Volume 48 — Oregon Reports

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Bean. This is an action by George O. Savage against Salem Mills Co. to recover for wheat delivered to the defendant company by plaintiff and his assignors. The complaint contains 11 causes of action, but as they are all substantially the same, it will be necessary to refer to the pleadings only as they affect the first.

From Douglas:. James W. Hamilton, Judge. Statement by Mr. Justice Moore. This is a suit by C. S. Jackson against A. W. Stearns and H. J. Wilson, to enjoin the dismissal of another suit and to set aside a deed to real property.

<p>Master and Servant — Duty to Furnish Appliances.</p> <p>1. Though a master is under an obligation to use due care in providing suitable and safe materials and appliances, he is not bound to provide the most improved appliances, and his duty is discharged when he has furnished appliances that are reasonably safe and suitable when properly used.</p> <p>Duty to Make Bules — Hanging Telephone Cables.</p> <p>2. Under some conditions it becomes the duty .of the master to make and enforce suitable rules for the government of his employees in doing certain work, but not when the work is simple and the use of the appliances obvious, as, in putting up telephone cables by wire ropes and hooks.</p> <p>Assumption op Known Bisk.</p> <p>3. An experienced lineman, familiar with the methods and appliances usually used in stringing wires and cables on poles, and particularly with the method used by a particular employer, who returns to work and continues with that employer without objection to the method in use, assumes the risk of that manner of doing the work.</p>

<p>Appeal — Subsequent Waiver or Termination — Evidence Dehors.</p> <p>1. Where the controversy has been settled after the entry of the judgment or decree appealed from, or the right of appeal has been in some manner waived, evidence outside the record is admissible to establish the facts as a basis for a motion to dismiss.</p> <p>Appeal — Dismissal Because op Newly Discovered Evidence.</p> <p>2. A motion to dismiss an appeal because of newly discovered evidence" material to the cause of the appellant should be overruled, the proper proceeding being by a suit to annul the order appealed from; and a claim of settlement during the trial in the lower court between the respondent and one jointly liable with the appellants, without the knowledge of appellants, and which was concealed from them, is in the nature of newly discovered evidence not justifying a dismissal of the appeal.</p> <p>Specific Performance — Laches—Hop Advances.</p> <p>3. Where a contract for the purchase of hops to be grown required the purchaser to make certain advances “about April 1,” and on March 28 he sent the money to the seller, but stopped payment of the checks on the 31st, claiming the payment to have been premature, yet expressing an intention to perform the contract, and on April 4 and on several occasions within the next six months offered to comply with his part of the contract, there was no laches or inequitable conduct barring a suit for specific performance.</p> <p>Evidence of Solvency.</p> <p>4. The evidence is satisfactory that the vendor in the contract in question was not so financially conditioned as that an action against him for damages would have been as effective as a suit for the specific performance of such contract.</p> <p>Specific Performance — Alternative Relief of Damages.</p> <p>5. Where the defendants in a suit for the specific performance of a contract of sale dispose of the property during the pendency of the suit, equity may retain jurisdiction and award the plaintiff damages in lieu of the article contracted to be delivered.</p> <p>Measure of Damages Awarded in Lieu of Specific Performance of Contract to Sell.</p> <p>6. Where damages are awarded in place of a decree for specific performance of a contract to sell, the proper amount is what plaintiff would have been entitled to in a law action for damages for breaching the contract.</p> <p>Sales — Measure of Damages for Breach.</p> <p>7. In action of damages by a purchaser against a seller for refusing to deliver the property contracted for, the measure of damages is the value of the property at the time of the refusal, less the agreed price to be paid, with interest, which is here an element of damage.</p>

<p>Ejectment — Right to Possession as a Defense.</p> <p>1. A plaintiff in an ejectment action being required to show right to possession as well as title, any matter tending to show that defendant is not wrongfully in possession is a defense, whether the right asserted be legal or equitable, as, for instance, that defendant is holding under an executory contract of sale as to which he is not in default.</p> <p>Vendor and Purchaser — Possession Under Contract — When Default Mat Be Claimed.</p> <p>2. In a case where time is not made a vital feature of the contract, a purchaser who has entered into possession of land under an agreement to buy is not in default, so as to forfeit his right to occupation, by a failure to make the final payment, when the vendor has not tendered a deed.</p>

<p>Pleading — Available Error — Admissions.</p> <p>1. Error cannot be predicated on rulings of a judge following admissions in the pleadings, as, for instance, in admitting as evidence a contract on which the plaintiff counts and which the defendant admits having executed.</p> <p>Principal and Surety — Premature Payments to Principal — Discharge op Surety — ■Waiver by Surety.</p> <p>2. Where a security reserved in a building contract for the benefit of the sureties on the builder’s bond is impaired by a premature payment to the contractor, the surety is discharged to the extent at least of the amount so paid unless the payment was made with the knowledge and consent of the surety; but this defense may be waived, and a stipulation -in the contract that payments made at times or in a manner other than as stipulated in the contract shall in no wise operate to release the sureties from liability, amounts to a waiver of that defense by both the principal and the sureties: Wehrung v. Denham, 42 Or. 386, distinguished.</p> <p>Principal and Surety — Effect on Rights of Sureties op Altering Terms of Building Contract.</p> <p>3. A contract for the construction of a building having provided that if the owner should, during the progress of the work, request in writing any alterations, the same should be made and should not .make void the agreement, but the value thereof should be added to or deducted from the contract price, 'and the bond having provided that any departure from the specifications, or alterations of the same should not make void the bond, the act of the contractor in making changes without requiring the requests therefor to be in writing, does not release either the contractor or his sureties. The provision requiring the requests for changes to be in writing was for the protection of the contractor, and he could waive it if he desired, thereby waiving it for the sureties also.</p> <p>Construction of Building Contract — Payments.</p> <p>4. A provision waiving the exact performance of the terms of a building contract as to payments applies to the payment for extras as well as for the original work.</p>

