Volume 47 — Oregon Reports

From Multnomah : Arthur L. Frazer, Judge. Statement by Mr. Justice BeaN. Suit by the Oregon Transfer Co. and others against the City of Portland and others. The plaintiffs are the owners of blocks 217 and 225 in Couch’s Addition to the City of Portland, fronting on Tenth Street.

<p>From Marion: George H. Burnett, Judge.</p> <p>Action by M. E. Pogue against N. Simon, in which there was a judgment for defendant.</p>

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Moore. This action was instituted August 28, 1903, by Octavia Ausplund' against J. W. Higgins ánd the iEtna Indemnity Co. to recover damages for the breach of an agreement.

<p>Master and Servant — Injury to Employee — Responsibility op Master por Negligence op Vice Principal.</p> <p>1. under Laws 1903, p. 20, making railroad companies liable for injuries to employees resulting from the wrongful act of an agent or officer superior to the employee inj ured, a railroad company is responsible to a common laborer in a construction gang for the negligence of the foreman having charge of the gang and control of the conduct and services of the employees therein'.</p> <p>Master and Servant — Contributory Negligence by Obeying Orders op Superior.</p> <p>2. A common laborer in a railroad construction crew, superintended by a foreman having charge of both the laborers and the operatives of a ballast train, has a right to assume that the foreman will not needlessly expose him to danger, and is not guilty of contributory negligence in going between the cars of the train to couple the air hose in obedience to the foreman’s order, without notifying the trainmen of his action.</p> <p>Remitting Part op Verdict —New Trial.</p> <p>3. where the trial court deems the damages rendered for personal injuries excessive, it may overrule a motion to set aside the verdict on condition of a remittitur of the excess over what it deems proper.</p> <p>Appeal — Excessive Damages as Ground por New Trial.</p> <p>4. The refusal of the trial court to set aside a verdict and grant a new trial because the damages allowed were excessive is not reviewable.</p> <p>Damages — Personal Injuries — Excessive Verdict.</p> <p>5. In an action for injuries to a common laborer, whose leg was crushed so that it had to be amputated below the knee, a verdict for $15,000, as reduced by the trial court to $9,450, is not so excessive as to plainly show bias or prejudice, and will not be disturbed on appeal.</p> <p>Interest — unliquidated Damages.</p> <p>6. under B. & C.' Comp, g 4595, defining the rate of interest “ on judgments and decrees for the payment of money,” interest on unliquidated damages arising out of a tort does not run until judgment.</p> <p>Trial —Discharge op Jury — Appearance op Prejudice.</p> <p>7. The trial court should release a j ury from consideration of a case when it is made to appear that by reason of facts existing at the time the jury was impaneled, bat unknown to the court, or facts occurring afterwards, members of the j ury are subject to such bias or prejudice as not to stand impartially between the parties.</p> <p>AppealHig-ht to Modify and Affirm Judgment at Law.</p> <p>8. In a law action the supreme court may modify a judgment when the excess is apparent and ascertainable from the record, and affirm the judgment as modified.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chief Justice Wolverton.</p> <p>This is an action by William Horn against the United States Mining, Securities & Trust Co. On June 9, 1904, plaintiff filed a complaint against the above-named defendant, containing three counts, to which the defendant, on October 5, interposed a motion to strike out parts of it. Afterwards, on October l'O, that being the first day of the regular term of the circuit court at Roseburg, the motion was called up by plaintiff’s counsel, and, there being no further appearance in behalf of defendant, it was overruled. Two days later, the defendant failing further to appear or otherwise plead to the complaint, judgment was rendered for plaintiff for want of an answer. Subsequently defendant applied to the court for a vacation of the judgment and for leave to answer over, and, being unsuccessful, brings its appeal.</p>

From Marion: William Galloway, Judge. Statement by Me. Justice Bean. This is a suit by Walter Whelan against L. H. McMahan and another for a decree setting off a judgment for $47 and costs, recovered by the plaintiff against the defendant in the justice’s court for Salem district, against two judgments recovered by the defendant against the plaintiff in the circuit court for Marion County.

<p>From Marion: William Galloway, Judge.</p> <p>Mechanic’s lien suit by John Gray against M. L. Jones and wife, wherein plaintiff was decreed a small sum.</p>

<p>From Multnomah : Arthur L. Frazer, Judge.</p> <p>Action on a bond by J. A. McKinnon against J. W. Higgins and another. Judgment for plaintiff, and the other appeals.</p>

<p>From Umatilla: William R. Ellis, Judge.</p> <p>Defendant appeals from decree entered.</p> <p>For appellant there was a brief with oral arguments by Mr. James A. Fee and Mr. John McCourt.</p> <p>For respondent there was a brief and an oral argument by Mr. William McDowell Peterson.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice Bean.

From Marion: George H. BurNett, Judge. This is a replevin action by Samuel Casto against Emma Murray and others, resulting in a judgment for defendants. After the transcript had been filed the respondents moved for permission to supplement the record, which was overruled, and upon final consideration the judgment was affirmed. Statement by Mr. Justice Moore.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justioe Bean. This is a suit by Peter Peterson against C. J. Creason, to enforce an indemnity contract. The facts are these: In April, 1894, Edward, George and Rose Bushey were the joint owners of a large tract of land near the City of Rose-burg, which was mortgaged to David Grenot for about $7,000. The Busheys desired to lay off a part of the land into town lots for sale.

From Multnomah: Alfred F. Sears, Jr., Judge. This action was commenced by J. H. McClung against W. E. McPherson in a justice’s court of Multnomah County to recover the .possession of certain real property, and, the cause being at issue and tried, plaintiff secured the judgment.

<p>Building and Loan Association — Complaint in Suit fob Cancellation of Mobtgage.</p> <p>1. A complaint in a suit to cancel a mortgage for usury, on the theory that the mortgagee was a building and loan association, which shows merely that defendant is a corporation, that plaintiff executed and delivered to it a certain mortgage by which he promised to pay it a specified sum with interest at a given rate and a monthly premium, the two amounting to more than the highest legal interest, with certain dues on sundry shares in said association, is not sufficient, since it does not thereby appear that the defendant is a building and loan association at all, or an organization having an unlawful plan ot operation, or that plaintiff owned the stock on which he paid monthly assessments, thus not showing any intent or conduct in violation of the interest laws.</p> <p>Pleading Facts — Omitting Conclusions.</p> <p>2. A pleading should state the facts on which the pleader relies, leaving the conclusions to be deduced as matters of law. For instance, an allegation that the pleader had repaid in full a certain loan, is merely a statement of a conclusion, the dates and amounts of the payments should have been set out.</p> <p>Rule eor Construing Pleadings.</p> <p>3. A pleading should be construed against the pleader in case of doubt, when considered on demurrer.</p>

From Marion: Reuben P. Boise, Judge. Statement by Mr. Justice Moore. This is a suit by W. H. Holmes against A. G. Wolfard to determine an adverse interest in real estate.

