Volume 50 — Oregon Reports

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Bean. On October 6, 1906, the District Attorney of the Third Judicial-District filed in the circuit court for Marian County an information charging defendant Henry Carmody with the crime of selling intoxicating liquors.

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Chief Justice Bean. • This is a suit by Jacob Kamm to enjoin Alex and Fred Normand from using the North Fork of Klaskanie Creek for floating saw logs.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Eakin. This is the second appeal in this action, the opinion on the former hearing being reported in 46 Or. 352 (80 Pac. 424). The action was commenced April 10, 1902, by the Pacific Mili Co. Ltd., against Inman, Ponlsen & Co. to recover damages for the breach of a contract. Plaintiff is a Hawaiian corporation and defendant an Oregon corporation engaged in the manufacture of lumber.

From Clackamas: Thomas A. McBride, Judge. Action for personal injuries by H. P. Ridings against Marion County, removed for trial to Clackamas County. Plaintiff recovered a judgment of $1,250, from which defendant appealed.

From Marion: William Galloway, Judge. • Statement by Mr. Justice Eakin; This is a motion to dismiss an appeal. The proceeding was originally commenced by J. K. Sears, a citizen and taxpayer of the State of Oregon, against F. I. Dunbar, who- was the Secretary of State of the State of Oregon from January 9, 1899, to January 14, 1907.

<p>From Coos: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is a suit for an injunction by J. Danly Budd against Stephen G-allier, as sheriff, and W. B. Andrews. On June 15, 1892, W. B. Andrews recovered judgment for $213.40 against W. L. Dysinger in the circuit court'for Lane County. In June. 1902, Dysinger filed his sworn statement or application in the United States Land Office at Boseburg for the purchase of 160 acres of public land in Coos County, under the act of Congress of June 3, 1878 (20 Stat. at Large, p. 89, c. 151: 7 Fed. Stat. Ann. 300: U. S. Comp. St. 1901, p. 1545), known as the timber and stone act. On June 14th following, Andrews caused his judgment to be docketed in the circuit court docket of Lane County, and on July 25th filed a transcript of such entry in the office of the clerk of Coos County, and the same was immediately entered in the proper judgment docket of that county. On August 26, 1902, Dysinger made his final proof, paid the purchase price of the land applied for by him and received from the local land office a receipt or certificate of such payment, and on the same day conveyed the land to the plaintiff by a sufficient warranty deed. On February 27, 1903, Andrews caused execution to issue on the judgment recovered by him against Dysinger and the land in question to be sold thereunder. The plaintiff thereafter commenced' this suit to enjoin the. sheriff from executing a deed to the purchaser at such sale and to remove an alleged cloud on his title caused by Andrews’ judgment. A demurrer to the complaint was sustained and the suit dismissed, and the plaintiff appeals. ,</p>

From Tillamook: William Galloway, Judge. Suit by Editb A. Alderman, as administratrix of tbe estate of H. H. Alderman, deceased, against Tillamook County and others, for an injunction, resulting' in a decree dismissing the complaint on demurrer, from which plaintiff appealed.

From Marion: William Galloway, Judge. Statement by Mr. Chief Justice Bean. On March 26, 1904-, Theodore M. Barr was appointed administrator of the estate of Henry Ollsehlager, deceased, by the county court of Marion County on the petition of Mary 011-schlager, who alleged that she was the widow and only heir at law.

<p>Silence as an Estoppel—Want oe Resulting Injury.</p> <p>1. The mere silence oí a party as to the location of the boundary of his property, or his refusal to state whether or not he has had a map made shorving certain lines as dividing his property from that of his neighbor, does not create an estoppel against his proving the true location of such line.</p> <p>Navigable Waters—Division of Adjoining Frontage.*</p> <p>2. A proper division of water frontage along a navigable stream requires that each owner shall have a proportionate share, and the various rules adopted by different courts have that purpose.</p> <p>Where the shore line is substantially straight and a government pier line has been established in a wide river subject to high tides and having a deep channel for ocean vessels, it will be equitable to divide adjoining frontages by the line from a common line at the shore perpendicular to such pier line.</p> <p>Costs in Equity.</p> <p>8. In equity the costs and disbursements may be apportioned between the parties as the particular circumstances may render appropriate.</p>

- From Multnomah: Alfred F. Sears, Jr., Judge. Action by Mollie Wolf, administratrix of the estate of Isaac Wolf, deceased, against the City & Suburban Eailway Co. Judgment for plaintiff, and deféndant appealed; A motion to dismiss the appeal was overruled, after which the ease was beard on the merits.