<p>From Lane: James W. Hamilton, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by W. M. Eoberts against tbe administrator and heirs of S. E. Templeton, deceased, to enforce the specific performance of an oral contract to convey an undivided share of real property. The complaint states that on June 28, 1902, S. E. Templeton was the owner and in the possession of an interest in the following quartz mining claims in Lane County, to wit, the undivided one fourth of the Excelsior, the Eoyal Ann, and the IXL, and also the undivided one fifth of the Tough Nut, in the Calapooia and Blue Eiver Mining District, which on that' day, in consideration of $100, evidenced by a cheek for that sum, he agreed to convey by a good and sufficient deed to plaintiff, who then, with his consent, took, and ever since has retained, the exclusive possession thereof, and expended a large sum of money in developing the claims; that Templeton failed to execute the deed, and died intestate August 8, 1902, leaving the defendants as his heirs, who, upon a request therefor, refused to convey such interests to plaintiff, who has no adequate remedy at law for the irreparable injury he has sustained. The answer denies the material allegations of the complaint, and for a further defense avers that at the time the pretended agreen^nt was consummated Templeton was seriously ill, and in con&quence thereof his mind was so weak as to render him incompetent to</p> <p>make a valid contract, which fact plaintiff then well knew, but, taking advantage thereof, induced him to enter into the simulated agreement; that on June 5, 1902, plaintiff, in pursuance of an agreement entered into with the owners of the mining claims, took possession thereof, and began to prospect them with a view of erecting a quartz mill thereon if he found gold in paying quantities; that the work he performed was done without compensation and in accordance with the terms of his agreement to devélop the mines; that the cheek delivered to Templeton has never been presented for payment, and is deposited with the clerk for plaintiff. The reply put in issue the allegations of new matter in the answer, and, a trial being had, the suit was dismissed, and plaintiff appeals.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is a suit by O. O. Jennings against Helen C. Jennings to cancel and set aside a deed from the plaintiff to the defendant for lot 6, block 16, King’s Second Addition to Portland. The original complaint was filed May 14, 1903, and alleged that plaintiff and defendant were husband and wife and had been since February, 1894; that in May, 1903, plaintiff was and for many years prior thereto had been a locomotive engineer and it .was necessary for the proper transactions of his business that he should live and reside at Roseburg; that for more than a year prior to May 7th, the domestic relations between him and the defendant had been greatly strained yet he had maintained a home in Portland, where his wife resided; that on the day named the defendant, for the purpose of cheating, wronging and defrauding him, promised and agreed that if he would deed to her the property in question which he owned at the time of his marriage, that she would remove from Portland to Roseburg and there live with him-as his wife; that she had no intention of keeping such promise, but purposed thereby to wrong and defraud him out of the property; that relying upon the good faith of the - defendant, he went to great expense in preparing a home in Roseburg, and deeded to her the property in dispute, but that immediately upon the delivery of the deed she absolutely refused to go to Roseburg and live with him and now asserts that she will never do so nor in any way keep or perform her promise and agreement, and refuses to redeed the property to the plaintiff; that in so inducing the plaintiff to deed her the property and in so' refusing to go to Roseburg, the consideration for the deed failed, and the defendant has committed a fraud against the rights.of the plaintiff.</p> <p>Service was had upon the defendant but no appearance was made by her nór further proceedings had in the suit until June 11, 1904, when plaintiff, by leave of court, filed what he denominated an amended complaint, in which it is alleged:</p> <p>“That the domestic relations between plaintiff and defendant had been greatly strained because of certain rumors which had come to plaintiff to the effect that the defendant, his wife, had been seen in the company of one J. S. Seed, a man of a notoriously bad moral reputation, yet, nevertheless, upon the said defendant protesting and asserting that her relations with said Seed were only those which any honorable woman and faithful wife might maintain, this plaintiff believing said protestation and assertions, and having confidence in the truth, chastity and loyalty of said defendant, had maintained and was maintaining a home in the said City of Portland; that on said 7th day of May, 1903, the .said defendant for the purpose of cheating, wronging and defrauding this plaintiff, and protesting her love, affection and devotion for him, and avowing her acts to have always been honorable, and especially her relations with the said Seed to have been ever proper and above reproach, promised the said plaintiff that if he would deed to her the above-described property she would immediately move to Eoseburg and there keep and maintain the home and family relation with the plaintiff; that the defendant when she made said promise did not have, nor did she ever at any time have, any intention of keeping the same, but at said time, notwithstanding her said protestations and avowals, cherished a guilty love and affection for the said Seed, and had theretofore, together with said Seed, been caught at Second and Ash streets coming out of a lodging house at a late hour of the night by the wife of the said Seed, and was at said time severely beaten by the said wife, of said Seed; intended and purposed, by her said false promises and false protestations of love for plaintiff and her false assertions of honor, to cheat, wrong and defraud the plaintiff into executing said deed; that the plaintiff relying solely upon the good faith of his said wife in making said promise and agreement, and relying upon the truth of her said protestations and avowals, went to a great expense in securing a home in the City of Eoseburg, Or., where the plaintiff and defendant and their son should reside, and depending solely and entirely upon the truth of said protestations and avowals and upon said promise to go to Eoseburg and there keep a home for the plaintiff, the plaintiff made, executed and delivered to the defendant his certain deed to said property above described, which deed the said defendant then and there received and immediately caused the same to be placed of record in the proper office of said county.</p> <p>(4) That immediately upon receiving said deed and placing the same upon record the defendant absolutely refused to go to said City of Eoseburg as she had so agreed, and said she would never go there, notwithstanding that upon that consideration and no other, except as herein stated, said deed was given, and thereupon plaintiff demanded that said deed be surrendered and given up to plaintiff, which demand was refused.</p> <p>(5) That at the time of making said protestations and avowals the said defendant was in love with the said Seed, and was lewdly associating with him, and has continued so to do in an open manner, and particularly on June 8, 1904, committed the crime of adultery with said Seed in the private lodgings of said Seed in Portland, Or.</p> <p>(6) That said defendant in so inducing said plaintiff to deed said property to her, and in so refusing to go to Eoseburg with plaintiff as aforesaid and in so refusing to deed said property back to plaintiff, committed a gross fraud against the rights of plaintiff.</p> <p>(7) That by reason of the premises there has been a total failure of consideration of said deed and the same fraudulently secured from plaintiff; that had the plaintiff known the things done and purposed by the said defendant as aforesaid he would never have executed said deed.</p> <p>Wherefore plaintiff prays for a decree of this court that the said defendant shall reeonvey to this plaintiff said property, and for a decree canceling and holding for naught said deed from plaintiff to defendant, and that in the event of the refusal of said defendant to so redeed said property, that the decree entered herein may stand as and for said deed, and for such other and further relief as seems just and equitable to the court, and for his costs and disbursements.”</p> <p>The defendant moved to strike from the amended complaint the averment that she had committed adultery with said Seed in June, 1904, for the reason that such act occurred after the filing of the original complaint, and to strike out other allegations because they were sham, frivolous and irrelevant. This motion was overruled and the defendant answered, denying the material averments of the amended complaint and alleging affirmatively that she received the deed in good faith, intending to keep and perform her promise to go to Eoseburg and live with the plaintiff as his wife, but that he refused to procure transportation for herself and son. The testimony was taken, and a decree rendered in favor of plaintiff, from which the defendant appeals.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an interpleader suit by Wells, Fargo & Co. against James E. Page and others. On March 14, 1902, Benson and Hyde and W. H. Gilbert entered into a contract in writing for the sale by the former and the purchase by the latter of 8,280 acres of land in the State of Washington. Benson and Hyde had no title at the time the contract was made, but the land had been selected by them, or for their benefit, under the provisions of the act of Congress of June 4, 1897, permitting the surrender of lands within forest reserves and the selection of other lands in lieu thereof. Hnder the rules and regulations of the Interior Department, no title vested in the selectors of such lands until the selections were approved by the Commissioner of the General Land Office. None of the selections which Benson and Hyde agreed to sell to Gilbert had been so approved at the time the contract was made. This fact was recited in the agreement, and it was stipulated that, whenever the Commissioner should approve any of the selections, the title of the selector should be considered good and sufficient, and a deed from him, conveying all his interest and such as he might thereafter acquire, should be deemed a good and sufficient deed. It was further agreed that Gilbert should deposit with Wells, Fargo & Co.’s Bank in Portland $10,000, which should be retained and held by the bank as a forfeit to Benson and Hyde in case of the failure of Gilbert to comply with the terms of his agreement, and from which the last payments on account of the purchase price of the land should he made, if the terms of the contract were kept and performed by Benson and Hyde; and that, if default should he made by Gilbert in the performance on Ms part of any of the conditions of the contract, the agreement of Benson and Hyde to sell and his- right to purchase any of the lands for which payment had not been actually made, should cease and determine, and the forfeit money should thereupon become the property of Benson and Hyde, and the bank should pay it over to them. It was also agreed that in addition to the forfeit money Gilbert should at all times have on deposit with the bank $10,000 with which to make the payments as they became due, and that when any of the selections should be approved, and Benson and Hyde should deliver to the bank* a deed or deeds, in a certain form as agreed upon, conveying to Gilbert all the title, present and prospective, of the selectors, accompanied by evidence of the approval of the selections, the bank should pay out of the money deposited with it, exclusive of the forfeit money, to Benson and Hyde the purchase price. It was further stipulated that, if all the selections were not approved within one year from the date of the contract, it should be optional with Gilbert, either to cancel the contract or continue the same as to unapproved selections. Upon maldng the contract, Gilbert deposited with the bank the forfeit money as required, and also money with which to pay the purchase price of the lands as the deeds therefor should be delivered to it by Benson and Hyde; and thereafter, and prior to January, 1903, there were approved by</p> <p>the Commissioner of the General Land Office selections covering 4,160 acres, which were conveyed to Gilbert and paid for by the bank. In September, 1902, the timber on the land mentioned in the contract'was destroyed or injured by fire, and in January following Gilbert notified Benson and-Hyde that he would decline to receive or pay for any more of the land, and demanded from the bank the return of the forfeit money. Benson and Hyde, without procuring or attempting to procure the approval of any more selections, or endeavoring to place themselves in a position to comply with the contract on their part, also demanded the forfeit money, and the bank, being in doubt, filed a bill in equity for a decree requiring Gilbert and Benson and Hyde and the defendant Page to interplead, paid the money into court, and was discharged from any further liability in the premises. Page’s claim upon the forfeit money was settled, but Gilbert and Benson and Hyde filed appropriate pleadings setting up their respective claims, and upon a trial the money was decreed to be paid over to Gilbert, and Benson and Hyde appeal.</p>

<p>Writ of Review — Form of Petition — Attaching Exhibits.</p> <p>1. In view of the provision of Section 596, B. & C. Comp., that a petition for a. writ of review shall describe with convenient certainty the determination sought to be reviewed, the petition should state such matters as are necessary, and copies of the record objected to should not be attached as exhibits — all that matter, and the expense of providing it, being provided for by Sections 598 and 599 of the Code.</p> <p>Writ of Review — Pleading—Demurrer—Motion to Quash.</p> <p>2. Under the practice in Oregon concerning writs of review as defined by Section 603, B. & C. C. Comp., requiring the court issuing the writ to affirm, reverse, modify or annul the decision reviewed, or to direct the inferior tribunal to proceed In a designated manner, the only pleading on the part of the defendants is a return to the writ, and it is not proper practice to file a demurrer to the petition or a motion to quash or dismiss. All objections and defenses should be presented in the form of a return to the writ, and the allegations of the petition are to be deemed true if the answer raises questions that would ordinarily be presented by a motion or demurrer.</p> <p>Municipal Corporations — Right to Resell Lots Once Sold Under Void Proceeding — Caveat Emptor.</p> <p>3. Section 400 of the Portland Charter of 1903, which authorizes the city to reassess property for public improvements in certain specified instances, does not authorize the city to sell under such -reassessment where a sale was made under the prior assessment, even though such sale was entirely void, in the absence of a provision in the charter for returning the purchase price paid at the first sale.</p> <p>Idem.</p> <p>4. That part of Section 400 of the Portland Charter of 1903, providing that where a sale has been declared void and the property shall be resold under a reassessment for public improvements, the entire proceeds shall be paid to the purchaser at the prior sale, is unconstitutional, as providing for a seizure of one man’s property to give to another, in violation of Const. Or. Art. I, § 18, which impliedly prohibits the taking of private property for private use at any price.</p> <p>Rights op Contractors Purchasing Lots Sold for Public Improvements — Caveat Emptor.</p> <p>5. Contractors for public improvements who purchase property sold for unpaid assessments on their own work have no further rights than other persons purchasing under similar circumstances, and buy at their peril.</p>