<p>Portland Charter — Constitutionality oe Sections 400 and 401.</p> <p>1. Section 400 of the Portland Charter of 1903 is not void under the Fourteenth Amendment to the Constitution of the United States, or under sections 10 or 18 of Article I of the Constitution of Oregon, and it is retroactive in its effect, and section 401 of said charter is not void under Const. Or. Art. VII, § 9.</p> <p>Construction oe Section 400 oe Portland Charter oe 1903.</p> <p>2. Section 400 of the Portland Charter of 1903, relating to reassessing benefits received through void public improvements, is intended to afford the city a supplementary remedy for collecting the costs of improvements undertaken in good faith, but annulled by the courts.</p> <p>Conclusiveness of Action oe Council tn Reassessing.</p> <p>3. Under Portland Charter of 1903, § 400, authorizing a reassessment for local improvements in case of the invalidity of the original assessment, and requiring notice of the reassessment to be given to abutting property owners, so that they may file objections thereto, and further requiring a hearing on such objections and a determination of their validity, the determination of the council that the objections are invalid is conclusive, and the question cannot be collaterally raised, unless the council has proceeded fraudulently in making the reassessment.</p> <p>Charging Fraud oe Council on Reassessment.</p> <p>4. In attacking the good faith of the council in making a reassessment under section 400 of the Portland Charter of 1903 the fraud alleged must relate to the new proceeding.</p> <p>Insufficient Plea of Fraud by Council.</p> <p>5. In a suit to annul a local improvement assessment, an allegation in the complaint that the board of public works accepted the improvement in reliance upon the fraudulent representations of the contractors and the city engineer is insufficient to charge the board of public works with fraud in accepting the improvement.</p> <p>Reassessment not an Abuse of Taxing Power —Constitution.</p> <p>0. A reassessment for local improvements, under Portland Charter of 1903, § 400, authorizing such reassessment where the original assessment has been adjudged invalid, cannot, in the absence of fraud on the part of the city council in making the reassessment, or the boai’d of public works in accepting the improvement, be regarded as an attempt to raise money for the private use of the contractors and holders of warrants under the taxing power of the municipality, in violation of Const. Or. Art. XI, § 9.</p> <p>Effect of Acceptance of Improvement by City Authorities.</p> <p>7. In the absence of fraud, the acceptance of a local improvement by the public authorities is conclusive as to the manner in which the work was done, as against collateral attack.</p> <p>Notice of Resolution to Reassess for Local Improvements.</p> <p>8. Under Portland Charter of 1903, § 400, authorizing a reassessment for local improvements in case of the invalidity of the original assessment, the council need not, in the absence of charter requirement, give abutting owners notice, nor afford them a hearing, prior to adopting the resolution directing the city auditor to prepare a preliminary reassessment, and the absence of notice does not make the proceeding arbitrary.</p> <p>Requirements of Reassessment Proceedings.</p> <p>9. The proceedings connected -with reassessing property for local improvements, under section 400 of Portland Charter of 1903, are entirely statutory and no other proceedings or forms are required than are there prescribed.</p> <p>Sufficiency of Reassessment Notice.</p> <p>10. The notice of reassessment given in this matter under section 400 of the Portland Charter of 1903 was sufficient, as it contained every statement required.</p> <p>Municipal Corporations — Adjournment of Meeting — Quorum.</p> <p>11. A charter provision that a less number of the council than a quorum may adjourn from time to time, is not affected by an ordinance providing that if a quorum is not present, the chief of police shall notify the absentees to appear, but if they still absent themselves, the members present shall adjourn to the next regular meeting, the ordinance applying to only those instances in which the chief of police acts. Therefore, where there is no quroum present and the chief of police does not notify the absentees to attend, the members present may adjourn to a date specially set, under the charter section, and need not adjourn to the next regular meeting in accordance with the ordinance.</p> <p>Proceedings of Municipal Councils —Presumption of Regularity.</p> <p>12. In the absence of affirmative proof to the contrary, it will always be presumed that the proceedings and adjournments of municipal deliberative bodies were regular and valid.</p> <p>Deliberations of Council — Continuance of Business.</p> <p>18. A motion of a city council that the matter of a reassessment be “continued on the table” until the next regular meeting, while expressed in inappropriate language, should be construed to effect a continuance of the business, and should not be construed as operating to lay the matter on the table, and thereby deprive the council of jurisdiction thereof.</p> <p>Objections to Assessment — Presumption of Regularity of Proceedings.</p> <p>14. Where the minutes of the meeting of a city council do not show what was done with objections to a reassessment for local improvements, and the reassessment ordinance was passed notwithstanding the objections, it will be assumed that they were considered by the council and found to be without merit.</p> <p>Effect of Reassessment on Original Warrants.</p> <p>15. The reassessment for local improvements, provided for by Portland Charter, 1903, g 400, in case of the invalidity of the original assessment, is merely supplementary to the regular proceedings, and is effective, not only to secure a valid assessment of benefits, but to reach bach and validate the improvement warrants issued under the original proceeding, so far, at least, as the reassessed benefits are sufficient for that purpose.</p>

<p>Execution Against the Person — Requisite Judgment.</p> <p>1. under Section 218, B. & C. Comp., providing for an execution against the person of a debtor under certain circumstances, the writ may be issued though the judgment did not recite the entry of an order for the arrest, or the issuance of the writ of arrest, or direct an execution against the person of the defendant.</p> <p>Judgment — Specification of Execution.</p> <p>2. It is not essential to the validity of an execution that the j udgment on which it is based shall specify the nature of the writ, since the relation between the j udgment and the execution is determined by law and not by a court order.</p> <p>Bail in Civil Action — Return of Writ of Arrest.</p> <p>3. A writ of arrest having issued, and the defendant having given bail while in custody on such writ, the validity of the bail bond is not affected by the failure of the sheriff to return the writ until after the entry of j udgment.</p> <p>Bail in Civil Action — Presence and absence of Defendant.</p> <p>4. The condition of a civil bail bond being that defendant would at all times be amenable to the process of the court, the fact that he was about the court room during the term at which the case was tried, is no defense to an action on the bond, where he could not subsequently be found to answer to an execution against his person following the giving of the bond.</p> <p>Collateral Attack on Judgment.</p> <p>5. In an action on a civil hail bond, the sufficiency of the complaint on which the bond is based is conclusively established by the entry of a judgment thereon.</p>

From Douglas: James W. HamiltoN, Judge. Statement by Mr. Chief Justice Wolverton. This is a suit by William Horn against the United States Mining, Securities & Trust Co., and Arthur Rowley, to foreclose an alleged mechanic's or miner’s lien.

<p>Assumption op Risk by Immature Servant.</p> <p>1. A servant of immature years assumes such ordinary hazards or risks of his employment as he, through his degree of intelligence, knows or should know and appreciate, and consequently assumes such dangers as are so open and obvious to the senses that one of his capacity and experience should, in the exercise of the care and prudence common to persons of like age and experience, know and appreciate, but not others.</p> <p>Danger op Exposed Cogs and Gearing — Assumption op Risk.</p> <p>2. The danger from exposed cogs and gearing is obvious even to a boy of sev_ enteen, and is fairly a risk the danger of which he assumes by remaining at work in the exposed position.</p> <p>Negligence op Master — Contributory Negligence op Servant-Question por Jury — assumed Risk.</p> <p>3. Whether a master was negligent in regard to the causes of an injury to a servant caused by'his hand being caught in exposed cogwheels as he was falling on a slippery floor where he was obliged to work, and whether the immature servant was guilty of contributory negligence under the circumstances, are properly left to the jury, since their determination involves questions of care and precaution by both parties.</p>

<p>From Lake: HeNEY L. BeNSON, Judge.</p> <p>Action by Lake County against A. B. Schroder. From a judgment of dismissal, plaintiff appeals.</p>

From Jackson : Hiero K. HaNNa, Judge. Statement by Mr. Chief Justice WolvertoN. This is an action by William L. Mee against the Bowden Gold Mining Co. upon a contract for services performed.

