Volume 49 — Oregon Reports

From Baker: Samuel White, Judge. Contempt proceeding by the State on the relation of private jjarties to punish respondent for an alleged violation of an injunction. Respondent appeals from an order adjudging him guilty.

Original petition for a writ of mandamus by Nellie Washington to compel John B. Cleland, as a judge of the circuit court for the County of Multnomah, to sign a bill of exceptions or show cause why he should not do so. Respondent demurs to the petition.

From. Baker: Samuel White, Judge. Statement by Mr. Chibe Justice Bean. This is an action by S. A. Heilner, doing business as Heilner Commercial & Commission Company, against John P. Smith and another, doing business as partners under the firm name of John P. Smith & Son, to recover $286.78 for goods, wares and merchandise sold and delivered, cash advanced, and money loaned by plaintiff to the defendants between the 9th day of -June, 1904, and the 27th day of June, 1905.

<p>Carriers — Who Are Passengers.</p> <p>1. Plaintiff was the servant of one who had contracted with a railroad ■company, the contract requiring the railroad to transport the contractor’s servants. When the road was sufficiently completed the company put on a train, consisting of a water tank car, some freight cars, and a passenger ■coach. .When the conductor and crew of such train were preparing to take the locomotive and tank car to a certain place, the contractor requested the conductor to carry plaintiff there on the tank car, and while riding thereon plaintiff was injured owing to the derailment of the train. There was a rule of the company forbidding freight conductors to allow passengers on freight cars. Held, that, under the facts, plaintiif was a passenger on the train.</p> <p>Same — Contributory Negligence.</p> <p>2. It appearing that it was customary for the contractor's servants, when being carried in the performance of their duty, to ride on flat cars, etc., and that plaintiff had no knowledge of the rule in question, he was not guilty of contributory negligence.</p>

From Baker: Samuel White, Judge. Statement by Mr. Justice Moore. This is an action by A. E. Eaton against Edward Blackburn and C. Ii. Breck, partners as Blackburn & Breek, to recover the sum of $233.70. The facts are that the defendants agreed to purchase from the plaintiff five car loads of baled ha3r, f. o. b., at Nodine Spur, Union County, to be transported to Baker City, and to pa3r therefor $11.50 a ton.

<p>Moving to Set Aside Indictment — Statutes—Grand Jury.</p> <p>1. Section 1349, B. & C. Comp., prescribing the grounds on ■which an indictment may be set aside, is exclusive of all other reasons for such a motion, and an indictment will not be set aside because the court excused a grand juror at his own request after he had been accepted and sworn, for reasons personal to himself and not because of sickness or physical or mental inability to perform the duties required.</p> <p>Criminal Law. — -Assault Being Armed — Presumption op Intent.</p> <p>2. Where a person uses a deadly weapon with violence upon the person of another, and the act has a direct tendency to do some great bodily injury to the one assailed, the intent to injure him may be inferred from the act, under B. & C. Comp. §788, subd. 3, declaring that the law presumes that a person intends the ordinary consequences of his voluntary act.</p> <p>Instruction Assuming Facts — Province op Jury.</p> <p>3. Where, on a trial for assault with a dangerous weapon, the evidence' of the state showed that defendant committed the offense and he relied on an alibi, an instruction that it was not necessary to prove a specific intent, that the law presumed the intent “from the fact that defendant was armed with a dangerous weapon, and that he made an assault while-so armed,” is erroneous as assuming that defendant was armed with a weapon, which was a controverted fact.</p>

<p>Proceedings for the disbarment of Albert Hawes Tanner, on a charge of perjury, presented by the Grievance Committee of the State Bar Association.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Bean. This is an action by Overbeck, Starr & Cooke Co., a corporation, to recover from J. C. Roberts a balance on the sale and purchase of cotton.

From Multnomah: Thomas A. McBride, Judge. Statement by Mr. Justice Eakin. This is an action brought by Alfred F. Sears, Jr., against Multnomah County to recover an amount of salary as circuit judge, claimed to be due from December 24, 1903, to January 31, 1904, under Section 2926 of B. & C. Comp., as amended December 24, 1903 (Laws Sp.

<p>Homicide — Admissibility of Dying Declarations.</p> <p>1. Where a statement as to the circumstances of an affray was made by the injured person after being told by his physician that he could not recover unless by, a rare chance after a surgical operation, and within a few minutes the person died from the wounds received, the statement is admissible as a dying declaration made under a realization of impending death, although he agreed to submit to the operation.</p> <p>Self Defense — Evidence of Desperate Character of Deceased.*</p> <p>2. On a trial for homicide defended on the ground of self defense, proof that decedent was a violent and dangerous man, is competent, whether the same was known to accused or not, to aid the jury in determining who was the aggressor in the difficulty resulting in the homicide, and the probable nature of the assault made by decedent on accused, if an assault was made; and such evidence should not be limited to the single question, who commenced the affray.</p>

From Grant: George E. Davis, Judge. Action on promissory notes, resulting in a judgment for plaintiff. The case was submitted on briefs, under the proviso of Rule 16: 35 Or. 587, 600.