From Coos: James W. Hamilton and Lawrence T. Harris, Judges. Statement by Mr. Justice Moore. These two cases were argued and submitted together.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action by B. D. Strauhal, as administrator of the estate of Otto Pannier, deceased, against the Oregon Bailroad & Navigation Co., the Oregon Bound Lumber Co., and the Portland & Asiatic Steamship Co., Jointly, to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendants. The complaint, after alleging the death of Pannier, the appointment of plaintiff as his administrator, and the incorporation of the several defendants, avers that between the 24th and 28th days of December, 1904, the defendants were in the sole and exclusive use and possession of the river barge Monarch, which they were using in coaling river crafts of the Oregon Bailroad & Navigation Co., and the steamship Arabia, belonging to the steamship company; that they carelessly and negligently loaded upon the barge a large amount of coal in excess of what it could safely carry in its then condition, and caused and permitted such coal to be loaded thereon in an improper manner so as to strain and weaken the barge, and render it unsafe; that while it was in such unsafe condition the defendants caused it to be taken to the Arabia and proceeded in a careless and negligent manner to unload and remove the coal therefrom, by reason of which the barge filled with water, capsized and the plaintiff’s intestate, who was working thereon, drowned; that the barge was old, decayed and weak, and not sound nor safe for the use to which it was being put; that after it had been taken alongside the Arabia, the deceased was employed by the defendants to assist in pumping the water from it and was so engaged at the time of the accident; that he was not accustomed to working on barges and had no knowledge or intimation that the barge in question was unseaworthy or had been improperly loaded or was then being negligently or unskillfully unloaded, or that there was any particular danger in his employment; that the place where he was put to work was one Of extreme danger and known to be such to the defendants, notwithstanding which they neglected to inform him thereof.</p> <p>The defendants answered separately. The Portland & Asiatic Steamship Co. alleged that at the times mentioned in the complaint it leased of the defendant, the Oregon Pound Lumber Co., for the purpose of transporting coal to the steamship Arabia, then lying in the harbor, the barge Monarch, in charge of a barge master whose duty it was to superintend the loading and unloading thereof, to operate the pumps and to keep the barge free from water; that .the barge was properly loaded and towed alongside the Arabia, but being in an unseaworthy condition, was taking water rapidly; and that the lumber company employed the deceased to operate the hand pump thereon, and .while so engaged it capsized without any fault or negligence of the answering defendant. The Oregon Pound Lumber Co. denied the allegations of the complaint and pleaded that at the time it rented the barge to the defendants, the Oregon Pailroad & Navigation Co. and the Portland & Asiatic Steamship Co., it was in good seaworthy condition; that its codefendants had the sole and exclusive charge and management thereof and of its employee in charge, and so improperly and negligently loaded and operated the barge that it was greatly strained and weakened and caused to take water faster than it could be removed by the pumps; that the deceased was employed by it to pump water from the barge with knowledge of its weakened condition and that it was liable to capsize at any time and therefore assumed the risk incident to such employment. The Oregon Pailroad & Navigation Co. denied the material allegations of the complaint and for an affirmative defense pleaded substantially the same facts as are set up by its codefendant, tbe steamship company. Upon the issues thus tendered, the cause went to trial before the court and a jury.</p> <p>The plaintiff gave testimony tending to show that oh December 24, 1904, Capt. Conway, superintendent of water lines of the Oregon Railroad & Navigation Co. and the Portland & Asiatic Steamship Co., chartered of the defendant the Oregon Round Lumber Co. the barge in question for use in coaling the steamship Arabia then in port and belonging to the steamship company; that the barge was what is known as a “model” barge, and was equipped with a steam siphon and hand pump for use in removing the water; that at the time the barge was hired Conway was informed that he would have to be careful in loading and unloading it or it would open up and take water, and at his request the lumber company sent a man along as barge master, whose duty it was to report to his employer if the barge was not handled properly and to see that it was safely moored and kept free from water. The barge was taken by the lessee to the Albina Dock, and from 120 to 130 tons of coal loaded on the forward deck by the employees of the steamship company, on the 24th. The 25,th and 26th being holidays, no work was done on either of those days, but on the morning of the 27th the loading was resumed and completed about noon of the 28th. During the morning of the 28th the barge master observed that it was taking water faster than it could be pumped out and about 11 o’clock attempted to reach the office of the lumber company by telephone to advise its officers of the condition of the barge, but was unable to do so. About noon on the 28th, and while the barge master was at his lunch, the barge was, by direction of the steamship company, towed from the coal bunkers to the Arabia and made fast. At this time mere was a large quantity of water in the hold and it was taking water freely. When the barge master returned from his lunch he noticed a considerable list to port and that the barge was in a dangerous condition, and thereupon telephoned as soon as he could to the office of the lumber company, and O’Reilly, the superintendent, responded to the call and reached the barge between 3 and 4 o’clock in the afternoon. At that time it was in a critical condition. It had several feet of water in the hold and was leaking badly and the stevedores had taken from 25 to 30 tons of coal from one corner and as a consequence it had listed so that the water was washing the deck on the offshore side and midships. O’Reilly objected to the manner in which the barge was being unloaded, and in consequence thereof the stevedores commenced taking coal from the opposite side and the load was so shifted as to put the barge on an even keel, but the water was gaining on the pumps and O’Reilly telephoned for a steamer to assist in pumping. About this time, and while the barge was in this condition, he noticed the deceased standing on the wharf and asked him if he wanted to work, and being answered in the affirmative, O’Reilly directed him to report to the barge master, who put him to work at the hand pump on the forward deck. He worked there for about 45 minutes when the barge suddenly turned over,- throwing him into the water and drowning him.</p> <p>The deceased, so far as the evidence shows, had no experience in working on water crafts and was not informed or advised b}'- O’Reilly, who hired him,- or the barge master, who put him to work, or any one else, that the barge was in danger of turning over, or that there was any unusual risk or hazard in working thereon. The danger seems, however, to have been apprehended by the stevedores who were unloading and was several times mentioned by them in the hearing of the deceased, but it does not appear that he understood the purport of their remarks or was conscious of the danger. At the close of the plaintiff’s testimony, he was permitted to amend his complaint so as to conform to the evidence, by changing the allegation that the deceased was employed by the defendants jointly to an averment of his employment by the defendant, the Oregon Round Lumber Co., alone. The defendants thereupon separately moved for nonsuits, which motions were sustained by the court, and the plaintiff appeals.</p>

From Marion: William Galloway, Judge. Per Curiam statement. This is a suit in the name of the State, on the relation of the Attorney General, against the Secretary of State, for the purpose, in effect, of striking from the ballot title of a proposed amendment to the local option law, to be voted on at the general election to be held on June 4, 1906, the following words: “Giving anti-prohibitionists and prohibitionists equal privileges” —and enjoining said officer from…

From Lane: James W. Hamilton, Judge. Statement by Mr. Justice Moore. This cause having been reargued, the opinion heretofore announced, which has not been published, will be changed to accord with the view now entertained. This is a suit by Frank C. Sharkey, Louis Zimmerman, Fred E. Sharkey, and N. B. Standish, -against C. F. Candiani, Caesar Marco and J. J. Tyler, to determine the right pf possession of certain mineral land.

<p>From Sherman: William L. Bradshaw, Judge.</p> <p>Suit by Maggie Higinbotham and husband against Henry and Bertha Frock, resulting in a decree for defendants, from which plaintiffs appeal.</p>

<p>From Yamhill: William Galloway, Judge.</p> <p>Mandamus by the State, ex rel., against B. F. Rhodes, county judge, and others. From an order dismissing the writ the. relators appeal. The ease was submitted on briefs under the proviso of Rule 16: 35 Or. 587, 600.</p>

<p>Appeal from Wallowa County.</p> <p>Statement by Mr. Justice Hailey.</p> <p>O. F. Paxton recovered judgment against L. D. Lively, wbo appealed to this court and filed his transcript, on appeal herein, whereupon plaintiff filed a motion to dismiss the appeal for the reason that the defendant had failed to file a proper undertaking on appeal, in that the surety thereon was not qualified as by law required. The record discloses that the plaintiff excepted in the lower court to the sufficiency of the surety on the undertaking and required him to justify before the county clerk, where he testified that he then' was, and for several months had been, a United States commissioner appointed by the United States District Court for the District of Oregon, and made no other showings as to his qualifications as surety.</p>

From Coos: Lawrence T. Harris, Judge, Statement by Mr. Chiee Justice Bean. This is an action by Yietor Miller against the Beaver Hill Coal Co. to recover damages for the breach of an alleged contract by which the defendant agreed to provide the plaintiff with necessary medical and surgical attention, at a hospital maintained by it, in case of his injury while in its employ.

<p>Watehs — Point op Appropriation in a Ditch.</p> <p>1. A valid appropriation of -water may be made by diverting it from an artificial waterway if the owner thereof consents; but a seizure of water from another’s ditch cannot be the foundation of an appropriation.</p> <p>Evidence op Relinquishment op Water Right.</p> <p>2. The evidence shows that the defendant did not intend to relinquish an appropriation made by his predecessor in interest.</p> <p>Evidence op Adverse Use op Water.</p> <p>3. The evidence does not show that the defendant’s water rights were lost by adverse use by another, as such use was not exclusive of plaintiff’s use.</p> <p>Adverse Use — Kind op Evidence Required.</p> <p>4. The evidence of adverse use required to deprive an appropriator of his vested right to the use of water must be clear and convincing.</p>

<p>Fraudulent Conveyances — Participation op Grantee.</p> <p>1. In suits to prevent the consummation of a fraud on plaintiff by transferring property in which he is interested, it must appear that the grantee participated in the fraudulent intent.</p> <p>Fraudulent Conveyances — Relatives—Burden op Proof.</p> <p>2. Where conveyances are made to near relatives, the effect of which is to prevent creditors from satisfying their claims, the burden of proving good faith is on the grantees.</p> <p>Evidence Considered.</p> <p>3. The evidence shows that the grantees in the present case were not parties to any fraudulent intent that the grantor may have had.</p> <p>Parent and Child — Emancipation—Right to Earnings.</p> <p>4. The earnings of a minor child who has been allowed by his parents to act in business matters independent of their control are not liable to the claims of creditors of the parents.</p> <p>Lease — Sufficiency of Consideration.</p> <p>5. A promise not to claim further rent under the terms of a lease is a sufficient consideration for a release of all rights under it, and a promise to pay rent is an adequate consideration for the execution of a lease.</p> <p>Breach of Contract — Measure of Damages.</p> <p>6. The measure of damages for the breach of a contract to sell is the difference between the purchase price and the market price on the date of delivery.</p> <p>Costs on Appeal in Equity Cases.</p> <p>7. Costs and disbursements on appeal in equity eases are assessed as the discretion of the appellate court may suggest.</p>

<p>From Josephine: Hiero K. Hanna, Judge.</p> <p>Statement by Mr. Chiee Justice Bean.</p> <p>This is an action by H. W. Jackson against G. W. Baker to recover $1,000 paid by the plaintiff and his assignor to the defendant in consideration of an agreement by the latter to sell and convey land entered by him as a homestead upon obtaining title thereto. The complaint alleges that in September, 1903, the plaintiff and defendant, and one Hamilton were the owners as tenants in common of certain mining property, and that the defendant was in possession of 160 acres of adjoining land, which he had entered under the homestead laws; that at the date mentioned the parties referred to contracted and agreed with one Draper to sell and convey to him the mine and homestead for $25,000, and that it was agreed between the plaintiff and Hamilton and the defendant that if the entire sum should be paid for the property the former would pay to the latter out of their part of the proceeds $1,000 in consideration of his transferring to Draper the “legal title” to the land covered by the homestead, but that if he failed, or neglected to make such transfer .he would return the money so paid; that thereafter Draper paid the $25,000 for the property, and plaintiff and Hamilton paid the defendant $1,000; that defendant never obtained title to the homestead because his entry was subsequently canceled for the reason that the land was mineral in character, and not subject to entry under the homestead laws, and defendant did not and cannot transfer the legal title thereto to Draper; that plaintiff has succeeded to all the rights of Hamilton in and to the money paid by them to the defendant and prior to the commencement of this action defendant promised and agreed to repay the same to him but has failed and neglected to do so.</p> <p>A demurrer to the complaint because it did not state facts sufficient to constitute a cause of action was overruled, and the defendant answered denying the material allegations, and affirmatively alleging that he only agreed to surrender and relinquish to Draper his homestead entry, and that the consideration for the $1,000 paid him by Hamilton was such surrender. and certain assessment and development work which he had done on the raining property. A reply put in issue the new matter pleaded in the answer, and a trial was had before the court, and' a jury. At the close of plaintiff’s case the defendant moved the court to direct a verdict in his favor, but this motion was overruled, and the cause submitted to the jury who returned a verdict in favor of the plaintiff. From the judgment entered</p> <p>thereon this appeal is taken.</p>

From Marion: George H. Burnett. Statement by Mr. Chief Justice Bean. This is an action by Iinssell Catlin and another against S. W. Jones, to recover damages for the breach of a contract to sel] and deliver hops.