<p>Impeachment of Award fob Misconduct of Abbitbatobs.</p> <p>1. A party claiming to be injured in an award through the misconduct of the arbitrators may maintain a suit in equity to set aside the award; but in Oregon the defense of misconduct is not available in a law action on the award, since in this State the distinction between law and equity is still retained.</p> <p>Pleading —Joining Legal and Equitable Defenses.</p> <p>2. Section 74, B. & 0. Comp., authorizing a defendant to set forth by answer as many defenses as hemay have, does not permit the joinder of legal and equitable defenses.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by J. E. Kaston and others against W. A. Story, sheriff, and O. F. Paxton, to enjoin the sale of real property under an execution issued on a judgment at law. The facts are these: On July 7, 1902, Jennie Y. Wade obtained a decree against Lundin and wife, foreclosing two mortgages given by them on the real property in question. An execution was issued on the decree, and the property sold on August 20, 1902, for more than sufficient to satisfy the decree, costs and expenses. After the sale, and before the confirmation thereof, Leonard and Wolff commenced an action at law against Lundin and one Lang-ford to recover money, and such proceedings were thereafter had in the action that on September 8, 1902, a judgment was recovered against Lundin and Langford, which was duly entered in the judgment lien docket on the same day. A few days later the sale under the foreclosure decree was confirmed. Before the time for redemption had expired, however, Lundin and wife conveyed the mortgaged property by deed to the plaintiff Kaston, who on the 22d of August, 1902, redeemed from the sale under the Wade decree. The judgment at law in favor of Leonard and Wolff and against Lundin had in the mean time been assigned to the defendant Paxton, who, after the redemption by plaintiff, caused an execution 1o be issued thereon, and the real property in question levied upon and advertised for sale to satisfy the same. This suit was commenced by'Kaston to enjoin such sale, and from the decree in his favor the defendants appeal.</p>

From Marion: George H. Burnett, Judge. Action by Geo. J. Wolfer against W. S. Hurst and H. A. Hinkle to recover possession of real property. A motion to dismiss the appeal was'overruled pursuant to an opinion by Mr. Justice Moore, and the judgment appealed from was afterward affirmed, the opinion being written by Mr. Chief Justice Wolverton. The facts appear in the opinions.

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Chief Justice Wolverton.</p> <p>This is a suit for an injunction by Susan M. Davis against the City of Silverton and its Chief of Police. The amended complaint sets out that the City of Silverton is a municipality; that C. N. Matlock is its chief of police; that plaintiff is the owner of lots 3 and 12 in said city; that said lots abut on First Street; that plaintiff had formerly constructed along the line of her lots on First Street a stone wall, of the reasonable value of $200; that on August 3,1903, the common council of the city passed Ordinance No. 47, entitled :</p> <p>“An ordinance ordering First Street from the south line of Lewis Street to the south line of A Street in Brown’s Addition to Silverton improved, making assessment against the abutting property to defray the expenses of the same, and fixing the time and manner of the payment of such tax.”</p> <p>A copy of the ordinance is then set out and it is alleged that thereafter —</p> <p>“The said defendant by and through its common council, and by virtue of the said Ordinance No. 47, without any authority of law, and assuming that the said Brown’s A ddition had been legally dedicated and laid out as required by law, undertook to improve and widen said First Street, as known with reference to Brown’s Addition, in said City of Silverton, and in so doing wrongfully and unlawfully undertook to condemn and convert to its own use a certain portion of said plaintiff’s property abutting on said First Street, and against her protest tore down and destroyed her said stone wall on her said property, as hereinbefore alleged, and attempted to convert said property to its own use with reference to said street as claimed to exist by said defendant, to plaintiff’s damage in the sum of $200, and without any legal right whatsoever, and without any pretended authority whatever, except as claimed by said defendant under said Ordinance No. 47, and the further proceedings with reference thereto.”</p> <p>These proceedings are stated as follows:</p> <p>“That on or about the 14th day of December, 1903, the common council of defendant undertook with reference to the condemning and appropriating tbe'property of said plaintiff as aforesaid, passed Ordinance No. 48, entitled ‘A bill for ordinance to provide for notice to parties in relation to assessment of property for street improvements.’ ”</p> <p>This ordinance also is then set out in full.</p> <p>It is further alleged that thereafter defendant, through its common council, passed Ordinance No. 49, entitled:</p> <p>“A bill for an ordinance declaring the cost of improvement of First Street, from the north line of Lewis Street, to A Street, in Brown’s Addition to the City of Silverton, and directing the share thereof for each lot or part thereof, or parcel of land abutting on said street, and directing the entry thereof in the docket of city liens.”</p> <p>The pleader then gives this entire ordinance, which recites, among other things, the following:</p> <p>“That the proportionate share of the hereinafter described property for the cost and expense of making said improvement on the part of First Street in front of and abutting on said property to the center of the street is $113.60, and that the proportionate share of the cost of said improvement to be assessed against said property is $113.60 ; that there be and is hereby assessed against said property for the proportionate share of said improvement the sum of $113.60; that Susan M. Davis is the owner thereof, and said property is described as follows: Lots number 3 and 12, in the Town of Silverton, south, County of Marion, State of Oregon, according to the Silverton town plat, and containing one half acre of land.”</p> <p>It is further alleged that thereafter, the plaintiff refusing to pay her assessment, a warrant was by resolution of the council issued and placed in the hands of the chief of police, who is now threatening to execute the same by levy and sale of plaintiff’s said lots for the purpose of making the amount of said pretended assessment. This allegation then follows:</p> <p>“That the said City of Silverton, under its charter and act of incorporation, is now clothed with no authority or power to undertake to appropriate private property in the manner attempted in the proceedings as set out in this complaint, and that the said City of Silverton, defendant herein, attempted to widen said First Street, and attempted to make the same 60 feet in width, and that the only proceedings taken by the said council of defendant in its attempt to widen said street are as hereinbefore set forth; that if the said First Street were permitted to remain widened as the said council has attempted by its said proceedings, the curbing line on said street would be and is now located, after the destruction of the said stone wall as aforesaid, upon the property of the plaintiff herein, there being no provision made whatever for a sidewalk.”</p> <p>Finally, it is alleged that, unless restrained, the chief of police will execute said warrant.</p> <p>The relief demanded is that defendant be enjoined from futther attempt to enforce the payment of the said assessment, and that plaintiff have a decree against defendant in the sum of $200 for damages sustained in the destruction of her said stone wall. There was a demurrer to the complaint, which was overruled, and the defendants answered, setting up some further and separate matter. The trial resulted in a decree enjoining further proceedings on the part of the city, and adjudged damages against it in the sum of $50, from which defendants appeal.</p>

From Marion : George H. Burnett, Judge. Statement by Mr. Justice Moore. This is an action by A. C. Keene against Nancy 0. Eld-riedge for money had and received to plaintiff’s use. The action was commenced by filing a complaint of which the following, omitting the formal parts, is a copy: “First.

<p>Boundaries — Redative Importance oe Cades in Surveys.</p> <p>1. Calls in a survey for natural objects or marked lines and corners prevail over calls for courses and distances, if tlie calls of the former character are clearly established; but if the evidence leads to tlie conclusion that the mistake is in the calls for natural or artificial objects, and not in those for courses and distances, the rule is the reverse.</p> <p>Boundaries —Estopped by Participation in Location.</p> <p>2. Where a highway as laid out divided two tracts of land, and plaintiff assisted the owner of one of them in locating his fence along the highway, and worked the road on one or two occasions, and plaintiff at such times had a contract for the purchase of the other tract, but it was surrendered, and he did not purchase it until after such location and working, he was not estopped to insist that the fence in question was in the highway.</p>