<p>Error in Printing Oregon Constitution.</p> <p>1. In printing the Constitution of Oregon in the Bellinger & Cotton compilation of laws, the word “subject.” in Art. IV, § 20, line 2, on page 41, has been made plural instead of singular as it appears in the orignal enrolled copy of the constitution.</p> <p>Statutes — Title—Plurality of Subjects.</p> <p>2. Sp. Laws 1903, p. 337, was entitled, “An act to amend” certain</p> <p>specified sections “of an act entitled ‘An act to incorporate the C'ty of Salem,’ and to repeal an act entitled ‘An act to incorporate the City of Salem/ approved October 15, 1862, and an act entitled ‘An act to incorporate the City of Salem/ approved February 15, 1893, and to repeal all acts and parts of acts in conflict therewith/ approved February 17, 1899, and to amend,” certain specified subdivisions of such “act as amended by” certain other sections “of an act entitled ‘An act to amend [certain sections] of the * * act/ approved February 15, 1901.” Section 1 of</p> <p>the act of 1903 amended the act incorporating the City of Salem by extending the territorial limits thereof so as to include pontiff's land. Held, that the act of 1903 was not in violation of Const. Or. Art. IV, §20, requiring that every act shall embrace but one subject, which shall be clearly expressed -in its titfe, etc.</p> <p>Titles of Amendatory Acts.</p> <p>3. The title to an amendatory act is sufficient if it refers to the particular section it is intended to alter, and it will not violate Const. Or. Art. IV, § 20, requiring that every act shall embrace but one subject, which sha1! be expressed in its title, unless the provisions of the amendment are such as could not have been included in the original act as matters properly connected therewith.</p> <p>Title of Amendatory Act — Effect of Slight Error — Construction.</p> <p>4. A slight immaterial error in the title of a legislative act, one that evidently did not mislead or deceive any intelligent person, ought not to be considered as affecting the validity of such act.</p> <p>Sp. Laws 1899, p. 921, was entitled “An act to incorporate the City of Salem,” and to repeal an act entitled “An act to incorporate the City of Salem,” approved October —, 1862, etc., and to repeal all acts and parts of acts in conflict “herewith.” Special Laws 1903, p. 337, amending the former act, -in purporting to set out its title introduced the number “15” in the space between the word “October” and the number “1862” and changed the word “herewith” to “therewith.” Held, that the insertion of such number and the substitution of the word were not such* defects as should defeat the amendment.</p> <p>Municipal Corporations — Incorporation Act — Alteration—Powers op Taxation — Credit.</p> <p>5. Laws 1903, p. 337, § 23, amending the act incorporating Salem, provides that the common council shall not create any debt or liability, provided that at the end of each year an estimate shall be made of the actual revenues to be derived from all sources, and from the total of that estimate the total of fixed charges shall be deducted, and the disbursements of the c'ty council shall be restricted to the balance; that no debt shall be contracted in excess of the estimated revenues, except in case of an emergency, etc., and that the indebtedness of the city sha’l not exceed $20,000, except as provided by Section 6, which authorizes the contracting of indebtedness for the purpose of obtaining control of public utilities. He.'d, that such act is not in violation of Const. Or. Art. XI, § 5, providing that acts for the incorporation of cities and towns shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit, for evidently there is a restriction provided here that seemed sufficient to the legislature.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>William M. Ayers appeals from a judgment of conviction for pool selling.</p>

From Baker: Samuel White, Judge. Statement by Mr. Chief Justice Bean. Held: Sorenson, Knapp and Shelton being present, when a resolution was introduced and adopted, reciting that the company had purchased of Knapp the mining claims referred to for $15,000, no part of which had been paid except the sum of $10,500, leaving due thereon, principal and interest, $35,500, and directing the president and secretary…

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Eakin. Appellant, A. T. Kelliher, is accused by an information jointly with H. H. Turner, with the forgery of a certain instrument in writing, viz., a deed, by signing the name of G. I. Bice to an assignment to this appellant • of a certificate of sale of ■school lands, issued by the State Land Board to G. I. Bice, such assignment being executed and acknowledged in the same manner as a deed to real estate.

<p>From Lane: James W. Hamilton, Judge.</p> <p>John Branton appeals from a conviction of an assault with intent to kill one John Fletcher.</p>

From Columbia: Thomas A. McBride, Judge. Statement by Mr. Justice Eakin. This is an action by respondent, Ervin Seifert, against the Northern Pacific Bailway Co. to recover the value of a cow killed by a train of the appellant at Deer Island Station.

From Marion: John B. Cleland, Judge. Statement by Mr. Chief Justice Bean. This is an action by M. M. High against the Southern Pacific Co. to recover damages for animals killed by a moving train. The defendant operates a railroad from Portland to San Francisco, and has a right of way GO feet wide through the grounds of the United States Indian Training School at Chemawa, upon which it maintains a depot or station for receiving 'and discharging freight and passengers.

From Marion: William Galloway. Judge. Statement by Mr. Justice Eakin. This is a suit by Mary Sappingfield against Amanda King and others to quiet the title to real estate under Section 516 of B. & C. Comp. On February 1, 1897, plaintiff was the owner of the land in question, and her husband, John Sappingfield, owned other property. Plaintiff at that time was- 77 years old and her husband 87.

<p>Practice in Granting Injunctions — Burden of Proof.</p> <p>1. Courts will proceed cautiously in granting injunctions and should not grant them at all in doubtful cases, the burden of proof being with the plaintiff.</p> <p>Same — Case Under Consideration.</p> <p>2. A city granted to plaintiff, a telephone company, the right to use the streets and alleys for 50 years, the wires to be strung on poles above ground or laid under ground, as plaintiff might elect, in consideration of which the city was to use the poles, etc., free for Are alarm purposes, and plaintiff was to furnish the fire department and city officers with telephones without charge. Thereafter, in settlement of a dispute, it was agreed between plaintiff and the c!ty that plaintiff should pay the city $200 annually for 10 years during which the city should not grant any franchise for a telephone system on terms more favorable than those granted plaintiff. During the term the city granted defendant a 25-year franchise; it being required that all lines and wires except house wh'es be placed ’ under ground, and that defendant after the first year should pay 1 per cent on its gross annual receipts to the city, furnish and keep in repair five telephones for the use of the city, and that defendant should not, without the consent of the city, transfer the franchise or plant. Held, that an injunction would not issue to restrain defendant from acting under the franchise, as under the facts it was doubtful as to which franchise was the most favorable.</p>

<p>Fraud — Case Under Consideration.</p> <p>1. The evidence is ample to sustain the finding of the trial court that the deed executed by S. V. Groesbeck and wife to T. J. Groesbeck on April 2, 1902, was induced by fraud and undue -influence and while S. V. Groesbeck was so mentally incapacitated as to be incapable of understanding his conduct, and said deed was properly canceled at the suit of the other children of S. V. Groesbeck.</p> <p>Cancellation of Instruments — Need of Returning Consideration.</p> <p>2. The object of returning the consideration received before setting aside a transfer for fraud is to place the parties as they were before the occurrence, and where the grantee has received during his possession an amount equal to what he paid, there is no occasion to return the consideration as a condition precedent to maintaining suit.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Moore. This is an action by W. B. Morse against W. FL Odell to recover money.

From Lane: James W. Hamilton, Judge. Statement by Mr. Commissioner Slater. This is a contest over the will of George W. Pickett, wbo died in Lane County, November 22, 1902. What purports to be his last will and testament was admitted to probate in that county four days after his death, and letters testamentary were issued to S. B. Ealrin, the executor mentioned therein.

From Douglas: James W. Hamilton, Judge. Suit for a divorce by Eva Galigher against John D. Galigher, with a cross bill by defendant asking affirmative relief. There was a decree for plaintiff from which defendant appeals.