From Douglas: Jambs W. Hamilton and Lawrence T. Harris, Judges. Statement by Mu. Chief Justice Bean. The defendants Tom Leorges and Peter Demás, together with James Pilantes and Anton Mizis and three others, whose names were to the grand jury unknown, were indicted for riot. They were all Greek laborers, engaged with some 75 or 80 of their countrymen in repairing the track of the Southern Pacific Co. at or near Glenbrook, a station about 30 miles south of Rose-burg.

From Multnomah: Arthur. L. Frazer, Judge. Suit by Multnomah County against W. F. White and another, resulting in a decree from which plaintiff appeals. A motion to dismiss the appeal was overruled, and a decision rendered on the merits after a rehearing.

From Douglas: William Galloway, Judge. Statement by Mr. Chief Justice Bean. This is an action by Leonard Kabat against Maurice Moore for deceit.

<p>Defective Pleading — Aider by Verdict.</p> <p>A pleading not fatally defective will be aided by a verdict, so that it will be considered sufficient on appeal.</p> <p>For instance: A complaint showing that between certain dates plaintiff furnished to defendant feed and care for his horses of a stated value, that payment had been demanded and refused, and that the sum stated was due, which is defective in that it does not show either a request by defendant or a promise to pay, is aided by a verdict for plaintiff, on an answer denying the allegations of the complaint, and will be sufficient on appeal.</p>

<p>Specific Performance of Contract to Lease — Statute op Frauds— Act Constituting Part Performance.</p> <p>The part performance of a contract that will avoid the effect of the statute of limitations must be an act done in pursuance of the contract and referable to it solely as an actuating cause; a collateral act done in reliance on the contract, however prejudicial, is not enough.</p> <p>This case illustrates the rule: A tenant who had secured an option on another store in anticipation of having his tenancy terminated by the expiration of his lease, and afterward orally agreed with the landlord for a continuation of the former lease for three years, cannot claim that his forfeiture of the option and his continued occupation of the old store were part performance of the oral agreement, even though he is not able to obtain any location when the landlord repudiates such agreement, since neither act is in execution of the oral lease solely, the continued occupation being referable to the old lease and the forfeiting of the option being wholly collateral.</p>

From Multnomah: Melvin C. George,. Judge. Statement by Mr. Justice Moore. This is an action by Aimee Austin against Oscar Vanderbilt to recover damages for an alleged conversion of personal property.

From Marion: William Galloway, Judge. Statement by Mr. Justice Moore. This is a suit by George D. Sprague and others against Sophronia Jessup to enforce the specific performance of an alleged oral agreement to convey real property.

From Yamhill: William Galloway, Judge. Statement by Mr. Justice Moore. This suit was instituted January 12, 1905, by Mary B. Burbank against Charles B. Fisher, to remove a cloud from the title to real properly.

<p>From Malheur: George E. Davis, Judge.</p> <p>Suit to enforce an alleged mechanic’s lien by T. A. Barton against W. W. Bose and wife, resulting in a decree for defend- • ants. Hence this appeal.</p> <p>For appellant there was a brief and an oral argument by Mr. George Wesley Hayes.</p> <p>For respondents there was a brief over the name of McCulloch & Callahan, with an oral argument by Mr. J. A. Callahan.</p>

<p>Question First Raised on Appeal.</p> <p>Subject to certain statutory exceptions, questions not presented to and ruled upon by the trial court cannot be considered by the supreme court.</p> <p>For instance: A referee having returned a part of the testimony in a case, the action of the parties in submitting the cause without any proceeding to secure the balance of the testimony precludes the supreme court from considering the conduct of the referee.</p>

<p>From Union: Robert Eakin, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by the Goodnough Mercantile & Stock Co. against G. W. Buck, Cecil Galloway, the trustee in bankruptcy of his estate, and the First Bank of Elgin, to foreclose, an equitable lien on personal property. It appears that on September 1, 1902, the defendant G. W. Buck was the owner of a sawmill, and, having secured the timber on certain premises belonging to others, it is alleged he verbally agreed to give to the plaintiff, a private corporation, a lien upon such timber and upon the logs and lumber cut and manufactured therefrom as security for money and supplies to be furnished by it to enable him to operate his mill. He also entered into a contract with the Elgin Lumber Co. January 33, 1903, for the sale of the lumber which he might manufacture that year, the prices agreed upon therefor to be paid monthly as the lumber was delivered. He executed to plaintiff, January 31, 1903, and February 38th of that year, written instruments purporting to sell to it 333,100 feet and 145,600 feet of logs, respectively, at $3.50 per thousand, each memorandum stating that it was given as collateral security; but these instruments were not acknowledged or certified, so as to be entitled to record. An accounting was had between plaintiff and Buck April 16, 1903, and there was found to be due to it $3,850, for which sum he executed his promissory note payable on demand, and at the same time gave it a written order on the Elgin Lumber Co. to pay plaintiff all money due on the sale of lumber, which order was accepted, though no lumber had been delivered. Buck assigned to plaintiff, May 3, 1903, all his interest in the timber which he had secured. The defendant the First Bank of Elgin, a corporation, commenced an action against Buck in the Circuit Court of the State of Oregon for Hnion County, May 7, 1903, to recover the sum of $3,084.03, and, having sued out a writ of attachment, the sheriff of that county, in pursuance thereof, seized all the logs and lumber owned by Buck, and also took possession of his mill under the terms of a chattel mortgage thereon.</p> <p>The creditors of Buck having filed a petition in the Hnited States District Court for the District of Oregon, such proceedings were had therein that he was adjudged a bankrupt, and the defendant Cecil Galloway was appointed and duly qualified as trustee of the bankrupts estate. The plaintiff herein presented to the referee in bankruptcy its verified claim, evidenced by the promissory note, and an account for money and supplies furnished to Buck after the execution of such note, asserting that it held a lien on the timber, logs and lumber as security therefor, and stating that it was entitled to the immediate possession of such property to dispose of it in payment of its demand. This suit was thereafter instituted in the Circuit Court of the State of Oregon for Union County, the complaint stating the facts as hereinbefore detailed in respect to the right of an equitable lien upon such property, and averring that Galloway, as trustee, was claiming the right to take possession of the property to sell it, and, unless restrained, he would do so, thereby depriving plaintiff of its lien. An injunction was thereupon issued out of the state court restraining the trustee in bankruptcy from disposing of the property. The defendants Galloway and the First Bank of Elgin separately demurred to the complaint, on the ground, inter alia, that the court did not have jurisdiction of the subject-matter of the suit; but, the demurrers having been overruled, these defendants separately answered, denying ' the material allegations of the complaint, and averring that such bank by its attachment secured a lien upon the logs and lumber so seized, which they severally prayed might be decreed to be prior to all other incumbrances. The allegations of new matter in the answers having been put in issue by the replies, the cause was referred, and from the testimony taken the court made findings of fact and of law, establishing plaintiff’s equitable lien, and decreeing a foreclosure thereof for the sum due from Buck; and Galloway and the First Bank of Elgin appeal.</p>

<p>Constitutional Law — Police Power — Right to_ Labor.</p> <p>1. The property right to labor or employ labor on terms satisfactory to the contracting parties, guaranteed by the fourteenth amendment to the federal constitution, is subject to the limitation of the right of the state, under its police power, to reasonably regulate callings that affect the public health and welfare.</p> <p>Constitutional Law — Regulating Hours'op Labor by Females.*</p> <p>2. A statute forbidding employers to require women to work more than ten hours during a day in any factory, laundry or mechanical establishment, such as Laws 1903, pp. 148, 149, § 1, does not violate the Fourteenth Amendment to the Constitution of the United States, forbidding the taking of life, liberty or property without due process of law, nor Const. Or. Art. I, § 1, declaring that all men have equal rights, nor Section 20, forbidding the granting of special privileges to particular persons, as such law is not an unreasonable or extravagant exercise of the police power’over a subject deemed of vital interest to the public welfare, and does not discriminate between persons engaged in the same kind of business.</p>

<p>From Lake: Henry L. Benson, Judge.</p> <p>Statement by Mr. Justice Hailey.</p> <p>This is an action by the Warner Valley Stock Co., a corporation, against J. L. Morrow, to recover the possession of real property in Lake County, Oregon, described as the N. W. J of section 35 in township 39 S., range 24 E. of the Willamette Meridian. The appeal is from a judgment in favor of the plaintiff. The complaint is in the usual form. The answer “denies each and every allegation of the complaint except as hereinafter admitted and averred,” and then sets up as affirmative defenses (1) the statute of limitations, and (2) adverse possession, neither of which was urged at the hearing or in the brief; (3) legal title of the lands in the Hnited States; and (4) defendant’s claim thereto under a timber culture filing by one John W. Morrow, substantially as follows: That on March 12, 1888, John W. Morrow, being qualified to acquire lands from the Hnited States under the homestead and preeruption laws, settled upon the lands described in the complaint with intent to acquire title thereto as a timber culture claim under the laws of the United States, and on March 15, 1889, duly made and filed his timber culture application for said lands in the United States land office at Lakeview, Oregon, and paid all fees and costs of such entry, and received his receipt and certificate of entry from the register and receiver; and that such entry was made in good faith and for the sole purpose of acquiring said land as a timber culture claim; and that thenceforth he continuously resided upon and improved said land and offered to make final proof thereon up to the time of his death on the-day of-, 190 — ; that since the death of John W. Morrow, the defendant has been appointed the-administrator of his estate and entered into possession of said land and ever since has been, and now is, such administrator, and in possession of said property as administrator, and not otherwise; “that from and since the date of making said entry defendant has been in the actual and exclusive possession and occupation of said land,” and that said tract of land was on March 13, 1860, and on March 13, 1888, dry land suitable for agricultural purposes, and never was swamp nor overflowed land nor mineral land, nor sold or disposed of by the United States in any way for any purpose whatever, but was public land belonging to the United States, subject to said timber culture entry of John W. Morrow as aforesaid; and that the defendant was at the commencement of this action and still is the owner of a legal estate in said tract of land and in the actual possession and entitled to the possession of the same. A reply was filed to this answer, denying all of its material allegations, except possession on the part of the defendant and the making of the timber culture entry by John W. Morrow, and alleging the cancellation of such timber culture entry by the Secretary of the Interior on March 16, 1903.</p> <p>At the trial the plaintiff offered in evidence a certified copy of the patent from the United States to the State of Oregon for the lands in question and other lands amounting to about 3,000 acres, dated October 6, 1903, properly executed and duly recorded in the United States General Land Office and also in the office of the County Clerk of Lake County, Oregon, which patent recites that “the several tracts or parcels of land hereinafter described have been selected as 'Swamp and Overflowed Lands’ inuring to the said state under the act aforesaid.” “And for which the Governor of the State of Oregon has requested a patent issued to the said State as required in the aforesaid acts.” The defendant objected to ’the introduction of this patent “for the reason that it was incompetent and immaterial and that it does not show on its face that it was ever received by the State of Oregon or by any officer of the State of Oregon authorized to receive the same; that it is not recorded in any of the state land records, and does not purport to be and there is nothing to show that it has ever been received or accepted in any manner by the State of Oregon”; and also offered to show that the patent had never been received or accepted by the State of Oregon, which objection and offer were overruled. The plaintiff then offered in evidence a certified copy of the patent from the State of Oregon to the plaintiff covering the lands in controversy, dated June 23, 1899, which patent included about 5,000 acres of other land. Defendant objected to the introduction of this for two reasons: (1) It conveyed more than 320 acres of land to one person, whereas.the state law limits the sale of state lands to any one person to 320 acres; and (2) at the time of the execution of the deed the State of Oregon had no title. The objection was overruled. Plaintiff then rested, and • defendant moved the court to instruct the jury to return a verdict for the defendant on the ground that (1) there was no evidence showing defendant in possession of the land at the commencement of the suit; (2) there was no evidence of title having been proven. This motion was overruled and a motion for a nonsuit was also overruled.</p> <p>The defendant then offered in evidence certified copies of certain powers of attorney and deeds and applications to purchase swamp lands, and records of the proceedings of the State Land Board covering the lands in question and other lands prior to the issuance of the patent by the State to the plaintiff, all which were excluded. Defendant then offered testimony tending to show that the Governor of the State had on July 27, 1903, and at subsequent dates, refused to accept or receive any patent or approve the list of swamp lands which included the lands in controversy, and had protested against the issuance of any patent to the State of Oregon for such lands, which was also excluded. Defendant also offered evidence to prove that the land in controversy was in 1884 dry land and neither swamp nor overflowed within the act of Congress of 1860 granting such lands to the State of Oregon, which was also excluded. After the defendant rested, the plaintiff moved the court to instruct the jury to bring in a verdict in favor of the plaintiff, which motion was allowed, and a verdict found in favor of the plaintiff, and judgment entered, from which this appeal was taken.</p>

