaged property was sold to satisfy the same to one Witherell, who transferred his interest to the defendant Gregson. Gregson alone appears, and sets up as a defense that the note and mortgage from Leavenworth to Nelson were made in pursuance of an agreement between them by which Nelson obtained an option to purchase a one-fifth interest in Leaveuworth’s mining property for $5,000, it being understood and agreed that in case he elected to exercise the option, and paid the further sum of $3,000, Leavenworth would convey to him the interest in tbe property, and the amount due on the note, and mortgage should be considered as part of the purchase price, and the mortgage paid and satisfied; that, soon after the execution of the mortgage, Nelson exercised his option to purchase, and paid the remaining $3,000, whereupon plaintiff surrendered up the note and mortgage as fully paid and satisfied, but the mortgage was not canceled of record: These averments are denied by the plaintiff, and upon the testimony the court found in his favor, and defendant appeals. •</p>

<p>Contract Between Married Persons as to Marital Rights.</p> <p>1. A contract between a wife and her husband for the relinquishment by him of his curtesy estate in her property, conferred by Sections 5544 and 5547, is entirely void both at law and in equity, as against the public policy of the State of Oregon.</p> <p>Estoppel to Claim Right op Curtesy.</p> <p>3. The fact that a husband agreed with his wife not to claim curtesy in her lands, in consequence of which she did not deed them to certain persons but devised them in her will, does not estop him' from claiming the curtesy, even though "he allowed such persons to take possession of the land, for the contract is wholly void and no one has changed any position in reliance on it.</p>

<p>From Multnomah: Melvin C. George, Judge.</p> <p>Action in support of a garnishment'by O. O. Jennings against Wm. Frazier and others, resulting in a judgment for the garnishees, from which plaintiff appeals.</p>

<p>Disbarment op Attorneys.</p> <p>In order to justify the disbarment of an attorney, his conduct must have been such as to evidence his unfitness for that confidence and trust which attend the relation of attorney and client and the practice of law before the courts, or it should show such lack of personal honesty or of good moral character as to render him unworthy of public confidence.</p>

<p>From Linn: George H. Burnett, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by Mary Ann Bowers against S. B. Powers to set aside for fraud a deed executed and delivered by the plaintiff to the defendant on February 11, 1890. The. plaintiff in her complaint alleges that she is the wife of one W. M. Powers and the mother of the defendant; that on February 11, 1890, she was, and still is, tbe owner of and in possession of the premises described in tbe deed in question, and that they are of the value of $7,000; that for somo daj^s prior to the. date mentioned, and for many days thereafter, her husband was very ill and his life despaired of; that during such time tbe defendant, for the purpose of overreaching, wronging and defrauding her, falsely and fraudulently represented that his father was indebted to him in a large sum, the exact amount of which he was unable to state, and that if he died he would lose tbe amount due Mm, and urged and importuned her to sign a written statement to the effect that if his father died she would see him fairly treated in the settlement of the estate; that relying on snob statement, and believing it to be true, she agreed to sign the'statement requested; that, to carry out his purpose of overreaching and defrauding her, defendant caused a deed to be prejaared, conveying the property to him in fee simple, and falsely and fraudulently represented that it was the written statement which she had agreed to sign; that relying upon such representations, and trusting in her son, she signed the deed without reading it or knowing its character, believing it to be such statement; that defendant thereupon took possession of the deed, and secretly held the same until August 8, 1902, when he caused it to be recorded; that she has remained in the possession of the property since the execution of the deed, receiving and enjoying the rents and profits thereof; that at the time of its execution the defendant’s father was not indebted to him in any sum whatever, and all the statements and representations in reference thereto so made by the defendant were and are false and untrue, and were made for the purpose of overreaching and defrauding plaintiff. The defendant in his answer denies in toto the material allegations of the complaint, and avers that, at the request of plaintiff and his father, he worked and labored on the land owned by them for a period of about eight years, for which services they agreed to pay; that on or about the 8th day of February, 1890, he had an accounting and settlement with the plaintiff, wherein it was ascertained and agreed that she and his father owed him for such work and labor about $3,000; that the deed in question was executed and delivered .in payment thereof, it being understood and agreed, however, that plaintiff should have the use and occupation of the premises and enjoy the rents and profits thereof so long as she lived, but by mistake such reservation of a life estate was omitted from the deed, and the answer asks to have it reformed accordingly. The reply denied the material affirmative allegations of the answer, and, upon the issues thus joined, the cause was tried and a decree entered reforming the deed as prayed for by the defendant, but otherwise dismissing the complaint. From this decree the plaintiff appeals.</p>