Prom Malheur: George E. Davis, Judge. Suit by J. H. Seaweard and another against the Pacific Livestock Co. and others to enjoin interference with the flow of water in a certain stream. Prom the decree adjudging the rights of the parties in the stream, plaintiff and defendant Pacific Livestock Co. appeal.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Commissioner King. This is an «action by Alfred Wollenberg against S. K. Sykes on an undertaking executed by J. W. Knapp, as principal, and defendant Sykes, as surety.

From Lane: James W. Hamilton, Judge. Statement by Mr. Justice Eakin. This is a suit by Etha Christian, for whom was substituted ,7. 1Y. Christian, her executor, against the City of Eugene and another as street commissioner thereof to enjoin the defendants from opening as a street what is claimed by the defendants to be a part of Twelfth Street in Christian’s Addition to the City of Eugene.

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This action was commenced May 19, 1905, to recover money. The complaint states that on April 11, 1905, the defendant, B. A. Preston, ordered from the plaintiff, I. Freeman, a cash register, agreeing to give therefor $305, paying at that time $10, and stipulating to pay a like sum on the eleventh of each month thereafter until the purchase price was fully discharged; that it was also agreed that if default should be made in the payment of any installment as it matured, the remainder of the consideration should at once become due and payable, and the sale of the register absolute; that the plaintifE delivered the register to the defendant who paid on account thereof the sum of $10 only, but on May 11, 1905, when the second installment matured, he, upon a demand therefor, refused to juty any part thereof, whereupon the remainder immediately became due and payable, and judgment is demanded therefor. The cause was tried October 20, 1905, without the intervention of a juiy, and findings of fact and of law were made in accordance with the averments of the complaint, and judgment having been rendered thereon against the defendant for the sum of $295, he appeals.</p>

From Douglas: James W. Hamilton, Judge. Statement by Mr. Commissioner Slater.

From Marion: William Galloway, Judge. Suit for reformation of a written instrument and specific performance of it when reformed. Plaintiffs appeal from the decree dismissing the complaint.

From Douglas: Lawrence T. Harris, Judge. Statement by Mr. Commissioner King. This is an action on a promissory note brought by Ada, Marie and Bessie Cellers against E. L. Meachem and Joseph Lyons. The note was executed December 27, 1904, and runs “90 days after date, without grace, we promise to pay,” etc., and is signed by Meachem and by Lyons, with the word “surety” added to tile name of the latter. The complaint is in the usual form.

From Coos: James W. Hamilton, Judge. Action by W. E. Baines (W. U. Douglas, administrator, substituted) against the Coos Bay, Boseburg & Eastern Railroad & Navigation Co. and others. Judgment for plaintiff, and defendant railroad and navigation company appeals..

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Ciiiee Justice Bean. This is an action against E. C. De Armond, B. L. De Armond, Hugh De Armond, and C. E. MeOlane,'alleged to be partners, doing business under the firm name and style of E. C. De Armond & Sons, to recover damages for a personal injury.

From Clackamas: Tiiomas A. McBride, Judge. Statement by Mr. Chief Justice Bean. This is an action to recover damages caused by the steamship Almond Branch fouling the Morrison Street Bridge.

<p>From Marion: George H. Burnett, Judge.</p> <p>Action by Charles Scott, executor of R. H. Scott, deceased, against M. Christenson and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Forgery as Ground for Disbarment "of Attorney.</p> <p>An attorney who has forged applications to purchase state lands, has signed fictitious names to assignments of applications, and attached thereto false notarial certificates, is guilty of willful misconduct in his profession, and should be permanently disbarred, and his low estimate of professional integrity is further emphasized by a plea that he believed that the application and affidavits thereto were antiquated matters of form not binding on account of long disregard by school boards, and that he believed that he was doing the state a favor in assisting it to dispose of its lands.</p>

<p>From Josephine: Hiero K. Hanna, Judge.</p> <p>This is an action by George R. Riddle, as guardian of a minor, against the Order oí Pendo, a private corporation of California. A motion to quash the service of summons having been sustained, plaintiff appeals. The ease was ■ submitted on briefs under the proviso of Rule 16: 35 Or. 587, 600.</p>

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>On April 21, 1904, Charles Y. Houghton was sentenced to the penitentiary for the term of five years for the crime of robbery. On March 15, 1906, the Governor commuted his sentence to expire on the 18th of the month, on the following condition:</p> <p>"'It is understood, however, between the executive and the said Chas. Houghton, and this commutation is delivered to and accepted by him upon this distinct agreement, that said Chas. Houghton is to ~be and remain a law-abiding citizen, and in case he violates any of the laws of the United States or of the state, or of any municipality in which he lives, the Governor of the state, whoever he 'may be, whenever he is satisfied, by sucb investigation as he may see fit to make, that said Chas. Houghton has violated bis agreement or any of the conditions of this commutation, he may revoke the same without notice, and without the intervention of any court, by direction to any officer of the penitentiary or any sheriff of any county, cause the said Chas. Houghton to be arrested and returned to the penitentiary of the State of Oregon to serve the unexpired and unserved portion of his sentence, and this commutation is delivered with this distinct understanding and agreement.”</p> <p>The commutation was accepted by Houghton, and in pursuance thereof he was discharged from custody and remained at large until the 28th of December, 1906, when he was rearrested by the superintendent of the penitentiary by virtue of an order or warrant of the Governor, which, after stating the granting of the commutation and the condition thereof, proceeded:</p> <p>“Whereas I have satisfied myself by investigation entirely satisfactory to me that said Charles Houghton has violated the terms of his agreement, in this: that he has been since his release convicted of the crime of larceny in Multnomah County, Oregon, and has been arrested for violating the ordinances of the City of Portland: Now, therefore, I do hereby revoke the said commutation and do order and direct that you arrest the said Charles Houghton and return him to the penitentiary of the State of Oregon, there to serve the unexpired portion of his sentence.”</p> <p>Houghton thereupon instituted proceedings in habeas corpus, claiming that his imprisonment is irregular and void on the following grounds: (1) That the Governor has no authority under the constitution or laws of this state to grant conditional commutations or pardons, and therefore the condition included in the commutation issued to the petitioner was void and the pardon absolute; (2) that, if the Governor has authority to grant conditional pardons or commutations, it is a judicial and not an executive question whether the prisoner has violated such conditions and thereby forfeited his liberty. The writ was denied, and the petitioner remanded to the custody of the superintendent of the penitentiary, and he appeals.</p>