From Union: Robert Eakin, Judge. Statement by Mr.- Justice Moore. This is a claim for damages which it is asserted the owner of. certain real property will sustain if a public road is established across his premises.

From Baker: Samuel White, Judge. Statement by Mr. Chiee Justice Bean. This is an action by R. W. Frame, doing business as the Frame Forwarding Co., against Ben Grunbaum and Lee Hirschland, doing business as the Oregon Liquor & Cigar Co., to recover damages for the conversion of personal property. The plaintiff is engaged in the warehouse and forwarding business at Huntington, a station on the Oregon Railroad & Navigation Co.’s railroad.

From Baker: Samuel White, Judge. Statement by Mr. Justice Moore. This is a suit by A. P. Brown against the Gold Coin Mining Company, a private corporation, to enjoin the pollution of the water of a stream and from interfering with the flow thereof. The plaintiff is the owner of the S. % of the N W. and the E. of the S. W. ^ of section 22 in township 12 S., of range 43 E. of the Willamette Meridian, which is arid land.

<p>From Morrow: William E. Ellis, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action by Sarah C. Jennings and her husband against the Oregon Land & Water Co. to recover damages for the breach of a contract for the sale of real estate. On June 27, 1904, the defendant corporation, through its superintendent and manager, F. B. Holbrook, made and entered into the following contract with the plaintiff Sarah C. Jennings:</p> <p>“Irrigon, Oregon, June 27, 1904.</p> <p>This Agreement, made and entered into the day and year above written, between F. B. Holbrook, superintendent, party of the first part, and Sarah Jennings, party of the second part, Witnesseth:</p> <p>That the Party of the First Part Hereby Agrees to convey to the party of the second part all the following described property, to wit: Lots 1, 2, 3, 4, and 5, block 37, and lots 25, 21, 22, 23, and 24, block 36, Irrigon, Oregon — in fee simple and free of incumbrances;</p> <p>And the Party of the Second Part Hereby Agrees, in consideration of the conveyance to them of the said property as above described, to erect on lots in block 37 a hotel building, fifty by eighty (50x80) feet, two stories high, as per plans and specifications furnished the Wind Eiver Lumber Company for material for same, and that work on said building shall commence not later than sixty days from date and be completed not later than twelve months from date.</p> <p>In Witness Whereof the parties hereto have hereunto set their hands and seals the day and year above written.</p> <p>Witness: Geo. Jennings. F. B. Holbrook, Supt.</p> <p>Sarah C. Jennings.”</p> <p>The complaint alleges that within 60 days after the making of the contract Mrs. Jennings commenced the construction of the building as agreed upon, and fully completed the same according to plans and specifications before the expiration of the time stipulated;, that thereafter she demanded of defendant a deed for the real property described in the contract, and that it failed and neglected to make the same and repudiated the contract, declaring that it never would convey such real estate to her; that the real property, with the building thereon, was at the time of the breach by defendant of the reasonable value of $8,000; and that plaintiff is damaged in such sum — and prays judgment accordingly. The answer admits the execution of the contract as alleged, the demand by plaintiff for a conveyance of the property, and the defendant’s refusal to make the same, but denies generally all the other allegations of the complaint. For an affirmative defense it is alleged that the sole consideration for the agreement was the construction and maintenance by Mrs. Jennings of a first-class hotel on the property agreed to be conveyed to her, and that she had failed and neglected to comply with her contract, and had suffered liens and incumbrances to be placed on the property in excess of its value. The reply denied generally all the allegations of the answer. Upon the issues thus joined the cause was tried to a jury, and a verdict returned in favor of the plaintiff for $3,200. From a judgment entered thereon the defendant appeals.</p>

Erom Union: Kobert. Eakin, Judge. Statement by Mr. Justice Bean. This is a suit by Anna Oliver against Ered Synhorst, as street superintendent of La Grande, to enjoin him from removing or interfering with a fence and sidewalk of the plaintiff along the north side of lots 3, 4 and 5 in block 74 of Chaplin’s Addition to La Grande, and from destroying or in any manner interfering with her shade trees, ornamental trees and shrubbery thereon.

From Baker: Samuel White, Judge. Statement by Mr. Justice Moore. This is a suit by Bridget Kane against David Littlefield and Fred Cole to enjoin interference' with dams built across a non-navigable stream to divert water for irrigation.

From Wallowa: Robert Eakin, Judge. Statement by Mr. Ciiiee Justice Bean. Haun in an action at law brought by Edward J. Martin against him to recover the possession of real property.

From Malheur: George E. Davis, Judge. Statement by Mr. Justice Moore.

<p>Waters — Measure op Appropriator’s Right.</p> <p>1. An appropriator of the waters of a stream acquires a right thereto only to the extent of his beneficial use, and beyond the amount necessary for the purpose of the appropriation he has no right to the water in any way.</p> <p>Injunction by Appropriator Against Subsequent Diversion.</p> <p>2. The issuing of an injunction against a subsequent appropriator of water to prevent the diminution of the supply to the first claimant is somewhat a matter of discretion, affected by the relative importance of the interests involved, the ability of the defendant to respond in damages and other equitable considerations.</p> <p>Waters — Enjoining Uninjurious Diversion.</p> <p>3. An appropriator is not entitled to enjoin the use by subsequent appropriators of water that he cannot use, either because the stream carries more than his appropriation or because it carries so little as to be useless to him — in either case the original claimant is uninjured.</p> <p>Injunction — Discretion.</p> <p>4. Under the facts as disclosed here a court of equity ought not to enjoin the defendant from using the small amount of water that he needs.</p> <p>Injunction — Discretion—Adequate Remedy at Law.</p> <p>5. Where the injury, if any, sustained by plaintiff through the diversion of a certain amount of water from a stream by defendant, will be hardly appreciable in comparison with the heavy damage suffered by defendant if the diversion shall be enjoined, and it does not appear that defendant is unable to respond in damages for the injury, an injunction should not be issued.</p>

<p>From Umatilla: William R. Ellis, Judge.</p> <p>Statement by Mr. Chibe Justice Bean.</p> <p>In 1905 the legislature passed an act "to tax all foreign sheep coming into the State of Oregon for the purpose of pasturage, or being driven through the State,” which act is as follows:</p> <p>"Sec. 1. That all sheep, whose owner or owners residing outside of the State of Oregon, shall bring or cause to be brought into the State of Oregon, any such sheep, for the purpose of pasturage, or for the purpose of driving such sheep through the State of Oregon, such sheep shall be liable for, and the owner thereof shall pay, the following tax upon each and every head of sheep: 20 cents per head' for the purpose of pasturage by the year or any fractional part of a year, and when any such sheep shall be driven from the state or any county of the state, such'sheep shall be taxed, and the owners thereof made to pay, 5 cents per head for each and every county through which such sheep shall be driven; and taxes herein specified shall be a preferred lien against any sheep liable to such tax, and the stock inspectors of the several counties of this state may take into their possession any of said sheep and keep and retain such possession until such taxes are paid; provided, that if such tax so due is not paid within thirty days after the same has been assessed, any inspector of stock having any such sheep shall sell the same, by giving ten days’ published notice in the nearest newspaper to where said sheep is held, of the time and place of such sale. And the sale, as herein provided for, shall convey an absolute title to any and all sheep so sold; provided, that the owner of any sheep so sold may, within ten days thereafter, redeem such sheep by paying all charges incurred in the keeping and sale thereof, together with the tax due thereon, and 10 per cent interest and damages thereon on the whole amount of taxes and charges.</p> <p>See. 2. The stock inspectors of the several counties of this State are hereby empowered to collect the taxes mentioned in Setion 1 of this act; and it shall be the duty of such inspectors to collect all taxes and fines hereunder, and to keep careful watch that all foreign sheep shall pay all the taxes and fines herein provided for; and when any such sheep shall come or be driven into any county of this State, it shall be the duty of the stock inspector of such county to immediately take such sheep into his possession and to keep and retain possession of the same until the taxes and fines due thereon are paid, or until the sale thereof, as herein provided for, has been made; and all taxes and fines collected under this act shall be paid into the general fund of the county where collected. The stock inspector shall be allowed $3.00 per day for each and every day actually employed, and said wages to be paid by the county for which such services are rendered; provided, that when the inspector of any county has to take any stock in charge and sell the same, in order to collect the taxes and fines due thereon, then such per diem charge of $3.00 per day shall be a charge against any sheep so held and sold for taxes and fines, as herein provided for.</p> <p>Sec. 3. When any tax shall be paid by the owner or owners of any sheep, the stock inspector, to whom such tax is paid, shall issue a tax certificate to the party so paying, which receipt or certificate shall state for what purpose the same was issued, whether for pasturage or driving; provided, that under no condition shall any stock inspector issue any certificate, permit, or receipt, whether for pasturage or driving, for any diseased or unhealthy sheep, but shall immediately cause all diseased or unhealthy' sheep to be taken beyond the limits of the State at the point where the same sheep entered the State. The owner or owners of any sheep who shall fail or refuse to immediately remove any diseased or unhealthy sheep (when brought into this State) when ordered to do so by any stock inspector, shall be fined $25 for each and every day that such stock is kept within the State after having been notified to remove the same by the stock inspector of the county wherein such stock is located.</p> <p>Sec. 4. The provision of this act shall not apply to any of the hereinbefore mentioned stock that shall be brought into the State for the purpose of being fed through the winter months of November, December, January and February, of each year, or to any stock being shipped to market.” Laws 1905, p. 268, e. 156.</p> <p>The plaintiff, W. P. Beser, is a resident of Washington and the owner of 100 head of sheep, which were driven into Umatilla County, in this State, for the purpose of pasturage in the spring of 1905. In July of that year the stock inspector threatened to take possession of the sheep and sell them as proviled in the act referred to unless the tax of 20 cents a head was paid thereon. In order to avoid such seizure and sale, the plaintiff paid the tax under protest, and the same was converted into the general fund of the county. The plaintiff thereafter brought this action to recover the amount so paid, on, the ground that the law under which it was exacted was unconstitutional and void, because not in accord with Section 1, Art. IX, of the Constitution of Oregon, which provides that the rate of assessment and taxation shall be equal and uniform. The plaintiff had judgment in the court below, and the defendant appeals.</p>