<p>From Harney: Morton D. Clieeord, Judge.</p> <p>George S. Miller appealed from a conviction of murder in the second degree.</p>

<p>Time When Local Option Law Took Effect — Constitutionality.</p> <p>1. The local option law adopted In June, 1904 (printed in Laws 1905, pp. 41-50), providing that upon the filing of a petition of a designated kind the county court shall order an election to determine whether the sale of intoxicating liquors shall be permitted or prohibited in the political subdivisions designated in the petition, and that.if the vote is against permission the prohibition shall take effect on the first day of July next succeeding, is a general act, which became a law pursuant to proclamation,* and is not within the prohibition of Const. Or. Art. I, § 21, providing that no laws “shall be passed the taking effect of which shall be made to depend upon any authority, except as provided” in said constitution, though the operation of the prohibitory feature is conditioned on the vote in the subdivisions designated by the petition.</p> <p>Local Option Law — Special Act Punishing Crimes — Regulating Practice in Courts of Justice.</p> <p>2. The local option law adopted in Oregon by popular vote in 1904 (Laws 1905, p. 41, e. 2) is not a special or local law for the punishment of crimes and misdemeanors, or regulating the practice in courts of justice, as prohibited by Const. Or. Art. TV, § 23, subds. 2 and 3.</p> <p>Local and Special Laws as to Sales of Liquors.</p> <p>3. As Const. Or. Art. IV, § 23, does not prohibit special or local laws concerning the sale of Intoxicating liquors, there seems to be no limitation on the power to legislate locally on that subject, so that the local option act adopted in 1904 (Laws 1905, pp. 41-50) is not void because it may operate in only some districts.</p>

<p>Waiver op Motion to Strike Complaint.*</p> <p>1. A motion to strike out a complaint must be made, before answering, under Section SI of B. & C. Comp., and is therefore waived by pleading over.</p> <p>Compelling Election Between Causes op Action.*</p> <p>2. Where a pleading shows double statements of the same cause of action, or different grounds of recovery for the same right, the plaintiff will usually be required before the taking of evidence begins to select one ground and abandon the others, though there are a few exceptions to this rule.</p> <p>Discretion as to Compelling Election.</p> <p>3. Whether a motion to require a party to elect should be granted is largely discretionary, care being had to promote justice and truth.</p> <p>Pleading Separate Causes op Action.</p> <p>4. Separate rights of action must always be separately stated, while separate statements of a single right may or may not be allowed, as the occasion may require.</p> <p>This is an example of properly requiring an election between statements of a right of action: A plaintiff having stated a cause of action</p> <p>under the statute against a railroad company for killing stock on unfenced track, and having also stated a cause of action for ordinary negligence in killing the same stock at the same place with the same train, the court' required him, before offering evidence, to select either the statutory or the common-law negligence and abandon the other.</p> <p>Tims op Requiring Election.</p> <p>5. A motion to require a party to elect which cause of action will be pursued may be made after an appeal from a justice’s court and at any time before the examination of witnesses begins.</p> <p>Stock Killed on Track — Limits op Station Grounds.</p> <p>fi. The entire space between the shortest switch connections with the main line in a railroad yard is within the yards or station grounds that need not be fenced under Section 5146 of B. & G. Comp.</p>

<p>Appeal From Justice’s Court — Effect of Defective Transcript on Jurisdiction of Justice’s Court.</p> <p>1. On appeal from a justice’s- court, the filing of a transcript, though imperfect, with 1he clerk of the circuit court within the time allowed by law, gives the circuit court jurisdiction.</p> <p>Defective Transcript From Justice’s Court — Rigi-it to Rule to Supply Diminished Record.</p> <p>2. Where an appeal from a justice’s court is taken in good faith, and the necessary undertaking given and the transcript filed with the clerk of the circuit court within the time allowed by law, appellant is entitled to a rule to compel the justice to amend and correct his certificate so as to show the facts.</p>