<p>Boundaries — Nature of Surveyor's Evidence.</p> <p>1. In testifying as to the location of points in public surveys, it must be remembered that surveyors are only witnesses, and they should confine their testimony to what acts they performed, leaving the conclusion as to-the location of the point to the jury, and the court can determine, as a matter of law, whether they have pursued the correct method in the survey.</p> <p>Boundaries — Manner of Locating Corners.</p> <p>2. Where, on an issue as to the location, on the ground of the boundaries of a tract of tide lands, the description in the deed called for a place of beginning a certain number of chains northward from a “post at angle in meander line” and it was then stated that the post was a certain number of chains north from a certain corner of “lot No. 2 in section 26,” etc., the proper method was to find the angle post, and, if lost or obliterated, to find it from some known corner and not to fix a starting point according to the number of chains mentioned from the corner of the lot.</p> <p>Boundaries — Calls Control Meander Line.</p> <p>3. A deed of tide land by the state described by metes and bounds conveys the territory within the calls, which are not controlled by the meander lines of the original United States survey, though one of the calls is "thence along the meander line,” it being presumed that the line thus referred to means the actual high water mark, rather than the line •of the government survey.</p> <p>Boundaries — Purpose of Meander Lines.</p> <p>4. In surveying fractions of government land adjoining navigable waters, the meander line is not intended to mark tne boundary, but only to. indicate the winding lines of the banks.</p> <p>Adverse Possession — Sufficiency of Evidence.</p> <p>5. Adverse possession of tide land improved only by some scattered piling is not established by the payment of taxes, and the occasional receipt of rent for tying scows and other floating craft to the piling.</p> <p>Maps as Evidence.</p> <p>6. A map made from miscellaneous sources of information, without an actual survey on the ground, is not competetnt evidence of the location of objects or of the distances shown thereon.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Commissioner Slater. Tins is a suit for specific performance by the Portland Iron Works against C. W. Willett. Plaintiff is a corporation engaged in devising, manufacturing and selling machinery, particularly for sawmills, and has its construction works or machine shops at Portland,' Oregon.

From Malheur: George E. Davis, Judge. Statement by Mr. Justice Hailey. The defendant Holiver Megorden was indicted in September, 1905, by the grand jury of Malheur County, Oregon, charged with the crime of murder in the first degree, in shooting and killing his wife, Mary Megorden, on March 28, 1905.

From Multnomah; Arthur L. Frazer, Judge. Statement by Mr. Commissioner Slater. This is an action by W. G. Fischer against the G. W. Cone Lumber Co. for damages under the statute for rendering difficult, uncertain or impossible of identification 431 saw logs containing about 178,000 feet of lumber and 25 boom sticks, which it is alleged were subject to laborers’ liens. The complaint contains 10 separate but similar causes of action, of which only the first will be noticed.

From Multnomah: Melvin C. George, Judge. Statement by Mr. Justice Moore. This is an application by executors to devote money to the payment of debts of a decedent’s estate, and involves the construction of a will.

From Umatilla: William Smith, Judge. James MacElrath was convicted of selling intoxicating liquors contrary to the provisions of the local option law, and appeals. The case was submitted on briefs under the proviso of Rule 1G: 3o Or. 587/ 600. For appellant there was a brief over the name of Winter & Collier. For the State there was a brief over the names of O. W. . 1'helps, District Attorney, and John McCourt.

From Marion: Robert Galloway, Judge. E. E. Nichols was convicted of vagrancy, etc., in the Municipal Court of the City of Salem. From a judgment of the circuit court affirming a judgment of the municipal court, he appeals.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Justice Eakin. _ This is a suit to quiet title brought by S. N. Ayers and others against O. O. Lund. Elizabeth Ayers, through whom the plaintiffs claim, was the owner of the property in question during the year 1898, and it was assessed to her for taxation for that year.

From Tillamook: George H. Burnett, Judge. Statement by Mr. Justice Eakin. This is a suit by Tillamook County against the Wilson River Road Co. to cancel and annul an agreement or lease between the plaintiff and defendant. There was decree for defendant, and plaintiff appeals.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Commissioner Slater. This is an appeal from the ruling of the circuit court on a petition to review the judgment of a justice’s court dismissing an action brought by V. F. Mulkey against G. L. Day and his wife. The complaint was filed in the justice’s court on Juné 5, and summons was thereupon issued and served on the 6th.

<p>Jurisdiction to Enjoin Enforcement of Award Based on Fraud.</p> <p>1. An award based on the fraud or perjury of the prevailing party will be set aside in equity and its enforcement permanently enjoined, a distinction being recognized between the dignity of a judgment and an award: Friese v. Hummel, 26 Or. 145, distinguished.</p> <p>Arbitration and Award — Evidence of Fraud.</p> <p>2. The evidence shows that the successful party to the arbitration in question presented to the arbitrators evidence that he knew to be false and that materially affected the award.</p>

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Justice Eakin. This is a proceeding by Bridget and Peter Grant against the Oregon Railroad & Navigation Co. to quiet title to the property lying between plaintiff’s lot and deep water, and to enjoin defendants from driving piles thereon. There was a decree for the plaintiff, and the defendants, Oregon Railroad & Navigation Co. and D. H. Welch, appeal.

From Josephine: Hieko K. Hanna, Judge. Statement by Mr. Commissioner Slater. This is a suit by Willis Kramer against H. L. Wilson and others filed as an answer to an action at law brought by Wilson against Kramer. On July 18, 1904, W. G. Palmer and his wife conveyed to plaintiff, by deed absolute in form, 11 quartz mining claims in Josephine County, together with a mill site and ditch with tvater rights. The consideration expressed* in the deed is the sum of $30,000.

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chide Justice Bean.</p> <p>This is a suit by Mary J. Lambert against Della Howard to determine an adverse claim to real property. The plaintiff alleges that the land in controversy is unoccupied, that she is owner in fee thereof, and that defendant claims some estate-or interest therein adverse to her, but that such claim is without right or validity, and prays that defendant be required to set forth the nature of her claim, etc. The defendant denies each and every material allegation of the complaint, and for an affirmative defense, alleges that on June 14, 1892, the plaintiff, being the owner of the premises in controversy, mortgaged the same to one Win. Irwin to secure the payment of the sum of $223.50 and interest; that thereafter plaintiff, without paying any part of the debt, removed from the state, and, before doing so, directed Irwin to assume possession of the mortgaged premises in payment of her debt; that accordingly Irwin went into possession about September 1, 1893, and so continued, under a claim of ownership, until February 28, 1902, when he sold and conveyed by warranty deed to defendant, who immediately went into possession, claiming to be the owner, and has ever since remained in possession; that plaintiff has not been seised or possessed of the property for more than 10 years prior to the commencement of this suit. The answer also sets up title through an alleged sale for delinquent taxes, but as such title is not relied upon by the defendant it need not further be alluded to. The averments of the answer were put in issue by the reply, and a trial had, resulting in a decree dismissing the suit on the ground that defendant is in the position of a mortgagee in possession and entitled to retain such possession until the mortgage debt is paid. From this decree plaintiff appeals. ,</p>

From Multnomah: John B. Cleland, Judge. This is a suit by Multnomah County. against the Portland Cracker Company. Defendant is a corporation, and in 1897 was the owner of personal property in Multnomah County, on which for that year a tax amounting to $884 was assessed and levied. The tax roll which exhibited this tax was placed in the hands of the sheriff for collection of the taxes as required by law.