From Marion: George H. Burnett, Judge. ' Statement by Mr. Chief Justice Bean. This is an action in trover by J. W. Myer against John J. Roberts and T. A. Livesley for the conversion by defendants of 21,913 pounds of hops alleged to belong to the plaintiff.

From Clackamas: Thomas A. McBride, Judge. . Suit by August Krause against the Oregon Iron & Steel Co., in which the decree of the supreme court was entered in 1904 in the trial court. Defendant moved the circuit court to correct this decree, which that court refused to do, whereupon petitioner appealed. This is the first matter here reported, and the decision of the trial court was affirmed.

Prom Yamhill: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit brought by A. P. Oliver and others against the City of Newberg and others to enjoin the collection of an assessment of the expense of a street improvement upon abutting property. The street improved is known as “First Street, and was originally a county road, laid out by Yamhill County prior to the platting of any part of the City of Newberg and prior to its incorporation.

<p>Oiuminal Law—Map as Evidence.</p> <p>1. A map of premises under consideration, made by a disinterested competent person, is admissible in evidence, though made by one who did not And sundry articles shown to have boon picked up at points marked on the map, where the persons who did And the articles say the map is correct and shows truly the location they refer to in their testimony.</p> <p>Order ok Proof—Rendering Evidence Competent ry Subsequent Testimony.</p> <p>2. Incompetent evidence that is improperly admitted may be made competent by later testimony, and thereby the original error will be corrected, the order of proof being a matter of discretion.</p> <p>Maps Drawn to Illustrate a Theory as Evidence.</p> <p>3. A map on which is correctly delineated the premises referred to is not rendered incompetent because, it has lines and marks intended to illustrate, or support the theory of the party for whom it was made, the difference between the reality and the theory being properly explained.</p> <p>Evidence-Expressing Opinion Instead of Facts.</p> <p>4. It is competent for a qualified witness to express an opinion as to the proper deduction to be drawn from the facts shown in evidence where they are of such a nature that they cannot be clearly placed before a jury disconnected from the conclusion of the witness.</p> <p>A witness, flrst shown to be competent, may state, on a criminal trial, his opinion as to whether a 80-30 rifle would make a hole the size of the hole in a picket from a fence shown him, notwithstanding it was admitted that the shooting was done with a 80-80 rifle, and though the picket and the bullet which struck the complaining witness, but which was mashed and battered, were received in evidence, such testimony not being subject to the objection that the question was one which the jury was as competent as witness to determine.</p> <p>Assault With Intent to Kill—Evidence of Extent of Injury.</p> <p>5. On a trial for assault with intent to kill a physician who attended the injured person may state the nature and extent of his injuries, since such evidence tends to explain the extent and nature of the attack and its purpose.</p> <p>Assault With Intent to Kill—Instruction on Self-Defense.</p> <p>0. On a trial for assault with intent to kill, it appeared that ill feeling had existed between the complaining witness and defendant, and that defendant knew that complaining witness had threatened to take his life and went armed for that purpose ; that defendant, having occasion to call on one who lived beyond complaining witness1 farm, selected a route which took him across complaining witness1 farm, but which route persons living in that vicinity had used without objection, and that defendant carried with him a rifle. Held to warrant a charge that one cannot claim self-defense if he intentionally put himself where he knew he would have to invoke its aid, that if defendant could have avoided any conflict without increasing the danger to himself it was his duty to do so, and that if defendant sought the conflict, and the prosecuting witness showed fight and used a deadly weapon, or did an act in such a way as if about to engage in an affray, he could not invoke the law of self-defense until he had first retreated as far as he could with safety to himself.</p>

From Jackson: Hiero K. Banna, Judge. Statement by Mr. Commissioner Slater. This is a suit by William Scott against John F. White and Benjamin Trowbridge to impress upon certain lands held by defendants a resulting trust, arising out of an alleged joint purchase by plaintiff and defendants of a larger tract, of which the land in question was a part.

From Multnomah: John B. Cleland, Judge.- Statement by Mr. Commissioner King. This is an action by' Thomas C. Dutro against William M. Ladd and others, as executors of the estate of W. S. Ladd, deceased, and another, to recover $5,000 attorney fees alleged to be due plaintiff from defendants for legal services furnished between December 15, 1896, and May 9, 1898.

From Curry: James W. Hamilton. Judge. Statement by Mr. Chief Justice Bean. This is a suit by R. D. Hume against E. B. Burns to enjoin a trespass on real property.

From Multnomah: Alfred F. Sears, Jr., Judge. Statement by Mr. Commissioner Slater. This is a suit by L. E. Loomis against Fred MacFarlane and George L. Colwell to reform a written contract and to enforce it when reformed. For about two years immediately prior to December 1, 1904, defendant MacFarlane had been operating a log boom’ at Ilwaco, State of Washington, where logs were formed into rafts for the purpose of being towed by the owners to Portland in this State.