<p>Basements — Way of Necessity.</p> <p>1. Where a parcel of land sold out of a larger tract is not accessible from any public highway, being surrounded by land of other owners except where touched by the remaining property of the grantor, the deed impliedly conveys also a right of way over the latter tract to a highway.</p> <p>Use as Notice of Existence of an Easement.</p> <p>2. The open and visible use of an easement — as, a road — is notice to a purchaser of the servient estate of the existence and extent of the right.</p>

<p>Consideration of Constitutional Questions.</p> <p>1. Courts should not pass upon constitutional questions when the case at bar can logically be disposed of on other grounds.</p> <p>Mandamus — Precedent Conditions.</p> <p>2. To authorize the issuance of a writ of mandamus, the petitioner must show first, a legal right in himself to have the act done which is sought by the writ; and, second, that it is the plain legal duty of defendant to perform the act, without discretion to do or refuse it.</p> <p>County Court — Declaring Result of Local Option Election.</p> <p>3. Under the Local Option Act of 1904 (Laws 1905, pp. 41, 47, c. 2. §10), after the returns of an election on the question of prohibiting the sale of liquors have been abstracted, and a majority of the votes appear for prohibition, it is the imperative duty of the county court, sitting specially under the provisions of this act, to at once make an order declaring the result and forbidding the sale of intoxicating liquors within the prescribed limits.</p> <p>Mandamuus to County Court to Prohibit Sale of Liquors Under Local Option Law — Pleading.</p> <p>4. A writ of mandamus directing a county court to make an order declaring the result of'an election and prohibiting the sale of intoxicating liquors in a certain district, should show specifically that all the conditions legally required for such an order have been fulfilled, as, for instance, that a petition of the required per cent of qualified voters was properly filed, and that the election was ordered and was held in pursuance of such order.</p> <p>Mandamus — Pleading Conclusions.</p> <p>5. Where a matter is collateral to the essential act involved, it is usually sufficient to allege it generally, as, that a certain election was duly held, or that one purporting to be a public officer was duly elected, but that will not do when the existence of the ultimate fact is the very question in dispute, then the basic facts must be set forth in detail.</p> <p>Construction of Writ on Demurrer.</p> <p>6. A demurrer to an alternative writ of mandamus, is a convenient means of testing its sufficiency, and the writ will be construed against the pleader when so tested. •</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Bean. This is a suit by Multnomah County against the Title Guarantee & Trust Co. and others to. set aside and cancel a compromise agreement or settlement of a controversy between the plaintiff and the defendants concerning the validity of certain tax certificates held by the plaintiff against block 178 in the City of Portland, and 80 acres of land in the Quinn donation land claim, in or near that city.

From Umatilla: William B. Ellis, Judge. Statement by Mr. Ciiiee Justice Wolverton. This is an action for damages by Margaret Busch against John F. Bobinson. The plaintiff, an employee of the defendant, while at work in a laundry, of which the latter was proprietor, feeding a mangle, slipped, and, falling forward, her right hand was caught between the rollers and seriously injured.

<p>Road of Public Easement to Residence — Refusal to Confirm Report of Viewers for Inadequacy of Damages.</p> <p>1. Under Section 22 of the act of 1903, relating to the establishment of roads from existing legal public roads to -isolated residences (Laws 1903, pp. 262, 269), the county court cannot refuse to confirm the report of the viewers because the damages allowed are inadequate, where that fact must be shown by evidence.</p> <p>Sufficiency of Petition for Road to Private Residence.</p> <p>2. A petition for the location of a road from an existing legal public road to an isolated residence under Laws 1903, pp. 262, 269, §20, need not contain any facts or statements other than those required by the statute.</p> <p>Report of Viewers as to Location of Road to Residence.</p> <p>3. Under Section 21 of the act of 1903, relating to the laying out of a road from an existing legal public road to an isolated residence, the viewers need not locate such road on the most desirable route, since the statute does not so require.</p>

From Sherman: William L. Brabshaw, Judge. Statement by Mr. Justice Moore. This is an action by George Abbot against the Oregon Railroad & Navigation Co. and the Columbia Southern Railway Co. to recover damages for a personal injury alleged to' have been sustained by plaintiff while, a passenger of the defendant companies, and caused by their negligence in failing to maintain a railing at, and in omitting to keep a lamp burning on, a depot platform jointly used by them.