<p>Intoxicating Liquors — Construction of Local Option Law as to Elections in an Entire County.</p> <p>1. Section 10 of the local option law of 1905 (Laws 1905, pp. 41, 47), providing that a petition for an election in any county shall be effective as a petition for an election in each individual precinct in such counts', and the county court shall issue an order of prohibition for each and every precinct in the county voting for prohibition, though the counts’ as a whole votes against prohibition, means that the vote in each precinct, though cast in an election throughout the county, stands as a vote on the liquor question in that precinct without regard to the rest of the county, as well as a part of the vote on prohibition in the county at large, and is constitutional and valid.</p> <p>Intoxicating Liquors — Crimes—Amendment op City Charters.</p> <p>2. The local option act of 1905, where it provides for prohibiting the selling of liquor and punishing those who do sell in violation of the order of the county court, is a general criminal statute, and therefore within the exception to Section 2 of Article XI of the Constitution of Oregon, as amended in 1906. Since that amendment cities, though having the right to enact and amend their own charters, are still subject to the prohibition order of the county court, and can neither enact nor amend so as to escape the effect of such an order.</p> <p>Intoxicating Liquors — Effect of Country Vote on Sales in Cities.</p> <p>3. A vote for prohibition in any subdivision of territory provided by statute controls throughout that entire district, regardless of the boundaries or regulations of smaller divisions that may be included therein; for instance, a prohibition vote in a precinct that includes an incorporated town is controlling on such town.</p> <p>Intoxicating Liquors — Effect of Vote for Prohibition on Charter Provisions Authorizing Issuance of Licenses.</p> <p>4. The effect of Section 12, of the local option law of 1905, providing that if the election goes dry no election on that subject shall be held again in that district within two years, is simply to modify the charters of cities within the district which have provisions authorizing the licensing and regulating of sales of liquor so long as the dry spell continues. It does not suspend the charters, but puts a limitation for an indefinite period on certain of their provisions.</p> <p>Intoxicating Liquors — Construction of Local Option Act Where Prohibition Prevails Wholly or Partially.</p> <p>.5, Under Section 8 of the local option law (Laws 1905 c. 2, pp. 41, 45), prescribing the form of ballot for a local option election for an entire county as well as for subdivisions thereof, and Section 10, providing that where a majority of the votes in the county as a whole or in any sub'division ’thereof are for prohibition the court shall make an order prohibiting the sale of liquors therein, etc., if prohibition, is adopted by a county as a whole, it must be applied to the entire county though a precinct therein voted against prohibition, and if prohibition is rejected by a county as a whole, still it must be applied to a precinct therein adopting prohibition.</p>

From Washington: Thomas A. McBride, Judge. Statement by Mr. Justice Moore. This is an action by Della B. Keen against Susan Keen to recover damages.

<p>From Marion: William Galloway, Judge.</p> <p>Suit by Charles Le Brun against Firmin Le Brun to cancel a deed. Plaintiff appeals from a decree dismissing the suit.</p>

<p>Corporations — Right to Question Legality op.</p> <p>1. The/ legality of the organization and existence of a de facto corporation that has exercised corporate powers can be questioned only by tlie state, and cannot be questioned collaterally in a suit between priyate parties.</p> <p>Corporations — Limit op Right op Creditor to Question Proceedings by Directors por Their Own Benefit.</p> <p>2. The rule of law which disqualifies a director from binding a corporation by a transaction in which he has an adverse interest is for the protection of the corporation and its stockholders, as are the provisions of law and the by-laws of the company relative to meetings of directors, quorums, etc., and they cannot be invoked by any one else, since such transactions are merely voidable, and not void. An attack by a creditor on proceedings by which the directors have profited must always be on the ground of fraud, and that only.</p> <p>Same — Case Under Consideration.</p> <p>3. In a suit to foreclose two mortgages against a corporation, a creditor who acquired a judgment lien on the mortgaged property subsequent to the recording of the mortgages was made a defendant. Plaintiff, as one of the directors of defendant corporation, had acted to make a quorum in authorizing the execution of the notes and mortgages which were duly executed by the president and secretary. One of the loans had been made from plaintiff, and the other from a bank which afterward assigned its interest to plaintiff. The defendant corporation made no repudiation of the transaction and did not answer, but the judgment creditor, in addition to a general denial, alleged that the defendant corporation was not duly organized, that the alleged president and secretary had no authority to bind it by the notes and mortgages, and that their acts were not authorized; but there was no averment or evidence that the obligations were not made In good faith to secure money actually loaned to the corporation and used by it in the prosecution of its enterprise. Held, that the validity of the obligations could not be questioned by the judgment creditor.</p> <p>Evidence — Presumptions op Continuance op Ownership.</p> <p>4. In a suit to foreclose a note and mortgage, where the mortgagor testified that the mortgage to plaintiff had never been paid or discharged, the presumption is that plaintiff continued to be the owner thereof. Principal and Surety — Rights of Surety' as to Principal — RiAht After Payment' — Reimbursement and Subrogation.</p> <p>5. Where the plaintiff had been a surety on a note, but subsequently bought it, the assignment to him was not a discharge of the note, but entitled him to be subrogated to the rights of the creditor against his principal, and to foreclose a mortgage given to secure the note.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Statement by Mr. Commissioner Slater.</p> <p>This is an action by Julia E. Hoffman, as executrix, on a promissory note made by E. H. Habighorst and 14 others, of date February 29, 1892, for the principal sum of $15,000, payable one year after date, with interest at 8 per cent per annum, to the order of Mrs. Sarah Wertheimer, who, on or about August 29, 1895, sold and transferred it to the plaintiff. It is claimed by the defendants that the note in suit was given without any valuable consideration coniing to them, but was made at the request of-the Portland Guarantee Company, a corporation, to be used by it as collateral security in borrowing that amount of money from Mrs. Wertheimer, and that she, with knowledge of that relationship and without their consent, by a valid agreement, extended the time of payment to the Guarantee Company, and thereby released them; that at the same time, as a consideration for the contract extending the time, she received from said company security for the payment of said debt, which she after-wards surrendered and released without defendants’ consent; and that thereby they were also released. This is the second appeal of this case. On the first appeal a judgment in plaintiff’s favor was reversed for error in sustaining a demurrer to the answer. The case is reported in 38 Or. 261 (63 Pac. 610: 53 L. E. A. 908), to which reference may be made for the allegations of the complaint and answer. After the cause was remanded the plaintiff replied, denj’ing all of the allegations of the answer. A trial was had, and at the close of the taking of testimony all of the defendants moved the court for a directed verdict in their favor, which being denied, all of them, excepting Habighorst, made a similar motion, which was also denied. Thereupon plaintiff moved for a directed verdict in her favor for the amount of the note, and the same was allowed and judgment thereon was afterwards awarded, from which the defendants again appeal, assigning as error the overruling of their motions for a directed verdict as well as the allowance of plaintiff’s motion. Numerous other assignments of error on "rejection and admission of testimony are made. "</p>