<p>Motion to recall a mandate.</p>

<p>From Umatilla: William R. Ellis, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a proceeding by writ of review instituted by the Oregon Railroad & Navigation Co. to annul and declare void an order of the county court of Umatilla County, levying a tax upon the property of the plaintiff, as shown by the assessment roll for the year 1903. The petition for the writ contains many averments which are denied by the answer or return, but, as questions of fact cannot be tried in this proceeding, they will not be further noticed. From the return to the writ it appears that each page of the assessment roll for 1903 was divided horizontally into 29 lines, and perpendicularly into 34 columns. At the top of the perpendicular columns were printed the words : “Name of Taxpayer”; “Description of Land”; “Section”; “Township”; “Range”; “Name of Recorded Town or City”; “No. of Miles R. R. Bed, Tel’p, Tel’g, Etc. Line”; “School Districts”; “Road Districts”; “Name of Incorporated City or Town,” and the like. In making up the roll, the assessor subdivided, described and valued the property of each taxpayer with reference to its location in the several school and road districts and incorporated towns and cities of the county, and therefore the assessment of the plaintiff covered nine or ten pages of the roll. At the upper left-hand corner of each page of such assessment, in the column headed “Name of Taxpayer,” are written the letters and word “O. R. & N. Co., The,” and at the bottom of the page the abbreviated word “Contd,” but the name of the taxpayer is not entered in the roll opposite the description of each separate parcel of property, nor is it indicated by ditto marks. -</p> <p>Among the property assessed to the plaintiff are some 22 lots in three different blocks, in what is entered in the column headed “Name of Recorded Town or City” as “Res. Add. Pend.,” and in the column headed “Name of Incorporated City or Town” as “Pendleton.” So that the description as it appears in the roll, taking one lot as an example, would be “Lot 6, Block 3, Res. Add. Pend., City of Pendleton.” There is also assessed to the plaintiff telegraph lines, which were entered in the column headed “Description of Land” as “One Wire System Telegraph” or “Two Wire System Telegraph,” as the case might be, and in the columns headed “Name of Incorporated City or Town,” “Road District,” and “School Districts,” are entered the names of the towns and numbers of the districts, and, in the column headed “No. of Miles R. R. Bed, Tel’p, Tel’g, Etc. Lines,” figures indicating the number of miles of line assessed, so that the description would be,**</p> <p> </p> <p>for example, “1.95 miles of one wire system telegraph in the City of Pendleton and School District Number 16j” or, “6 10-100 mi'les of two wire system telegraph in School District Number 5, Road District 18, and Town of Echo.” Immediately following the assessment of the two wire system of telegraph, and entered in the column headed “Description of Land,” are the initials “R. of W.,” and in the column headed “No. of Miles R. R. Bed, Tel’p, Tel’g, Etc. Lines” are figures evidently intended to indicate the number of miles of “R. R. Bed” or “R. of W.” in the various road and school districts and incorporated cities and towns through which the road passes; so that the description would read, for example, “3.20 miles of R. R. Bed or R. of W. in road district number 50, and school district number 17.”</p> <p>After the roll had thus been made up, the assessor gave notice, as required bylaw, of the time and place of meeting of the board of equalization, and the plaintiff appeared before such board by its tax agent, and, without objecting in any way to the listing of its property or the description thereof on the assessment roll, or claiming that it had been assessed with property it did not own, filed a petition for the correction of its assessment, first by reducing the valuation of “its roadbed and track, consisting .of 166.40 miles, from $12,000 to $5,500 per mile, or from a total of $1,996,800 to $915,000”; second, “the depot grounds in the City of Pendleton from the assessment of $21,000 to $6,400”; and, third, “the materials and supplies” for repairs and improvements to the road from “$24,850 to nothing.” This petition was not disposed of by the board of equalization, but was continued for the consideration of the county court, and such court denied the reduction in the valuation of the roadbed, but reduced the assessment of the depot grounds in Pendleton to $10,-000, and eliminated the assessment for materials and supplies.</p> <p>At the January term, 1904, of the county court, the county judge, two commissioners, the district attorney, county clerk and sheriff all being present, the following order was made and entered of record:</p> <p>“ In' the Matter of Tax Levy for 1904.</p> <p>Now on this day the summary of the assessment roll of Umatilla County, Oregon, showing real and personal property assessed to the amount of $9,214,630.72, and polls assessed to amount of $_,the above being the net assessment of Umatilla County, upon which the county court of said county is authorized by law to make the levy of 1903, it is Ordered by the Court that a tax of twenty (20) mills be levied upon the net assessment of real and personal property as returned by the assessor for the year 1903, to wit, on the sum of $9,214,630.72, to be divided as follows: For state and county, fifteen and eight tenths mills (15 8-10) on each dollar’s worth of taxable property, payable in coin ; for school purposes, four and one tenth mills (4 1-10) on each dollar’s worth of taxable property, payable in coin ; and for road purposes one tenth of one mill (1-10) on each dollar’s worth of taxable property, payable in coin.</p> <p>It is Further Ordered, that the clerk of this court make a transcript of said assessment and extend the taxes in accordance with the levy as above made by this court, and that the said clerk shall attach a warrant to said transcript of assessment and deliver the same to the Sheriff of Umatilla County, Oregon, which said warrant shall authorize the collection of said taxes for the year 1903 by said sheriff, and the said sheriff be charged with the amount of said levy on said amount of $9,214,630.72, at the rate of twenty (20) mills on the dollar, and $1,000 polls-returned in said assessment for the year 1903, by the said assessor.”</p> <p>The journal containing the order was signed by the county judge, probably at the time it was entered, but not by the commissioners until after this proceeding was instituted. The tax thus levied, together with the levies in the several road and school districts and incorporated cities and towns of the county, were extended by the county clerk, and on February 15, 1904, the. assessment roll, together with a warrant as authorized by law for the collection of the taxes, was delivered by the clerk to the sheriff. In May following, this proceeding was instituted. On the final hearing before the circuit court, the writ was sustained as to certain property, the description of which was so indefinite as to be void on its face, but denied as to the remainder. From this decision plaintiff appeals, claiming that the order of the county court levying the tax is void and of no force or effect, because not in compliance with the statute, and that the roll itself was insufficient to sustain such order, and plaintiff’s property was not properly described therein.</p>

Action by Nancy Carter against Miles S. Wakeman, resulting in a judgment for defendant, from which an appeal was taken. The case was before this court on a prior appeal: 42 Or. 147 (70 Pac. 393). Respondent now moves to dismiss this appeal.

<p>Appeal — Review op Findings in Absence op Evidence.</p> <p>1. Where no bill of exceptions is in the re.cord, and the evidence is not brought before the supreme court, any error in the findings of fact is not subject to review.</p> <p>Appeal — Conclttsiveness op Findings.</p> <p>2. The supreme court cannot disturb a finding of fact made by a trial court, unless there is no evidence from which such finding may reasonably be inferred.</p> <p>Dismissing Appeal por Want op Subject por Consideration.</p> <p>3. Where no question to be reviewed or considered is presented by the record an appeal should be dismissed.</p>

From Clatsop : Thomas A. McBride, Judge. Statement by Mr. Justioe Bean. This is an action by Reid, Murdoch & Co., against the Alaska Fishermen’s Packing Co. The plaintiff is a Chicago company, engaged in buying and selling salmon, and the defendants an Oregon corporation, with its principal office in Astoria, but engaged in packing salmon in Alaska.

From Clackamas: Thomas A. McBride, Judge. Mortgage foreclosure by Margaret Barringer against John W. Loder and others.

<p>From Polk: William Galloway, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a special proceeding to review a judgment of an inferior court. An accusation was filed in the Recorder’s Court of the City of Independence .against the plaintiff herein, which charge, omitting the formal parts, is as follows:</p> <p>“The said Wong Sing is accused by this complaint with thé crime of selling spirituous or malt liquors in the City of Independence, Oregon, committed as follows, to wit: That said Wong Sing, in the City of Independence, in Polk County, Oregon, did on the 14th day of December, 1904, and the 17th day of December, 1904, then and there being, did then and there sell, or cause to be sold, spirituous and malt liquors, or spirituous or malt liquors, in the City of Independence, without license, and contrary to the laws of the City of Independence, the same being a violation of Section 7 of Ordinance 16, which provides for the punishment of such offenses, and contrary to the statutes in such cases made and provided, and against the peace and dignity of the City of Independence.”</p> <p>A demurrer to this pleading was interposed, on the grounds that more than one offense was attempted to be charged and that the facts so stated do not constitute a crime. The demurrer was sustained as to the date, “the 17th day of December, 1904,” as set out in the complaint, but overruled in all other respects, and, a trial being had, the plaintiff herein was found guilty as charged and sentenced to pay a fine and the costs and disbursements of the action. He thereupon sued out a writ of review, in pursuance of which the proceedings had against him in the recorder’s court in such action, together with a certified copy of Ordinance No. 16, of that city, were certified up to the circuit court for that county, where, upon a hearing based on such return, the writ was dismissed, and from the latter judgment he appeals to this court.</p>