<p>From Union: Robert Eakin, Judge.</p> <p>Statement by Mr. Chief Justice Wolverton.</p> <p>This is an action by Settie E. Rice against Wallowa County, for the recovery of damages for personal injuries received by plaintiff while in the act of crossing a bridge upon the public highway which broke down, precipitating her into the bed of the stream below, thereby, as the complaint sets out, “crushing and bruising the plaintiff and breaking her breastbone and rib, and otherwise producing serious and lasting internal injury to her.” The complaint further alleges:</p> <p>“That the said dangerous and defective condition of the said county and public bridge was well known to the defendant county, and was due to the said county’s gross carelessness and negligence, and said county had, through its agents and officials having supervision thereof, allowed the stringers of said bridge to become rotten and unsound by reason of having been in said bridge many years, which defective condition was known to the defendant, which had by its agents refloored the said bridge during the year and summer of 1902, and used the said rotten stringers again, wilfully neglecting to replace them with sound stringers, and this rotten condition of the said stringers and neglect on the part of the county was the direct cause of the said accident.”</p> <p>A trial was had before a jury, resulting in a verdict of $1,650. At the close of plaintiff’s testimony, defendant moved for a judgment of nonsuit, which motion being denied, the trial was-concluded, resulting in a judgment for plaintiff, from which defendant appeals.</p>

<p>From Marion: William: Galloway, Judge.</p> <p>Mandamus by J. F. Calbreath, as Superintendent of the Oregon State Insane Asylum, against F. I. Dunhar, as Secretary of State. From a judgment denying the writ, relator appeals.</p>

<p>Administrators — Agreement for Lien on Lands — Validity—Statute of Frauds.</p> <p>Where an administrator and another had succeeded to all the interests of the estate, and, the personal property being exhausted, such parties agreed that the commissions due the administrator, together with moneys advanced by him individually, should be a lien on the lands of the estate, and in pursuance of the agreement the administrator entered Into possession of the lands, and it was agreed that the profits should be divided according to the interest of the parties, the agreement was void, under the statute of frauds, and the administrator not entitled to enforce his lien in* equity.</p>

<p>From Union: Robert Eakin, Judge.</p> <p>Action by J. F. Alden against the Grande Ronde Lumber Co. From a judgment for plaintiff, defendant appeals.</p>

From Harney: George E. Davis, Judge- Statement by Mr. Justice Bean. This is a suit by Etta Hayes against Horace M. Horton for partition of real property. The plaintiff and defendant were wife and husband from December, 1888, to April 27, 1903, when they were divorced by a decree of the circuit court for Harney County in a suit brought for that purpose by the defendant.

From Baker: Robert Eakin, Judge. Statement by Mr. Justice Bean. This is a suit by F. F. Curtze and others against the Iron • Dyke Copper Mining Co. and others to foreclose a mortgage on certain mining property in Baker County and on a right of way for a railway from Huntington down Snake River to or near such property. The plaintiffs and the defendant Charles M. Reed are all residents of Erie, Pennsylvania.

<p>From Multnomah: Melvin C. George, Judge.</p> <p>Suit by Matthew Ryan against Michael and Ellen Galvin, resulting in a decree, from which defendants appeal.</p>

From Marion: Eeuben P. Boise, Judge. Statement by Mr. Justice Bean. This is a mandamus proceeding by C. A. Sehlbrede to compel the State Land Board to issue to plaintiff a deed for state lands alleged to have been purchased by him.

From Morrow: William R. Ellis, Judge. Albert H. Rea and Charles Matteson were convicted of horse stealing and appeal. The. case was submitted on briefs under the proviso of Rule 16: 35 Or. 587, 600.

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Jesse Eddy appeals from conviction of robbery.</p>

<p>Appeal from Multnomah County.</p> <p>These were actions by John Allesina against the above named fire insurance companies on certain policies of insurance.* The general history of the cases appears in the report of Allesina v. London Ins. Co. 45 Or. 441 (78 Pac. 392). Defendant appealed in each ease.</p>

<p>Appeal from Multnomah County.</p>

Suit by Mary H. .Hanley' against Ellen Jane Kubli and another for the admeasurement of dower. There was a decree as prayed for qnd defendants appeal.