<p>Judgment — Res Judicata — Parties Concluded.</p> <p>1. A judgment or decree, to be available as an estoppel barring a subsequent proceeding, must have been between the same parties or others in privity with them.</p> <p>Appropriation op Water — Judicial Notice of Local Custom.</p> <p>2. In the case of a water appropriation on the public domain claimed under the act of Congress of July 26, 1866 (14 Stat. IT. S. 253, c. 262, § 9), it is not necessary to offer evidence of local custom, as the right and method of appropriation was so universal that the courts know it ■ by judicial notice: Speake v. Hamilton, 21 Or. 3, and Brown v. Baker, 39 Or. 66, followed; Lewis v. McClure, 8 Or. 274, overruled.</p> <p>Swamp Land — When Title Passed to the State.</p> <p>3. Under the congressional act of 1860, extending the benefit of the swamp land act to Oregon (12 Stat. U. S. 3, c. 5), the title to land claimed thereunder did not pass until the issuance of patents.</p> <p>Waters — Uses of Appropriation.</p> <p>4. Damming a stream on public land of the United States so as to overflow adjoining ground, and using the power thus obtained in operating a sawmill and flour mill was an appropriation of the right to use the water so impounded for “manufacturing purposes,” within the meaning of the congressional act of July 26, 1866, now Rev. Stat. U. S. 5 2339.</p> <p>Waters — Rights of Appropriator for Manufacturing.</p> <p>5. Since the rights of those who had appropriated water from the public domain for manufacturing purposes prior to a conveyance thereof were protected by the act of congress of July 26, 1866 (14 Stat. U, S. 253, c. 262, §9), and the rights of such persons were also protected against persons desiring to construct drainage ditches by the legislative act authorizing the digging of such ditches (Laws 1868, pp. 21, 22, §9), a subsequent patent issued without reserving vested or accrued water rights does not affect them.</p>

From Wasco: William L. Bradshaw, Judge. Suit for an accounting by F. C. Sexton and W. E. Waltber against Malcolm Mclnnis, in which defendant appeals from the decree. The decision was affirmed, but on rehearing the affirmance was changed to a modification.

<p>Criminal Law — Threats by Third Person.</p> <p>In doubtful cases evidence of threats by one of several persons acting under a general plan is admissible for the purpose of showing the feelings of the conspirators, and aiding the ascertainment of truth from the conflicting claims, when the threats are reasonably connected in time and circumstance with the principal event; but evidence of threats made by a third person against the prosecuting witness cannot be imputed to defendant, though made in his presence, unless some concert of purpose is shown between such third person and defendant: State v. Oiling Ling, 16 Or. 419, distinguished.</p>

From Circuit Court of Multnomah County. Action by Benjamin H. Bowman against George P. Holman. Plaintiff appeals from an order setting aside a default order in his favor. Defendant now moves to dismiss the appeal.

From Klamath: Henry L. Benson, Judge. Statement by Mr. Chief Justice Bean. This is a suit for an injunction and general equitable relief by Israel Katz against Silas Obenchain, as sheriff, and others.

From Multnomali: Alered F. Sears, Jr., and Arthur L. Frazer, Judges. Statement by Mr. Justice Moore.

<p>Justices op the Peace — Appeal—Authenticating Transcript.</p> <p>The transcript required by Section 2246, B. & C. Comp., to perfect an appeal from a justice’s court to a circuit court, must be authenticated by the justice before whom the case was tried, or by some one whom he has authorized to affix his signature: Jacobs v. Oren, 30 Or. 593, distinguished. Unless so authenticated the transcript is void and the appeal cannot be sustained.</p>

<p>Limitations — Notes—Effect of Payment by Trustee in Bankruptcy of One Signer on Liability of Others.</p> <p>Under Sections 24 and 25 of B. & C. Comp., providing that the statute of limitations as to an existing contract shall begin to run from the time the last payment was made, if the statute has not then run, a part payment on an existing obligation by the trustee in bankruptcy of one of the obligors extends the life of the obligation as to all the obligors.</p>

<p>From Lake: Henry L. Benson, Judge.</p> <p>Statement by Mr. Justice Hailey.</p> <p>The amended complaint in this case covers some 60 pages of tbe printed abstract and shows that this suit is brought for and on behalf of the State as plaintiff, by A. M. Crawford, Attorney-General, pursuant to the written request of the Govorner, and that defendant, the Warner Valley Stock Co., a private corporation, claims to be the owner, through mesne conveyances from the Hnited States, of a large quantity of land in Lake County, Oregon, known as “swamp land,” the title to which was derived under the swamp land acts of the Hnited States and this State, which are referred to and numerous provisions thereof set out in the amended complaint. Defendant acquired title to certain of its lands through deeds from one R. F. McConnaughy, who derived his title from the State through mesne conveyances under the state swamp land act, and acquired title to the remainder of its lands on June 23, 1899, by direct deed to it from the State, based upon an assignment to it by mesne conveyances of a certain certificate of purchase of swamp lands issued April 23, 1884, to H. C. Owen, as assignee of all rights to purchase such lands under an application made by one W. A. Owen and four others, who had assigned their rights to him, which original application had been made by them December 2, 1870. The original .application for the McConnaughy lands was made December 6, 1876, and on October 31, 1882, another application, accompanied by proofs of reclamation, for a part of the lands embraced in the original application, was filed with the State Land Board, and on January 18, 1883, a deed was issued for such land to R. F. and Martin McConnaughy; the former afterward acquiring all interest of the latter therein. The plaintiff alleges fraud and various other matters tending to avoid the rights of the defendant and its predecessors in interest in procuring patents from the State and the United States to the lands involved, and charges defendant with knowledge of all matters alleged, and particularly alleges that the lands never were and are not swamp lands, and that on December 2, 1870, when W. A. Owen and his associates made their application, they did so,</p> <p>“having full notice, and well knowing and believing, that none of the land thereafter settled upon or claimed under the preemption, homestead or timber culture laws of the United States, hereinafter described, by the persons hereinafter named, was then, or on the 12th day of March, 1860, swamp or overflowed land, but was then and on said 12th day of March, 1860, embraced within and part of the permanent bed of Lake Warner, and covered by the waters thereof.”</p> <p>Also, the plaintiff charges and claims that on December 6, 1876, when the McConnaughys made their application to purchase, they did so,</p> <p>“having full notice and well knowing and believing that none of said land so settled upon, or claimed under the pre-emption, homestead or timber culture laws of the United States, herein-before mentioned and hereinafter described, was then, or on the 12th day of March, 1860, included within and part of the permanent bed of Lake Warner and covered by the waters thereof.”</p> <p>In 29 separate paragraphs following are set out the right's of as many separate persons in and to certain definite subdivisions of land, for the greater portion of which it is alleged defendant wrongfully and illegally procured a patent from the United States to the plaintiff, defendant’s grantor. These paragraphs allege the qualifications of such persons to acquire rights upon the public lands of the United States, and the rights claimed by each, whether as pre-emption, homestead or timber culture, and allege in each ease that at the time of the settlement thereon by such settler the lands were ■ “vacant unsurveyed public lands of the United States, not mineral nor swamp, nor selected as swamp, or overflowed land, nor otherwise reserved,” and were settled upon with intent to acquire title thereto under the laws of the United States as a homestead, pre-emption or timber culture claim as alleged in each case, ánd that afterwards, in 1887, such lands were surveyed by the United States and thrown open for settlement in the United States land office at Lakeview, Oregon, on January 15, 1889, and were filed upon by such settlers on that and other days, and filing receipts issued therefor, and that such lands have been ever since and now are occupied by such settlers; the dates of settlement ranging from July, 1879, to November 12, 1889. Patent to the State from the United States for the lands .acquired by the defendant from the State was issued October 6, 1903, and delivered to defendant, and it is alleged that this patent was fraudulently obtained by the defendant falsely and fraudulently representing to the Secretary of the Interior that the land described therein was swamp land and had been duly sold and reclaimed by its grantors, and after due proof of reclamation conveyed to it by the State, and that as such grantee it was entitled to have a patent issued from the United States to the State for the land. It is also alleged that the Governor, as Land Commissioner, protested against the issuance of such patent, on the ground that the lands were not swamp and were fraudulently obtained, and that the several persons mentioned above as having settled on the lands under the pre-emption, homestead and timber culture laws of the United States were entitled to patents therefor from the United States and deeds from the State, and that the Governor refused to accept any patent for said lands to the State of Oregon, but that notwithstanding such protest and refusal a patent was issued to the State by the Secretary of the Interior “for the greater portion of said lands so settled on, or claimed, by the several persons above named, as pre-emptions, homesteads or timber culture claims, * * and other lands,” and delivered to the defendant, who had it ‘filed and recorded in the office of the County Clerk of Lake County, Oregon, on May 10, 1904; that since the delivery of such patent to it, defendant has begun certain ejectment actions, and a suit to quiet title to certain lands claimed to have been settled by the several parties mentioned as pre-emption, homestead or timber culture claimants, and threatens to, and will unless restrained, prosecute the actions and suit already begun, and will begin other like suits and actions against other settlers mentioned.to recover the lands settled upon and annul their rights to such lands:</p> <p>“And because but few, if any, of said matters can be availed of as defenses at law, each and every of said persons will be much embarrassed and endangered in attempting to make any defense at law in any of said actions, and is entitled to have said several matters and things investigated and determined in a court of equity, where all said matters of defense can be fully considered and adjudged, and complete justice administered, and have said actions at law in the meantime enjoined and restrained.”</p> <p>A tender is made by plaintiff to pay any sum found due defendant for the purchase price of the lands patented by the plaintiff to defendant or its grantors, after deducting the profits received from the use and occupation of the lands, upon an accounting therefor and a surrender and cancellation of said conveyances. The amended complaint then closes with the following prayer:</p> <p>“Wherefore, the plaintiff prays that said sales and conveyances of said lalnds, and said patent from the United States, may be declared unauthorized, illegal, fraudulent and void, and decreed to be given up and canceled; that each of said persons so settling upon and claiming a tract or parcel of said lands under the pre-emption, homestead or timber culture laws of the United States, and the laws of the State of Oregon in that behalf, as aforesaid, be declared and decreed entitled to retain possession of such tract or parcel, and to conveyance of the title thereof in fee simple as against every party to this suit; that it may be decreed that said patent from the United States to the State of Oregon of the 6th day of October, 1903, was never delivered to nor accepted by the State of Oregon, the plaintiff herein, and was inoperative to pass any title or interest in any of the lands therein described to said State of Oregon, the plaintiff herein, or to the Warner Valley Stock Company, the defendant herein; that the Warner Valley Stock Company, the defendant herein, its officers, agents and servants, be restrained by an order of this court from selling, conveying or incumbering any of the lands so settled upon and claimed by the several persons above named, under the pre-emption, homestead and timber culture- laws of the United States and the laws of the State of Oregon in that behalf, and from prosecuting said actions or suits against said persons or any of them, and from interfering in any manner with the possession of said several tracts or parcels of lands, or any of them, pending this suit, or until the further order of this court; and that upon the final hearing said injunction be made perpetual, and that the plaintiff recover its costs and disbursements of this suit, and may have such other and further relief as to the court may seem meet and equitable.”</p> <p>A general demurrer to this amended complaint, for the reason that it did not state facts sufficient to constitute a cause of suit, was sustained by the lower court, and the ease dismissed by a decree from which this appeal is taken.</p>