<p>Limitations — Replevin.</p> <p>1. Where, in replevin brought in 1905, defendant and his vendor had been in open, undisputed possession of the property claimed since 1896, claiming ownership in good faith, plaintiff’s action was barred by limitation.</p> <p>Private Writings as Evidence — Proop of Genuineness — Replevin.</p> <p>2. Where, in replevin, defendant claimed to have purchased the property in good faith from R., who testified that he purchased it from one J., whom he believed to be the owner, ih March, 1896, and who had in his possession and delivered to R. what purported to be a bill of sale to him from another, such bill of sale is admissible without proof of its genuineness to show the manner and circumstances under which R. acquired possession.</p> <p>Stock Brand as Evidence — Replevin.</p> <p>3. Where, in replevin to recover a horse, defendant’s vendor testified that after he purchased the animal she was branded with his brand, a copy of which was recorded, such copy was properly admitted in evidence as tending to show good faith.</p>

<p>Guardian and Ward —Effect on Guardian’s Sale of Not Taking-Special *Oath Required by Statute.</p> <p>1. Under Section 5602, B. & C. Comp., requiring a guardian to take a special oath before fixing the time and place of a sale of real property belonging to his ward, the prescribed oath must be so taken or the purchaser at the sale will not obtaiii a good title.</p> <p>Guardian and Ward — Sales by Guardian — Irregularities—Subsequent Validation by Legislature.</p> <p>2. The failure of a guardian, in making a sale of his ward’s land, to take the oath prescribed by B. & C. Comp. £ 5602, before fixing the time and place of sale, as required by such section, does not affect the jurisdiction of thecourt to license or confirm the sale, or of the guardian to make it, but is an irregularity in a matter of procedure, which the legislature could and did cure by Laws 1899, p. 64 l 3, validating guardians’ sales made to purchasers in good faith and confirmed or acquiesced in by the county or probate court, notwithstanding irregularities in making or conducting the same.</p> <p>Curative Statutes — Retroactive Operation.</p> <p>3'. The legislature may, unless prohibited by the constitution, retrospectively validate or legalize judicial or execution sales, although the defects or irregularities therein are such as to render such sales inoperative, provided it does not undertake to infuse life into proceedings utterly void for want of jurisdiction.</p>

From Baker: Samuel White, Judge. Suit for divorce by Lena D. Mills against William E. Mills, in which defendant filed a cross-complaint also asking a divorce. There was a decree dismissing both complaints, from which William E. Mills appeals.

From Marion: George H. BurNett, Judge. Statement by Mr. Justice Bean. This is an action for damages by Charles S. Livesley against G. P. Litchfield and David Steiner. The object of the proceeding is to test the constitutionality of the provision in the charter of the City of Salem prohibiting any person from voting at a city election “who has not paid, unless he be exempt therefrom, a road poll tax for the year in which he offers to vote”: Sp. Laws 1903, 351.

From Clatsop: Thomas A. McBride, Judge. Action by Charlotte Grimberg, administratrix of Emanuel Grimberg, deceased, against the Columbia River Packers’ Association. Plaintiff sues to recover damages for the death of Emanuel Grimberg, alleged to have been caused caused through the negligence of the defendant.

From Multnomah: Arthur L. Frazer, Judge. Action for damages by Matthew Geldard against J. I. Marshall, resulting in a verdict for defendant, from which plaintiff appeals. The main opinion was written by Mr. Chief Justice AVolvertoN, and after his resignation and retirement, a further opinion on a petition for a rehearing was written by Mr. Chief Justice BeaN. Reversed.

<p>Evidence out Other Crime Than That Charged.</p> <p>1. Within the rule concerning evidence of other offenses than the one charged, it is competent to claim, and offer evidence to prove, that a defendant on’ trial for homicide had been physically intimate with an unmarried daughter of the deceased under the age of consent, that she was consequently with child, and that deceased had threatened to prosecute defendant for such conduct, and that the latter was engaged to marry another girl. This is all competent to show a motive for the killing, proper precaution being taken to advise the jury as to the purpose of the evidence.</p> <p>Witness- — Impeaching by Contradictory Statements. ,</p> <p>2. Under Section 853, B. & C. Comp., authorizing the impeachment of a witness by evidence that he has made previous statements inconsistent with his testimony, a witness in homicide cannot be impeached by the production of a transcript of the testimony given by him at the inquest, nor by the reading of the stenographer’s notes of such testimony where the stenographer is unable to say that his notes contain all that the witness stated at the inquest.</p> <p>Expert Witness —Certainty of Objection.</p> <p>3. An objection to a question for incompetency does not support an argument that the witness was not shown to be qualified to express an opinion on the subject referred to, there being a difference between the competency of a question and the competency of the witness.</p>

<p>From Union : Robert EakiN, Judge.</p> <p>Action by Cora Steel against the Island City Mercantile & Milling Co., resulting in a. judgment for plaintiff, from which defendant appeals.</p>

<p>From Grant: Robert EakiN, Judge.</p> <p>Suit for a divorce by Mary Agnes Pope against William M. Pope, in which plaintiff prevailed.</p>

<p>From Union: Robert EakiN, Judge.</p> <p>Action by S. S. Boothe against the Farmers’ & Traders’ National Bank of La Grande, resulting in a judgment for defendant, from which plaintiff appeals.</p>

<p>Effect of Stipulation on Parties Not Signing-.</p> <p>1. A stipulation is binding on only the parties who sign it, and parties to the litigation who do not assent thereto are not precluded by its terms.</p> <p>Mechanics’ Liens —Agency of Contractor foe Owner.</p> <p>2. Section 5610, B. & C. Comp., mailing a contractor for a building or improvement the agent of the owner, creates an agency to bind such owner and his property included in the contract for the reasonable value of materials used and labor employed on the work, but it does not create an agency to determine the value of such materials or labor.</p>

From Marion : William Galloway, Judge. Statement by Mr. Justice Hailey.

From Clackamas: Thomas A. McBride, Judge. Replevin action by the Oregon Iron & Steel Co. against Ellis Hughes, for the possession and ownership of a meteorite discovered by defendant on plaintiff’s land and secretly removed. Plaintiff prevailed.

From Union: Samuel White, Judge. Statement by Mr. Justice Moore. This is a suit by Turner Oliver to enjoin the sale of certain real property on execution.

<p>Principal and Surety — Right to Deliver Incomplete Instrument.</p> <p>1. Where a sheriff delivered a hond to the county court, without signing the same himself, without the names of any of the sureties except one being entered therein or certain other sureties qualifying,and without obtaining the signatures of sureties sufficient to complete che bond, the liability'of the sureties who had signed the bond depends on whether the sheriff had authority to deliver the uncompleted and imperfect instrument as their act and deed, and not on whether there was any definite understanding or agreement between the sheriff and such sureties at the time the instrument was signed by them, that it should not be so delivered.</p> <p>Implied Authority to Deliver.</p> <p>2. A principal’s authority to deliver an uncompleted bond as the act and deed of certain sureties who had signed the same may be implied from the sureties’ acts and conduct.</p> <p>Mere Signing Not Sufficient Authority to Deliver.</p> <p>3. Where certain sureties signed an uncompleted and imperfect bond of a public official, attempting to limit their liability by writing amounts before their names, their mere act in so signing the bond and leaving it with the principal, with any express restriction as to its delivery, is insufficient as a matter of law to show authority of the principal to deliver the bond in its uncompleted condition.</p>

From Baker: Robert Eakin, Judge. This is a suit by Anna M. Morgan, Maud J. Estes, and Albert J. Morgan, the widow and heirs at law respectively of William H. Morgan, deceased, to enjoin the defendant, John B. Shaw, from interfering with the flow of water in the channel of a nonnavigable stream to the head of plaintiffs’ ditches, and to recover damages caused by his diversion of such stream.