From Clackamas: Thomas A. McBride, Judge. Statement Per Curiam. This is an action by A. E. Latourette, “trustee,” against H. H. Johnson, Henry Meldrum, Thomas Charman and J. T. Apperson to recover the amount of a promissory note executed by the defendants to the plaintiff November 29, 1896, for the sum of $2,707, payable in six months, with interest from date until paid at the rate of 10 per cent per annum.

<p>From Grant: George E. Davis, Judge.</p> <p>Pat Connolly was convicted of a misdemeanor in a justice’s court and appealed to the circuit court, where the appeal was dismissed. He now further appeals to this court.</p>

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Eakin. This is a proceeding by mandamus brought by Thor C: Lands-wick against Harry Lane, mayor of Portland, and the members of the Civil Service Commission. A demurrer to the alternative writ was sustained, and the proceeding dismissed, from which the plaintiff appeals. The writ shows that C. H. McNemee and Geo.

<p>From Baker: William Smith, Judge.</p> <p>Suit by the Sumpter Valley Railway Co. against Charles and Alice Gardner for an injunction, in which it was successful, and defendants appeal.</p>

From Marion: William Galloway, Judge. Suit by Willis Kramer and others against Canfield Marsh and others. From a decree dismissing the suit as against plaintiffs, they appeal. On motion to dismiss.

From Union: Bobert Eakin, Judge. Statement by Mr. Commissioner Slater.

<p>From Baker: Bobert Eakin, Judge.</p> <p>. Statement by Mr. Chibe Justice Bean.</p> <p>This is an action by A. J. Taylor against H. K. Brown and J. B. Snow to recover possession of certain well-boring machinery of the alleged value of $2,000. The complaint sets up title and right to possession in the plaintiff, wrongful and unlawful detention by the defendants, and a demand and refusal. The answer is a mere denial of the averments of the complaint. The plaintiff, to sustain the issue on his part, gave evidence tending to show that on January 9, 1902, one Chas. Frederick, being the owner of the property in question, in the State of Washington, executed and delivered to him a bill of sale therefor to secure the payment of a promissory note for $1,082.32, due 12 months after date; that the bill of sale was duly recorded in the State of Washington, and plaintiff took immediate possession of the property. Thereafter Frederick, by the permission and consent of the plaintiff, operated the property, but was assisted by the plaintiff’s son, who acted as his agent, and whose consent was necessary to* its removal by Frederick from place to place. In November, 1904, the property was, by plaintiff’s consent, brought into Oregon by Frederick for operation near Baker City, the plaintiff’s son accompanying it to assist in its operation and to look after and protect his father’s interest. While the property was thus being operated, it was seized by the defendants, as sheriff and deputy sheriff, under a writ of attachment in an action brought by one Schumaker against Frederick. The court below refused to admit evidence of the attachment proceedings because not pleaded, and ruled that the bill of sale from. Fred-, eriek to the plaintiff, while good between the parties, was not sufficient evidence of title in plaintiff to enable him to maintain this action, and instructed the jury that, unless they found from the testimony that plaintiff was in the actual possession of the property at the time of its seizure by the defendants, their verdict must be for defendants. The jury returned a verdict in favor of the plaintiff, and from a judgment rendered therein the defendants appeal. The case was submitted on briefs under the proviso of Rule 16: 35 Or. 587, 600.</p>

<p>Miners' Liens — Recording op Lease in Mining Records.</p> <p>1. Any book kept by the proper officer as párt of the records of his office, in which are recorded instruments affecting mines, is a book of “mining records” under Section 5668, B. & C. Comp., providing that miners’ liens shall not attach to the interest of the owner if the work was done for a lessee whose lease was recorded in the “mining records” of the county before the work began.</p> <p>Recording Instruments in Designated Books.</p> <p>2. If no particular book is designated in which an instrument must bo recorded, it will be sufficient to record it in any book kept by the recording officer for that purpose.</p>

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by Mr. Commissioner Slater.

From Umatilla: William R. Ellis, Judge. Statement by Mr. Commissioner King. This is a suit in equity brought by Peter West against the Washington & Columbia River Railway Co. for the specific performance of a lease with an option to purchase lots 1, 7 and 8, of block 74, in Reservation Addition to Pendleton, Oregon.

From Union. Bobert Eakin, Judge. Statement by Mr. Commissioner King. This was a proceeding in the County Court of Union County, Oregon, for the purpose of proving an alleged lost will of Ferena Miller, who died in that county November 19, 1900.

<p>Mortgages — Redemption—Effect.</p> <p>A' senior mortgagee in a suit to foreclose his mortgage joined a junior mortgagee as a defendant, and the decree in terms foreclosed all title and estate of the defendants. The property was sold under the decree, and the junior mortgagee purchased, and the senior mortgagee, having succeeded to the interest of the mortgagor, redeemed from the sale. Held, that the redemption by the first mortgagee abrogated the sale of the premises,- and restored to him, as the successor in interest of the mortgagor, the estate in the land as if the first mortgage had not been given, and the land was subject to the lien of the second mortgage.</p>

<p>From Morrow: William E. Ellis, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is an action by D. E. Gilman against Emmett Cochran to 'recover upon a promissory note by an indorsee taking the same after maturity. The note was payable to Frank McFarland July 1, 1894, upon which plaintiff claims that a payment of $20 was made in June, 1900. The payment is denied by the answer, but the execution of the note and that it has not been paid are admitted. An affirmative defense is set up, to the effect that the note was given in consideration of a debt of $169.30, and that an additional sum of $500 was included in it to secure the payee for future advances, which the payee agreed to make, but that he thereafter refused to make any advances. Defendant claims that he was damaged in the sum of $1,000 by reason of such refusal, and he pleads the same as a set-off against the note. As a second affirmative defense he pleads the statute of limitations against the note. The cause was tried by a jury and a verdict rendered for defendant, from which judgment plaintiff appeals.</p>

From Union: William Smith, Judge. Statement by Mr. Chief Justice Bean. This is an action by Eliza Carroll, administratrix, against tbe Grande Bonde Electric Co. On August 28, 1905, Leonard Carroll was killed by an electric wire belonging to defendant company. The administratrix of his estate brought an action to recover damages on account of his death, alleging that it was caused by the negligence of defendant.