From Baker: Samuel White, Judge. Statement by Mr. Chiep Justice Bean. This is an action by the Mine & Smelter Supply Co. against the Columbia Gold Mining Co. The plaintiff is a dealer in mining machinery and supplies at Denver, Colo., and the defendant is a mining corporation in Baker County, in this state.

From Multnomah: Alfred F. Sears, Jr., Judge. John F. Shorey appeals from a conviction for violating the child labor law of 1905, by employing a messenger boy less than 16 years old more than ten hours in one day.

<p>Specific Performance — Necessity and Sufficiency of Tender.</p> <p>1. Where the vendee in a contract for the sale of land has deposited in court the money tendered, his withdrawal of the same before trial precludes a decree for specific performance in his favor, unless some act of the vendor relieves the vendee from the necessity o'f a tender.</p> <p>Denial of Liability as Affecting Need of Tender.</p> <p>2. Where the vendee in a contract for the sale of land has the right to pay any part of the consideration in commissions for selling other lands of "the vendor, the vendor’s denial of liability for the commissions earned by the vendee is equivalent to a refusal to execute a deed for the land specified, and hence the vendee is not obliged to make a tender of the balance as a condition precedent to a suit for specific performance.</p> <p>Corporations — -Authority of Director or Stockholder as Agent.</p> <p>3. The act or declaration of a director or stockholder of a corporation, acting in his personal capacity, does not bind the corporation, unless he is the agent of the corporation as to that matter, or his conduct is ratified.</p> <p>Corporate Agency — Conduct Amounting to Ratification.</p> <p>4. The conduct of a corporation in refusing to pay the claim of one with whom it had a contract and defending a suit brought to enforce such claim is a ratification of the act of one of its stockholders or directors in denying liability on the contract.</p> <p>Tendor and Purchaser — Construction of Contract to Seld.</p> <p>5. A written proposal from a corporation owning lands to plaintiff, to sell him a certain block for a specified sum, to be paid for in cash or in commissions “on sales” effected by plaintiff, “It is all to be paid for in either cash or commissions within three years from the date hereof, ° v you to obtain purchasers for such of our lands as we place at your disposal * * this agreement to sell to others, except, yourself, to remain in force for 12 months,” is unambiguous, and not susceptible -of the construction that plaintiff was required to sell all the corporation’s land in order to entitle him to a deed of the block in question.</p> <p>Specific Performance — Sufficiency of Description in Contract.</p> <p>6. A contract for the sale of land referring to it as a certain block, as designated on a map on file in the vendor’s office, and possession being delivered to the purchaser, is sufficiently definite to enable a surveyor to locate on the ground the block as surveyed, though the plat was not recorded, and hence is sufficient to sustain a decree for specific performance.</p> <p>Costs and Disbursements in Equity.</p> <p>7. Under Section 566, B. & C. Comp., the costs and disbursements in an equity suit may be assessed against defendant in all the courts through which the case has passed.</p>

From Grant: George E. Davis, Judge. Statement by Mr. Chief Justice Bean. This is an action by The William Hanley Co., a private corporation, against J. D. Combs to recover $3,300 advanced by the plaintiff on an executory contract for the sale of personal property.

From Multnomah. Arthur L. Frazer, Judge. Statement by Mr. Justice Hailey. This is a prosecution for kidnapping against James White and others. In February, 1903, the defendants were partners in conducting a sailor boarding house in Portland, Oregon, and also engaged in furnishing crews to vessels in that port.

From Union: Bobert Eakin, Judge. Statement by Mr. Ghiee Justice Bean. This is an action by G. EL Lindsay against the Grande Eonde Lumber Co. to recover for an injury received by the plaintiff while in the employ of the defendant, and alleged to have been caused by its negligence.

Prom Mnltnomab: Arthur L. Frazer, Judge. Statement by Mr. Chief Justice Bean. This is an action by J. T. Goss against the Northern Pacific Railway Co. for negligence. On August 27, 1903, the plaintiff was a passenger on one of the defendant’s trains from Kalama to Tacoma. Having occasion during the journey to go to the toilet, he found the room occupied, the door locked and the door from the car to the platform opened back against the toilet door.

From Malheur: George E. Davis, Judge. Statement by Mr. Justice Moore. This is a suit by J. A. Morton against the Oregon Short Line Railway Co., a corporation, to enjoin the maintenance of obstructions to the flow of water in a stream.

From Benton: James M. Hamilton, Judge. Statement by Mr. Justice Moore. This is a suit by James E. Hamilton, as sole heir of his mother, Anna Hamilton, deceased, against Webster Holmes and W. H. Holmes to have an absolute deed executed by her to Webster Holmes declared to be a mortgage and for an accounting.

<p>Next Friend as Party — Defect of Want of Capacity to Sue — Demurrer — Waiver of Objection.</p> <p>1. The next friend of an incompetent litigant is a “party” to the litigation, and if the incompetent has no capacity to sue, for any reason, the objection must be taken by demurrer, under Section 68, B. & C. Comp., or it will be considered waived, under Section 72.</p> <p>Depositions — -Effect of Misdescribing Special Referee.</p> <p>2. Where depositions have been taken before a specified referee, they should not be suppressed because he was a different official than he was supposed to be, as, where he was described as a notary public in the order of appointment, though he was in fact a United States commissioner.</p> <p>Evidence of Mental Capacity to Execute Deed.</p> <p>3. The evidence shows that E. Owings was mentally competent to execute a valid deed on August 20, 1904.</p> <p>Fraud — Undue Influence — Evidence—Burden of Proof.</p> <p>4. The evidence of the plaintiff compels the inference that the grantee in the deed sought to be canceled unduly influenced the grantor to execute it, thereby casting on the grantee the burden of showing that the grantor understood what he was about to do, and that his consent to the deed was not obtained through taking advantage of his depressed mental and physical condition.</p> <p>Sufficiency of Evidence.</p> <p>5. The evidence for defendant is not sufficient to overcome the inference created by the plaintiff’s case that the deed in question was obtained through undue influence.</p> <p>Cancellation of Instruments — Restoring Conditions — Tender.</p> <p>6. In a suit to set aside a conveyance for fraud and undue influence, it appeared that plaintiff had received, in consideration of the conveyance, deeds to two tracts of land. Plaintiff was mentally deficient, and led his attorney to believe that he had executed to defendant a deed to one of the tracts, so that a deed to the other tract was the only deed tendered before the suit was commenced. At the trial, when it was ascertained that no deed had been given to the former tract, a deed thereto was executed by plaintiff and tendered. Held, that the tender was sufficient.</p>