From Marion : George H. BurNETT, Judge. J. 0. Ryan, not being entirely contented with a sentence of three years in the penitentiary for participating in a robbery perpetrated by means of a fake foot race, appeals, insisting that his offense, if any, is obtaining money by false pretenses, or a gross cheat at common law.

From Umatilla: William R. Ellis, Judge. This is an action by Thomas J. Price against the Oregon Railroad & Navigation Co. to recover damages for an injury to plaintiff’s property and premises by backwater, alleged to have been caused by the negligence and unslcill-fulness of .the defendant company in constructing and maintaining a fill on the line of its road from Pendleton to Walla Walla on and over the channel of Hale Creek, near the town of Weston.

From Malheur: George E. Davis, Judge. Statement by Mr. Justioe BeaN. This is a suit by the Moss Mercantile Co. against the First National Bank of Payette, Idaho, to restrain the prosecution of an action at law brought by the defendant bank against William Miller to recover money collected by him on a judgment in favor of Helmick and against Porter.

From Multnomah: JohN B. ClelaND, Judge. Action by A. F. Flegel, as trustee in bankruptcy, against Charles Koss & Bros. Go. and others, resulting in a judgment for defendants, from which plaintiff appeals. The case was submitted on briefs, under the proviso of Rule 16 : 35 Or. 587, 600.

<p>Appeal — Reservation op Ground op Review — Necessity op Exception — Time op Taking..</p> <p>under Section 169 of B. & 0. Comp., defining an exception as an objection taken at the trial to a decision upon matter of law, an exception must be.taken at the trial, in order to obtain appellate review of a ruling on testimony, and the subsequent allowance of such an exception by the trial judge does not cure the omission to take the exception at the proper time.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Suit by P. A. Marquam against J. Thorburn Ross and three corporations, asserting the right to redeem certain real property from a.purchase by Ross at a mortgage foreclosure sale. There was a decree for plaintiff at the circuit. A motion to dismiss the appeal was overruled, the opinion being written by Mr. Chief Justice Moore, and the case was decided on its merits. The main opinion was written by Mr. Justice BeaN.

From Union: Robert EakiN, Judge. Action by Eliza Carroll, as administratrix of the estate of Leonard Carroll, deceased, against the Grande Ronde Electric Company. From a judgment in favor of defendant, plaintiff appeals. I. Electricity being a peculiarly dangerous element, the law raises a presumption of negligence on the part of the person operating the wires conveying it, whenever they are down and injury results : Boydv. Portland Elec. Go., 40 Or. 126 (7 Am. Electl.

From Baker: Samuel White, Judge. Statement by Mr. Justioe Bean. This suit was commenced in June, 1905, by .Elsie L. Mount against Robert McAulay and others to remove a cloud from title caused by a tax deed, and comes here on appeal from a decree entered on a demurrer to the complaint, which avers that from 1893 to the 16th day of April, 1895, L. 0.

<p>Statutory Construction —Intoxicating Liquors.</p> <p>Under the rule of construction declared by Section 707 of B. & C. Comp., .that the legislative intention shall be followed, if possible, it must be held that the council of the City of Forest Grove has not authority, under the charter of 1891, to license the sale of intoxicating liquors. The authority to “regulate,” in view of the history of the charter and the social conditions that have long existed at that point, does not imply the right to licen.se, but rather the right to control the disposal of liquors by some other means.</p>

<p>From Umatilla: William R. Ellis, Judge.</p> <p>Moses Taylor appeals from a conviction of attempted arson. The facts are stated in the opinion. Aeeiemed.</p>

<p>EvioeNCe Considered.</p> <p>1. The evidence shows that the deed under consideration here was intended by the father as an absolute conveyance to his minor son, and that it was not conveyed or accepted in trust.</p> <p>Deed — Advancement —Parent and Child.</p> <p>2. Property voluntarily conveyed by a parent to a child, on a purported consideration of love and affection, is presumptively an advancement, and the deed conveys the title.</p> <p>Conveyance by Infant — Effect of Disaffirmance.*</p> <p>3. A deed by a minor is subject to disaffirmance upon attaining majority, and if disaffirmed, such deed never becomes effective to convey the title.</p> <p>Fraudulent Conveyance — Who Are Creditors.</p> <p>4. One having a right of action for damages resulting from a tort is a creditor of the wrongdoer, within the meaning of Section 5508, B. C. Comp., declaring void as to creditors all conveyances made to hinder, delay or defraud creditors of their lawful suits, damages or demands.</p> <p>Right of Suit to Set aside Fraudulent Conveyance.</p> <p>5. To enable a creditor to maintain a suit to set aside a conveyance by his debtor as fraudulent, he must show an unsatisfied judgment or an attachment upon a cause of action existing at the time of the conveyance, or on a cause of action arising subsequent thereto, in which latter case the conveyance must be shown to have been made with the express intention of defrauding subsequent creditors.</p> <p>Presumption of Fraud in Voluntary Conveyance.</p> <p>6. Voluntary conveyances are constructively fraudulent and void as to existing creditors of the grantor, but are presumed valid as against subsequent creditors, unless impeached for actual fraud.</p> <p>Evidence of Cause of Action in a Suit to Set Aside Conveyance as Constructively Fraudulent.</p> <p>7. The existence of a cause of action by a creditor against his debtor at the time of a voluntary conveyance of property by the lattev must appear on the face of the record in the action in which the creditor recovers judgment, in order to enable such creditor to maintain a suit to set aside the conveyance as constructively fraudulent against existing creditors.</p> <p>Evidence of Fraudulent Intent by Grantor.</p> <p>8. Evidence of improper conduct on the part of the grantor in a voluntary conveyance to plaintiff, committed subsequent to such conveyance with the wife of defendant, is not sufficient to show that the conveyance was made for the purpose of hindering, delaying or defrauding defendant in the collection of any judgment which he might recover against the grantor on account of such conduct, in the absence of evidence that the grantor anticipated an action by defend, ant for alienation of his wife’s affections, or that he had any reason for putting his property out of his hands on that account.</p>

From Multhomah:- Arthur L. Frazer, Judge. A. J. Browning appeals from a conviction of larceny by embezzlement. The case was submitted on briefs under the proviso of Rule 16; 35 Or.'587, 600.

From Baker: Robert EakiN, Judge. Statement by Mr. Justice Moore. This is a suit by George Lassas against Lettie McCarty to foreclose a mortgage.