<p>From Wasco: William L. Bradshaw, Judge.</p> <p>Suit by Patrick Fagan against W. N. Wiley, resulting in a decree as prayed for, from which defendant appeals.</p>

From Wallowa: Bobert Eakin, Judge. Statement by Mr. Chief Justice Bean.

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by Mr. Justice Eakin. This is a suit by George H. Williams and others against the Commercial National Bank of Portland and Wells, Fargo & Co. (in which H. C. Leonard intervenes), to collect from defendant Wells, Fargo & Co., hereafter referred to as defendant company, judgments rendered in favor of plaintiffs severally against defendant the Commercial National Bank.

<p>Railroads — Liability for Fires Resulting From Defective Appliances or Negligent Operation.</p> <p>1. To charge a railroad company for injury resulting from a fire caused by sparks from a locomotive that was either improperly constructed or negligently operated, the charge must be proved as laid.</p> <p>Railroads — Pire From Debris on Right of Wat.</p> <p>2. Where a claim against a railroad company is made for damages resulting from a fire originating in combustible material accumulated on the right of way, it is only necessary to show- that the fire started as claimed, and the company will be liable, though it was supplied with the best of locomotives and the most approved appliances for preventing the emission of sparks, and though the same were operated by the most skilled engineers.</p> <p>Railroads — Pires—Evidence of Negligence.</p> <p>3. The evidence of plaintiff makes at least a prima facie case of negligence on the part of the defendant' railroad company in allowing combustible material to accumulate on its right of way.</p> <p>Same.</p> <p>4. The evidence of plaintiff justifies an' inference that the fire in question started from sparks dropped by one of defendant’s locomotives into combustible material negligently allowed to accumulate on defendant’s right of ’way, and escaped therefrom to plaintiff’s property, destroying it.</p> <p>Railroads — -Evidence of Fires Prom Other Engines.</p> <p>5. In actions for damages resulting from fires caused by passing engines, it may be shown that other fires were caused by locomotives of defendant at various times in the same vicinity.</p> <p>Railroads — Fires by Engines — Contributory Negligence.</p> <p>fi. One who is in a position to prevent any danger from fire set by sparks from a locomotive without incurring unusual danger, and who makes no effort to” do so, is guilty of negligence precluding a recovery.</p> <p>Contributory Negligence of Servant — When Imputable to Master.</p> <p>• 7. An employee, engaged with reference to the care or management of any property threatened with destruction by fire set by sparks from a locomotive, must malee reasonable effort to avert the injury, and the neglect of the employee is the neglect of the owner precluding a recovery.</p> <p>Railroads — Evidence of Fires Not Connected With Defendant.</p> <p>- S. In an action against a railway company for a fire set by sparks from a locomotive, it is error to permit a witness to testify that he had seen fires along the company’s right of way, unless the testimony connects the fires with the operation of the road by the company.</p>

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Justice Moore. This is a suit by the Acm© Dairy Co. against the City of Astoria and another to enjoin the execution of a contract, to set aside a special assessment and to have an ordinance declared void.

Prom Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Moore. Held: the ballots cast thereat were canvassed, and an abstract thereof made, which purports to show that there were polled 2,276 votes in favor of prohibition and 2,048 against'the measure; and that the defendants, as the County Court of Lane County, threaten and will, unless restrained, make an order declaring the pretended result of the…

From'Multnomah: Calvin TJ. Gantenbein, Judge. Statement by Mr. Justice Eakin. Judgment was rendered upon a demurrer to the writ of mandamus, and defendant appeals.