<p>From Washington: Thos. 'A. -McBride, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is a suit by E. W. Haines against J. W. Connell, sheriff, and J. F. Schoch to remove a cloud from a title, and comes here on an appeal from a decree in favor of the plaintiff. On April 22, 1902, F. T. Kane was the owner of the S. E. quarter of section 11, township 2 N., range 5 W. On that day he attempted to convey the same by warranty deed to the plaintiff, but, by mistake, the land was described as being in range 4 instead of 5. The deed was not recorded until July 11, 1904, and about that time plaintiff discovered the mistake in the desecription, and,, after having it corrected, had the deed rerecorded on July 19th. The land was and is wild land, and not in the possession of any one. On July 1, 1904, before the deed to Haines had been recorded, the defendant Connell’s predecessor in office, as sheriff of Washington County, levied, or attempted to levy, upon the property under a writ of attachment issued in an action brought against Kane by J. F. Schoch, by making and filing in the proper office a certificate of attachment as follows:</p> <p>“State of Oregon,</p> <p>County of Washington — ss.</p> <p>I, J. W. Sewell, Sheriff of Washington County, Oregon, do hereby certify that by virtue of a writ of attachment issued out of the Circuit Court of the State of Oregon for the County of Washington, upon the 30th day of June, A. D. 1904, in a cause therein pending, wherein J. F. Schoch is plaintiff and F. T. Kane is defendant, said writ being in favor of said plaintiff and against the property of said defendant, and directed to me, the Sheriff of Washington County, I did on the 1st day of July, 1904, at the instance of the above-named plaintiff, attach the following described real property of the within named F. T. Kane, to wit: Lot 1, block 31, Forest Grove; lot 9, block 1, West Portland Heights; southeast quarter of section 11, township 2 north, range 5 west of Willamette Meridian, all said property being in Washington County, Oregon.</p> <p>In Witness Whereof I have hereunto set my hand this 1st day of July, A. D. 1904, at 10 o’clock a. m.</p> <p>J. W. Sewell,</p> <p>Sheriff of Washington County, Oregon.”</p> <p>The plaintiff thereafter,, and before the action of Schoch v. Kane had passed to judgment, commenced this suit to enjoin and restrain the defendants from further proceeding under the attachment, and for a decree canceling the same, on the ground that it tended to cloud his title. The complaint alleges that the defendants liad notice of the plaintiff’s interest at the time of the levy of the attachment. This averment is denied by the answer. For an affirmative defense the answer sets up the attachment proceeding in detail, and alleges that the attachment was caused to be levied by Schoch, the attaching creditor, in good faith, and without notice that the property had been transferred to the plaintiff, or to any other person, or that plaintiff claimed any interest or title, legal or equitable, therein. This allegation is not denied by the reply, and there was no evidence given on the trial by either party concerning a knowledge or want of knowledge of plaintiff’s interest in the property by the attaching creditor at the time of the attachment. Plaintiff had decree in the court below, and the defendants appeal.</p>

From Multnomah-: Melvin C. George, Judge. Action for the recovery of money by W. C. Puffer and Frank E. Dooley against the American Central Insurance Co. The other facts appear in the opinion.

From Marion: William Galloway, Judge. Suit by J. Wolfard and others against A. W. Fisher, executor, to enjoin the continuance of a nuisance, resulting in a decree for defendant, from which this appeal is taken.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Justice Hailey. Jasper Jennings and bis sister Dora were jointly informed against by tbe District Attorney of tbe First Judicial District of this state for the crime of murder in killing their father, Newton M. Jennings, on September 7, 1905, in Josephiné County, Oregon. In January, 1906, lie was tried separately, convicted of murder in the first degree, and sentenced to be banged, and appeals to this court. .

From Multnomah: John B. Cleland, Judge. Action by Frank Wihnot and others against the Oregon Railroad & Navigation Co. The facts appear in the opinion. Defendant had a judgment, and plaintiffs appeal.

From Multnomah: Arthur L. Frazer, John B. Cleland and Melvin C. George, Judges. Statement by Mr. Chief Justice Bean. This is a contest over the probate ^in an Oregon court of the will of Amanda W. Reed, who died at Pasadena, California, in May, 1904. Mrs. Reed was the widow of S. G. Reed, deceased, and died without children. Her will was executed September 4, 1901, in this state, and recited that she resided at Portland.

Prom Columbia: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Bean.

<p>From Marion: George H. Burnett, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action brought by G. A. Setterlun against H. A. Keene and J. E. Towle, two of the directors of a school district, to recover damages for having- been denied the right to vote at a school meeting. Upon the trial he was nonsuited because it did not appear that he had property in the district as shown by the last county assessment upon which he was liable to pay a tax, and was, therefore, not a qualified voter, and, he appeals. The ease was submitted on briefs under the proviso of Rule 16, 35 Or. 587, 600.</p>

From Marion: William Galloway, Judge. Writ of review by John Amort against School District No. 80 and others to review the validity of the proceedings of the school district in determining to erect a school building and incurring an indebtedness therefor. From a decree in favor of plaintiff, defendants appeal.

Action by S. S. Brownell against the Salem Flouring Mills Company. From a judgment for plaintiff, defendant appeals. Respondent now moves to dismiss the appeal.

From Union: Robert Eakin, Judge. Statement by Mr. Justice Hailey.

From Multnomah: John B. Cleland, Judge. Action by the City of Portland against several persons for violating a municipal ordinance. The defendants appeal from a judgment of conviction.

From Umatilla: William E. Ellis, Judge. Statement by Mr. Chief Justice Bean. This is an action of trover by M. M. Harvey against Victor Lidvall.

From Union: Robert Eakin, Judge.' Statement by Mr. Chief Justice Bean. This is an action to recover money by S. S. Boothe against J. W. Scriber. On November 28, 1898, the plaintiff delivered to the defendant $10,625, to be used in the purchase of 100 shares of the capital stock of the Farmers’ & Traders’ National Bank of La Grande.

<p>From Grant: George E. Davis, Judge.</p> <p>Suit for an injunction, decree for plaintiff and defendant appeals.</p>

<p>Actual Notice of Lien.</p> <p>1. The statement by one of the payees of a note to the cashier of a bank at which he left it for collection, that he had a mortgage on the maker’s sheep to secure the note constitutes actual notice to such bank of the mortgage so referred to, though it also secured the payment of another note that was not referred to.</p> <p>Effect of Record of Unacknowledged Chattel Mortgage.</p> <p>2. Under Sections 5630 and 5631, B. & C. Comp., providing that chattel mortgages “shall” be acknowledged by the maker and that “such” mortgages may be recorded, an unacknowledged chattel mortgage is not entitled to be recorded and its presence in the record books does not impart to any one notice of its existence.</p> <p>Effect of Actual Knowledge of Prior Chattel Mortgage.</p> <p>3. Persons taking chattel mortgages on property with actual knowledge of a prior mortgage are not mortgagees “in good faith” within the meaning of Section 5633, B. & C. Comp., and their mortgages are not entitled to precedence, though the prior mortgage was unacknowledged, in consquence of which its actual record was not notice.</p> <p>Chattel Mortgage — Removal to Another Countt — Knowledge.</p> <p>4. The effect of actual knowledge of an existing prior unrecorded chattel mortgage is not affected by a removal of the property to another county, Section 5632, B. & C. Comp., being applicable only to subsequent lienors for a valuable consideration and without notice.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Hailey.

From Malheur: George E. Davis, Judge. Statement by Mr. Justice Moore. This is an action by the First National Bank of Payette, Idaho, a corporation, against William Miller, to recover money. The faets are that the defendant, who is an attorney at law, commenced an action in the circuit court of Malheur County for one Henry Helmick against one O. W. Porter, and on April 11, 1903, recovered therein the sum of $2,930.22, including costs and disbursements.

From Umatilla: William B. Ellis, Judge. Action on a sheriff’s bond as tax collector by Baker County against A. H. Huntington and others. There was a judgment for plaintiff, and several defendants appeal.

<p>Bills and Notes — Accommodation Party — Notice—Statutes.</p> <p>1. Under the express provisions of Section 4431, B. & C. Comp., the holder of a note for value is entitled to recover thereon against an accommodation party, though the holder had notice at the time he took the note that the person sought to be charged was only an accommodation party.</p> <p>Principal and Surety — Failure to Pursue Principal Debtor.</p> <p>2. Failure of a creditor to proceed against the principal debtor on the request of the surety does not release the surety from liability.</p> <p>Injunction — Adequate Remedy at Law.</p> <p>3. Where a husband signed certain notes for the accommodation of his wife, who thereafter died, leaving an estate sufficient to pay them, the husband is not entitled to an injunction restraining the holder from pursuing him, instead of filing the notes as a claim against the wife’s estate; the husband having an adequate remedy at law by himself paying the notes to the holder and filing them against the wife’s estate.</p>

<p>From Union: Robert Eakin, Judge.</p> <p>Statement by Mr. Chiee Justice Bean.</p> <p>This is a suit by A. P. Sprague against A. C. Schotte and another to enforce the specific performance of the following-written instrument:</p> <p>“Elgin, Oregon, Eeb. 6th, 1905.</p> <p>This Agreement entered into this sixth day of Eebruarjq 1905, between A, C. Schotte and A. P. Sprague, both of Elgin, Ore., whereby Á. C. Schotte agrees to sell, deliver and transfer by good and sufficient warrantee deed to- said A. P. Sprague his homestead on the Wallowa River; legal description is as follows: W. 4 of N. ¿ S. E. 4 of N. W. 4, N.' E. 4 of S. W. i, of Sec. 26, Tp. 3 North of Range 40 E. W. M., for the sum of sixteen hundred dollars ($1600.00). This agreement is in force from this date to April first, 1905, when it will become void.</p> <p>A. C. Schotte.” •</p> <p>The complaint, after setting out the instrument in full, alleges that on March 8, 1905, the defendant Schotte, without the knowledge or consent of plaintiff, and for the purpose of defrauding him, sold and convej'ed the land described in said instrument to his codefendant, the Palmer Lumber Company; that at the time of such purchase the lumber company had full knowledge and notice of the agreement in question and that plaintiff intended to comply therewith; that thereafter, and on the 11th day of March, the plaintiff, without notice or knowledge of the sale and conveyance to the lumber company, tendered to Schotte the full sum of $1,600, the purchase price of the land, and demanded a deed therefor, but that he refused and neglected to make or execute the same. The prayer is for a decree that the lumber company be adjudged to hold the legal title to the property in question in trust for the plaintiff,- and for $500 damages. A demurrer to the complaint was sustained, the suit dismissed, and plaintiff appeals.</p>

From Union: Robert Bakin, Judge. Proceeding by Cora L. Joel and another to compel P. A. McDonald, as administrator of the estate of John Morrison, deceased, to file a final account. From a judgment in favor of petitioners, defendant appeals.

From Malheur: George E. Davis, Judge. Writ of review by John Shannon against the county court of Malheur County and others. From a judgment for defendants, plaintiff appeals.

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Action by F. S. West against J. W. Higgins and the Aetna Indemnity Company. From a judgment for plaintiff, defendant corporation appeals.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p>

<p>Prom Coos: James W. Hamilton, Judge.</p> <p>Petition by E. D. Hussey for a writ of habeas corpus to secure his release from custody on a charge of violating the local option law. Erom a judgment denying the petition, petitioner appeals.</p>

<p>Prom Union: Kobert Eakin, Judge.</p> <p>Proceedings by Union County for the laying out of a highway. Prom a judgment of the circuit court dismissing an appeal from the county court by Walter M. Pierce, a claimant for damages, he appeals.</p>

<p>From Harney: George E. Davis, Judge.</p> <p>Suit by A. Miranda against Ed. Carlson, for an injunction, resulting in a decree for defendant, from which plaintiff appeals. The case was submitted on briefs under the proviso of Hule 16: 35 Or. 587, 601.</p>