<p>Trial — Change of Ventte — Discretion.</p> <p>1. Where affidavits on an application for a change of venue on the ground of local prejudice are conflicting, and it appears that a jury was selected without unusual difficulty, it cannot be said that the court abused its discretion in denying the motion.</p> <p>Perjury — Evidence of Knowledge of Falsity of Testimony.</p> <p>2. Where, in an action for injuries alleged to have been sustained on a defective city sidewalk, accused testified that the plaintiff fell into a hole in the sidewalk at night, and fractured his kneecap, evidence that about the same time such injury was alleged to have occurred the plaintiff in such action and accused were in two other cities, and claimed that the same injury occurred on their defective streets, until a physician who was called stated that the inj ury was of long standing, when the plaintiff admitted the same in accused’s presence, was admissible, as showing accused’s knowledge of the falsity of his evidence.</p> <p>Perjury — Showing Knowledge of Falsity.</p> <p>3. In a prosecution for perjury, it is incumbent on the State to show, not only that the accused made the alleged false statements, but that he knew them to be false, or that he stated them under 'such circumstances that knowledge of the falsity would be imputed to him.</p> <p>Curing Error by Subsequent Admission.</p> <p>4. Error in the admission of testimony is cured by a subsequent admission of the truth of the same matter by the party against whom it was offered.</p> <p>Trial — Extent of Duty to Instruct as to the Law.</p> <p>5. Under Section 139, B. & C. Comp., requiring a trial j udge to state to the j ury all.matters of law that he may deem necessary for their information in reaching a verdict, a j udge need not, in the absence of a special request, instruct on collateral matters, as, with reference to evidence of character.</p> <p>Time eoe Requesting Instbuctions.</p> <p>6. Instructions particularly desired should be seasonably presented for the consideration of the court, and the limit of time for so doing as to matters then, known is the time of the retiring of the jury for deliberation.</p> <p>Tbial — Refusing Instbuctions Aleeady Coveeed.</p> <p>7. It is not error to decline to give a requested instruction, even if appropriate, where the same rule has already been announced in another paragraph.</p>

From Multnomah : Arthur L. Frazer, Judge. Statement by Mr. Justice Hailey. This is an appeal by 0. H. Thompson from a judgment-of conviction for violating what is commonly known as the-anti-scalping act, passed at the last session of -the legislature, and found on pages 422, 424 of the Session Laws of' 1905. The act provides in substance as follows: Section 1.

From Harney: George E. Davis. Judge. Statement by Mr. Chiee Justice BeaN. This is an action of trover by L. B. Springer against Thomas E. Jenkins and his brother for the alleged conversion by defendants of certain sheep belonging to the estate of Frank Martin, deceased.

<p>From Josephine: Hiero K. Hanna, Judge.</p> <p>Arthur Conklin was convicted of a criminal libel and sentenced to pay a fine of $250 and costs.</p>

From Benton : James W. Hamilton, Judge. Statement by Mr. J ustice Moore. This is an action by Kola Neis, as administrator of the partnership estate of Faber & Neis, against John Whitaker and Frank Whitaker, to recover damages for an alleged breach of an agreement.

<p>Costs —Time eor Filing Cost Bill — Time to Object.</p> <p>Under Section 568, B. & C. Comp., as amended by Laws 1903, pp. 209, 210, a ■party entitled to costs and disbursements lias until and including the first day •of the next regular term following the rendition of the judgment withir* which to file his statement, and the opposite party has five days from the date of such filing to file objections thereto, and not five days after the first day of the next regular term.</p>

Statement by Mr. Justice Moore. The defendant, B. F. Lane, was charged, by an information, with the crime of assault with intent to kill, alleged to have been committed in Lake County, January 22,1905, by shooting and wounding one Birt McKune, and having been tried therefor, he was convicted of the crime of assault with a deadly weapon and appeals from the judgment which followed.

From Multnomah: JOHN B. ClelaND, Judge. Statement by Mr. Chief Justice Bear. This is a suit by J. E. Dickey against G. W. Jackson on a written contract to obtain a judgment against the defendant Jackson for $10,400, and to foreclose a lien on a certificate of deposit for $20,000, issued by the defendants Ladd & Tiiton to Jackson, and by him pledged to the.plaintiff as security for the payment of the above-named amount.

From Multnomah : Arthur L. Frazer, Judge. Action by Oliver Taylor against S. Morton Cohn for refusing to allow plaintiff to occupy a box in defendant’s theatre. A demurrer to the complaint wras sustained, and plaintiff appeals.

<p>Arson — Evidence — Remoteness.</p> <p>1. In a prosecution for arson, in which the State claimed that defendant attempted to burn the building by saturating a part of it with kerosene, testimony that three or four days after the fire, witness picked up some of the earth, under the building, and that it smelled as if kerosene had been poured over it, was not objectionable as too remote.</p> <p>. Arson — Evidence of Ownership of Building.</p> <p>2. Where, in a prosecution for arson, the ownership of the building was laid in a person alleged to have been a subtenant under defendant, a receipt for rent, signed by defendant, was competent on the question of ownership.</p> <p>Instruction —Assuming Admitted Facts.</p> <p>3. Trial judges may mention in their instructions facts as to which there is no dispute, without invading the province of the jury.</p>

<p>Reforming Written Contracts for Mutual Mistare.</p> <p>1. A party seeking the reformation of a 'writing on the ground of mistake must show decisively what the mistake was and that it was mutual, as to which points he must overcome the stroug presumption that a written contract correctly expresses the intent of its signers.</p> <p>Evidence of Mutual Mistake.</p> <p>2. The evidence in this case does not clearly show that the writing in question incorrectly states the agreement of the parties, and a reformation must be denied.</p>

<p>From Multnomah : Alered F. Sears, Jr., Judge.</p> <p>Statement by.MR. Justice Moore.</p> <p>This is an action by Louis E. Lyon and Milbert F. Price, as partners doing business at Iowa City, Iowa, under the firm name of the Puritan Manufacturing Company, against Henry Westermire, to recover the agreed price of certain jewelry. The complaint alleged that on February 26,1904, the parties entered into a written contract, incorporating a copy thereof, whereby the plaintiffs stipulated to ship and deliver to the defendant certain articles of jewelry, enumerating the several varieties thereof and the various prices therefor, amounting to $880, payable in installments of $95 each in three, six, nine, and twelve months respectively, if evidenced by acceptances to be given by the defendant within 10 days from the delivery of the goods, otherwise the terms were net cash in 15 days, or 6 per cent discount if paid in cash in 10 days. The contract contained, inter alia, the following clauses:</p> <p>“Protection Against Loss. The Puritan Mfg. Co. will protect the purchaser of the within order by buying back for cash at original invoice prices, at the end of thirteen months from date of shipment, all goods remaining on merchant’s hands should not the sales in that time have equaled the amount of the original purchase, provided the conditions of this agreement are carried out by the merchant as herein set forth. However, it is agreed that no goods shall be returned except for exchange for other goods as heretofore provided until the end of thirteen months. * *</p> <p>“Quality of Our Goods. We desire to establish the quality of our goods, therefore guarantee them for periods ranging from five to twenty years, and to make this guarantee good will replace any article returned to us on account of defective workmanship or quality. Should any styles in this factory line prove unsalable, or should there be a greater demand for some classes mentioned than for others, we will, for one year, exchange any styles of our manufacture for any of the above goods returned to us. Under such an arrangement the merchant is abolutely assured of getting satisfactory goods, and hereby agrees not to claim failure of consideration or goods not such as ordered, until he has exhausted the terms of the warranty and exchauge, and, as can be plainty seen in the ‘Protection Against Los.s’ clause, we are taking all the chances, the merchant therefore agrees to properly display the factory line sent him for at lea'st 60 days and give every article a chance to sell before asking us to exchange.”</p> <p>Pursuant to the terms of such contract and immediately after its execution, the plaintiffs delivered the specified goods to the defendant, who failed and refused to pay any part of the stipulated purchase price thereof, whereby he became indebted to them in the sum of $380, for which judgment was demanded.</p> <p>The answer denied the material allegations of the complaint, and for a further defense averred that plaintiff’s agent made certain false and fraudulent representations to the defendant, respecting the quality and value of the jewelry which they offered for sale; that the defendant, relying upon such representations, ordered the specified goods, but upon their arrival he discovered that the jewelry consisted of inferior goods, cheap plated, gilded and valueless to the defendant, who thereupon returned them to the plaintiffs. As a separate and partial defense, and by way of counterclaim, it was further averred that the defendant paid $15 advance charges to return the goods and that plaintiffs had not paid any part of such sum for which judgment ivas demanded. The reply put in issue the allegations of new matter in the answer, whereupon the cause was tried, by stipulation of the parties, without the intervention of a jury, the court making findings of fact and of law in defendant’s favor as alleged in the answer, and, having rendered judgment thereon for the sum of $15 and the costs and disbursements of the action, the plaintiffs appeal.</p>