<p>Bills and Notes — Effect of Signing as “Trustee."</p> <p>1. The personal liability of the signer of a promissory note is not affected by the addition of the word “trustee,” after his name.</p> <p>Notes — Trustee—tCircumstances as Notice.</p> <p>2. A person who learns of unusual circumstances connected with a</p> <p>transaction in which he is about to become interested, or of such facts as would put a person of ordinary prudence upon inquiry, as, that a note is payable to the payee, “trustee,” or that a title is held by a person “trustee,” is bound thereby to a knowledge of what could have been discovered by investigation. '</p> <p>Effect of Word “Trustee” in Writing.</p> <p>3. The appearance of the word “trustee,” added to a payee’s name in a note, or to a grantee’s name in a deed or mortgage, or in connection with the name of a party to a written instrument, is sufficient to put persons dealing with such trustee upon Inquiry, and, in the absence of inquiry, they will be presumed to have known what they might have discovered.</p> <p>A landowner being heavily indebted at a high rate of interest, solicited a broker to procure the money on more advantageous terms, which he did by interesting several friends in varying amounts. The debtor then executed to the broker, “trustee” notes for the respective friends, and the notes were indorsed and guaranteed by the broker, “trustee.” The original note and mortgage were assigned to the broker, “trustee,” it being considered as the security for the series of notes made for the new lenders. Helclj that the friends were put upon inquii'y as to the conditions of the transaction, and were bound to know all that they might have discovered about the payments of the borrower and what was being done with the money, since the appearance of the word “trustee” impliul that the broker was not acting for himself.</p> <p>Agency — Limitation of Right of Ratification.</p> <p>4. The right of a principal to ratify unauthorized acts of his agent is subject to the limitation that he must ratify the act entirely or dis-affirm it — he cannot accept the benefits and repudiate the obligations. •</p> <p>Where an agent held possession of the security for a series of notes owned by different persons, and received for them both interest and partial payments, they cannot recognize his authority for the purpose of such collections as they received and deny it as to other payments which he retained and converted.</p> <p>Agency — Duty to Trace Application of Payment. ’</p> <p>5. One who pays his obligation to an agent of the payee having the evidence of the debt in his possession is not ur^der obligation to see that the payment reaches the creditor, though that may not be the case where the payment is made to the payee after he has sold and delivered the obligation and does not produce it when payment is tendered: Bamberger v. Geiser, 24 Or. 307, distinguished.</p> <p>Agency — Ter'mination of by Insolvency.</p> <p>6. An agency may be presumed to continue until it is shown to have been terminated, but it will cease without any definite act of the principal upon the general knowledge of his insolvency.</p> <p>Agency — Case Under Consideration.</p> <p>7. Defendants, who had had a debt of $28,000 evidenced by a note secured by mortgages, applied to W. to furnish money to pay the indebtedness and take an assignment of the note and mortgages. W. secured the money from plaintiff and others, and assigned to them notes made by the defendant «and payable to him as trustee and secured by the original note and mortgages. He held the original notes and security and all the other notes except those of plaintiff and S. He received payments sufficient to pay all the notes, but did not credit them off the notes of plaintiff and S., or pay the money to them. He continued under the trust without his right being questioned until he became insolvent. Held, that W. was the agent of plaintiff and S., with full authority to collect the sums represented by the notes, and so collected the money which was paid to him in trust for their benefit with their full knowledge and assent, and that, sufficient having been paid to him in that capacity to cancel the principal and interest of all the notes given, they, together with the mortgages, should be canceled.</p> <p>Evidence — Contemporaneousness Not Determined by Dates.</p> <p>8. Papers relating to a stated transaction are all to be considered together, and the dates are not controlling.</p> <p>Validity of Guarantee by Agent to Principal.</p> <p>9. An agent may lawfully guarantee to his principal the payment of obligations that he has taken in the course of his agency proceedings.</p> <p>Principal and Agent — Right of Ratification.</p> <p>10. The principal must adopt or reject the unauthorized acts of his agent as an entirety.</p> <p>Executed Contracts — Statute of Frauds.</p> <p>11. Agreements either oral, or partly written, are binding on the parties and not subject to the statute of frauds, after being executed.</p> <p>Books of trustee as Evidence.</p> <p>12. The books of account kept by a trustee are admissible against his principal to show admissions against interest, as, the amounts of moniy received for the benefit of his principal, and also to show disbursements made within the scope of his authority.</p> <p>Trustee — Illustration of Improper Disbursement.</p> <p>13. An agent having authority to collect a large note accepted a farm for a stated amount and entered it as cash in his agency account, after which he loaned it without authority to the debtors. Held, that the debtors are entitled to credit for the amount paid, the question of its disbursement being entirely between the agent and his principal.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Commissioner Slater. The Boring Junction Lumber Co., as the assignee of O. A. Palmer, sues J. W. Roots to recover damages for breach of a contract made by defendant with Palmer for the sale of saw timber on the N. -J of the N. E. -J of section 1 township 2 S., range 3 E., and on other lands adjacent, all in Clackamas County,, with the right to remove the same within one year from June 28, 1902, the date of the contract.

<p>Appealed from Columbia County.</p> <p>Action by E. L. Davidson against the Columbia Timber Co., in which, defendant appealed. Respondent now moves to dismiss the appeal.</p>

From Douglas. James W. Hamilton, Judge. Statement by Mr. Chief Justice Bean. This is a proceeding to establish and probate a lost will. In the spring of 1900 J. J. McCoy made and executed in due form of law Ms last will and testament. He died on the 9th of January, 1904, leaving real and personal property of the probable value of $3,000.

<p>GmjrierS' — -Duty to Person Voluntarily Carried — Pares.</p> <p>1. fpne not a common carrier who voluntarily undertakes to transport another is responsible for injury to him resulting from negligence, whether the service was for a compensation or gratuitous. ^</p> <p>Carriers — Implied Authority of Trainmen.</p> <p>2. /Employees operating transportation appliances, such as engineers or conductors, cannot by virtue of their employment impose the liability of a carrier on their employer by permitting strangers to ride on their conveyances, 'o</p> <p>Carriers — Evidence of Custom to Carry Passengers.</p> <p>3. /Testimony that the operating employees of a logging road using engine and trucks, and not engaged at all in the passenger business, were in the habit of permitting persons to ride thereon from point to point, and that such practice was open, long continued and notorious, and was within the actual knowledge of .the manager, reasonably tends to show that the owner of the road expressly or impliedly consented to allowing persons to be so carried, thereby establishing the relation of passenger and carrier1 as to any person so carried. J></p> <p>Carriers — Contributory Negligence by Riding in Exposed Position.</p> <p>4. One riding with the implied consent of a logging company on its logging train, consisting of an engine and a logging truck, is not guilty of contributory negligence per se in riding on the truck, which was the place where persons usually rode.</p> <p>Carriers — Risks Assumed by Passenger.</p> <p>5. One riding on the logging train of a logging' company, with its implied consent, does not assume the risk of collision through its negligence with another of its trains, though he does assume the risks incident to the proper operation of that kind of a train.</p>

From Curry: James W. Hamilton., Judge. Statement by Mr. Justice Bakin. This is a suit by E. B. Burns against Frances M. Kennedy and husband and R. D. Hume to quiet the title to a lot in Gold Beach. There was a decree for plaintiff, and defendant appeals.

Statement by Mr. Cheer Justice Bean. The plaintiff, H. M. Hendershott, brought this suit against H. L. Sagsvold for an accounting and for permission to redeem from a void tax sale. In 1895 the plaintiff was the owner and in possession of-the real property in controversy. It was regularly assessed for state and county taxes that year.

Contempt proceeding initiated in the supreme court for an alleged violation of a decree of a circuit court committed after an appeal had been perfected.

From Multnomah: Arthur L. Frazer, Judge. Action to recover a sum of money for the benefit of a pauper. A demurrer to the complaint was overruled and judgment entered on refusal to further plead, from which defendant appeals.

From Marion: George H. Burnett, Judge. Statement by Mr. Chibe Justice Bean. T. J. Luper appeals from a conviction of perjury. In July, 1906, the defendant commenced a suit for divorce against his wife, Lizzie R. Luper, in Department No. 2 of the circuit court for Marion County, alleging that she deserted him in 1904 without cause or provocation and against his will and consent, and had continued her desertion ever since.

Statement by Mr. Commissioner King. This is a suit to determine the right to the use of the waters of Washington Creek, in Baker County, Oregon,- brought by Mary S. Gardner, Edna V. Stuchell, A. V. Swift, A. B. Swift, and L. L. Swift, against George E. Wright. By stipulation it is agreed that A. Y. Swift has succeeded to all the interests of the other Swifts named, and that he, with Mary S. Gardner and Edna V. Stuchell, are the sole plaintiffs in interest.