<p>From Baker: Samuel White, Judge.</p> <p>Roy H. Miller appeals from a conviction of obtaining money under false pretenses.</p>

<p>From Harney: George E. Davis, Judge.</p> <p>Statement by Mr. Justice Hailey.</p> <p>This is an equity suit by William D. Huffman against Fannie E. Smyth and her husband for the possession of' unsurveyed public land upon which the appellant claims to have settled with the intention of claiming the same under the homestead laws, and from which he claims to have been ousted by the respondents, and to enjoin respondents from interfering with the possession of such land. The complaint alleges the necessary qualifications of the appellant as a homesteader, and that he is the owner-of the improvements upon and entitled to the possession of certain public land in Harney County, Oregon, a portion of which improvements he purchased from a prior occupant of the land, and immediately entered into possession of the land and improvements-with the intention of filing upon the land when surveyed as a homestead under the laws of the United States; that he has ever since cultivated and farmed the land and made additional improvements by building corrals thereon, clearing, plowing, fencing and digging ditches thereon, and otherwise adding to and improving the land, which improvements, together with those purchased, are reasonably worth the sum of $3,000 ; that he continued to so occupy the land and im--provements until the spring of 1900, when he was convicted of a felony and sent to the penitentiary in this State for a term of 10 years, where he' was confined until 1905, when a full pardon was granted him ; that at the time he was confined in prison the respondent Fannie Smyth was his wife, but soon thereafter procured a decree of divorce from him, in which it was ordered that she should have as alimony possession of the improved portion of and improvements upon the land claimed by him, for the maintenance of herself and children, but alleges that all such portion of such decree affecting the land and its improvements and the right to possession thereof is void and of no effect,* and that while appellant was away from the land, under sentence in the penitentiary, she unlawfully, and without any right or authority, and without any right, title or interest in the premises, except such as was granted her by the decree in the divorce case above mentioned, and without the consent of the appellant, took possession of the land and improvements claimed by him, and that the other defendant, George M. Smyth, is her husband and claims as such some interest in the premises ; that prior to the commencement of this suit appellant demanded possession of the premises and all improvements and appurtenances belonging thereto of the respondents, but they refused and still refuse to deliver possession ; that respondent Fannie Smyth is a married woman, living with her husband and not compelled to support herself or family, and in this and other respects is not qualified to maintain a possessory right to the premises or enter the same under the homestead laws of the United States; that said land produces a large crop of hay annually, amounting to about 100 tons, worth the'sum of $600 ; that a large crop of hay is now growing thereon and will soon be ready to harvest, and the respondents threatened to and will harvest the same and use it to appellant’s irreparable damage; that respondents are not properly irrigating said hay nor caring for it in proper manner, and that, unless restrained from using said premises, appellant will be damaged in the sum of $1,000; and that, by reason of the wrongful possession of the respondents and by their not permitting him to take possession of said premises, he is unable to protect his homestead rights to said land and will be unable to hold the same under the laws of the United States, and that other parties are threatening to take possession of and hold the land under said laws, and will do so unless he is restored to the possession thereof, and will cause him to lose the same, and that he will be damaged in the sum of $10,000. He prays for am order directing the court to put him in possession, and to vacate the divorce decree so far as it applies to the land and improvements, and for an order restraining and enjoining the respondents from interfering with his possession of the premises mentioned. A demurrer was filed, alleging, first, want of jurisdiction of the subject-matter of the suit; and, second, that the complaint does not state facts sufficient to constitute a cause of suit. This demurrer was sustained, and a decree entered dismissing the complaint, from which decree this appeal was taken.</p> <p>I. A qualified settler on public land has a right thereto against every person except the government, and when such settlement is made with a view to obtaining title under the homestead laws, such right is valuable and is one which the courts will protect and enforce: 21 Stat. U. S. 141, c. 89, § 3 (6 Fed. Stat. Ann. 300, 301, U. S. Comp. St. 1902, p. 1393); Atherton v. Fowler, 96 U. S. 513; Long-necker’s Case, 30 Land Dec. Dep. Int. 611; Kitcherside v. Myers, 10 Or. 21; French v. Greswell, 13 Or. 418 (11 Pac. 62); Jackson v. Jackson, 17 Or. 110 (19 Pac. 847); Hind-man v. Rizor, 21 Or. 112 (27 Pac. 13); Allen v. Dunlap, 24 Or. 229 (33 Pac. 675); Bishop v. Baisley, 28 Or. 119 (41 Pac. 936).</p> <p>II. One who has taken the preliminary steps to secure a homestead, the first of which is possession, is entitled to-the aid of equity to retain or regain his possession against an intruder without title : Kitcherside v. Myers, 10 Or. 21; Alien v. Dunlap, 24 Or. 229 (33 Pac. 675); Bishop v. Bais-ley, 28 Or. 119 (41 Pac. 936); Muldrick v. Brown, 37 Or. 185 (61 Pac. 428); Pacific Livestock Go. v. Gentry, 38 Or. 275 (61 Pac. 422).</p> <p>III. The charge of abandonment will not lie where it appears that a residence was established and that claimant’s subsequent absence was by judicial compulsion. Bo-hall v. Dilla, 114 U. S. 47 (5 Sup. Ct. 782); Anderson v. Anderson, 5 Land Dec. Dep. Int. 6 ; Kane v. Devine, 7 Land Dec. Dep. Int. 532; Parsons v. Hughes, 8 Land. Dec. Dep. Int. 593; Arnold v. Cooley, 10 Land Dec. Dep. Int. 551;. Reedhead v. Hauenstine, 15 Land Dec. Dep. Int. 551.</p> <p>Which of two contestants has a better right to a tract of unsurveyed public land is a question exclusively for the land department of the federal government, and should not be considered by a State court: Moore v.Fields,! Or.317; Frink v. Thomas, 20 Or. 265 (12 L. R. A. 239, 25 Pac. 717).</p>

From Josephine: Hiero K. HaNNA, Judge. Statement by Mr. Justice Hailey. This is a proceeding by Benjamin Bull against P. P. Payne and another, as executors, to enforce a claim against the estate of James Lyttle, deceased.

From Josephine : Hiero K. HanNA, Judge. Statement by Mr. Justice Moore. Tliis is a suit by E. G. Wallace to enjoin the board of equalization, the county court, and the sheriff of Josephine County from allowing certain exemptions from taxation.

<p>From Douglas : Lawrence T. Harris, Judge.</p> <p>John C. Barnes, having been convicted of murder and sentenced to be hanged, prosecutes this appeal.'</p>

From Clackamas: Thomas A. McBride, Judge. Action to recover possession of real property, resulting ■in a judgment for plaintiff, from which defendant appeals.

From Harney : George E. Davis. Judge. Statement by Mr. Justioe Moore. This is an application to vacate a part of a decree. The plaintiff,. Wm. D. Huffman, commenced a suit in the ■circuit court for Harney County against the defendant, Fannie E. Huffman, for a dissolution of the marriage contract then existing between them and for the custody of their three sons.

From Douglas : James W. HamiltoN, Judge. Statement by Mr. Justice Moore. This is an action bjr F. W. Woolley against the Plain-dealer Publishing Co., a corporation, and W. C. Conner, to recover damages for the publication in a newspaper of an alleged libel.

From Grant: Robert Eaicin, Judge. Statement by Mr.. Justice Moore. This is a'suit by the Keystone Mining & Milling Co. and another against the Equity Copper &Gold Mining Co. to-enjoin an alleged trespass on real property.

From Multnomah : Arthur L. Frazer, Judge. This is a prosecution against Frank Bollam for a violation of the act of 1905 relating to the sale of railroad tickets. Defendant appeals from a sentence to pay a fine.

<p>From Malheur: George E. Davis, Judge.</p> <p>Suit by J. H. Seaweard against Pearl and Mamie Duncan, and from the decree entered the defendants appeal.</p>