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is a personal injury action by David Westman against the Wind River Lumber Co. Plaintiff was engaged as oiler in defendant’s sawmill, was caught in the machinery and severely injured. At the time of the accident he was between 15 and 16 years of age. About a year prior to that time he bad worked for defendant for a few months piling slabs and wheeling sawdust, but had nothing to do with tie machinery in the mill. He applied for re-employment two or three weeks before the accident, and wanted $2 a day, but the foreman told him that defendant was not paying “kids” more than $1.75 a day, and if he was satisfied with such wages he could go to work as oiler, and the engineer would show him where the oil can was. He had never worked as oiler in a mill before, and was given no instructions as to his duties or warned of the dangers incident thereto. He oiled the first afternoon and a short time the next morning, when he was ordered to pile slabs, and continued at that work until about a week before the accident, when he was again put to oiling. In the basement of the mill, and 4 or 5 feet from the ground, is a line shaft 2.16 inches in diameter, upon which were several pulleys, from which belts extended to the machinery on the floor above. One of these pulleys was 40 inches in diameter, and 19^ inches from it was a 4-inch belt running from the main shaft to a pulley near the floor above to operate a conveyor for the refuse from the lath sáw. A few inches further along, and 3 or 4 feet above the shaft, was a conveyor box, and beyond that, and 38-J inches from the main pulley, was another pulley on the shaft. A short distance above the main shaft was a tightener frame, with a pulley 20 inches in diameter, used for tightening the belt leading from the main pulley to a bolter saw above. The distance from this tightener frame to the conveyor referred fo was about - 19 inches. A platform upon which the workman stood when oiling the machinery, and especially the tightener pulley, was 28J inches in front of the main shaft and about 3 feet- from the ground. As originally constructed this platform was made of two planks, each 2 inches in diameter, 12 inches wide, and 12 feet long, supported by brackets extending from near-by posts; but the evidence tended to show that at the time of the accident there was but one plank in use and it was unfastened. The oil cup on the tightener pulley was 12 or 14 inches in front of, and about 5 feet 6 inches above, the platform, .and almost, if not quite, directly over the main pulley. On the morning of the accident the foreman told plaintiff that the tightener pulley shaft was a new one, and for him to watch and screw down the oil cup whenever it got hot.</p> <p>Plaintiff testified that, to reach the oil cup, he had to stand on his tiptoes on the board referred to, support himself by holding with one hand to the tightener frame, which was moving back and forward over a space of 5 or 6 inches, thrust his head and shoulders between the tightener frame and the conveyor, and then reach around an 8-inch projecting timber with the other hand to the oil cup. About 10 o’clock that morning, while the mill was in operation, he had occasion to tighten the oil cup; but for some reason it worked hard, and, while he was standing on the platform, as above stated, exerting himself to screw it down, the platform slipped, precipitating him forward into the belts and pulleys, severely injuring him. He brings this action, by his guardian ad litem, to recover damages for the injury so received, alleging that defendant was negligent in not furnishing him a safe place in which to work, in not protecting, guarding or fencing the machinery about which he was to work, in not instructing him how to perform his duties with safety, and in not warning him of the dangers incident to his employment. Defendant denied the negligence charged, and as a defense pleaded assumption of risk and contributory negligence. Plaintiff had verdict and judgment, and defendant appeals.</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Charles W. Walton was convicted under an indictment charging assault and robbery, and appeals.</p>

<p>WAteb CJoubses—Obstbtjction op Flow—Maintenance op Dam.</p> <p>Where complainants and their predecessors in interest for more than 20 years had asserted and exercised a right each year to construct and maintain, whenever necessary, a temporary dam or obstruction in the main channel of a river to divert water into a creek for irrigation purposes, without any intimation from defendants or their predecessors in interest that complainants’ right to maintain the dam was Questioned, complainants acquired a prescriptive right to maintain it, notwithstanding defendants clandestinely and without complainants’ knowledge at various times forcibly destroyed the works so maintained.</p>

From Douglas: Lawrence T. Harris, Judge. Statement by Mr. Commissioner King. This is an action by Robert Hildebrand by his guardian, S. L. Culver, against the United Artisans to recover $1,900, with interest, upon a certificate issued to W. C. Hildebrand, the father of plaintiff, as a member of the order/by which it was agreed to pay the amount demanded in event of his death.

From Multnomah: John B. Cleland, Judge. Suit by Sylvester Farrell against the Port of Columbia and its commissioners to restrain said commissioners’ from proceeding under the act creating said corporation. A demurrer to the complaint was sustained and plaintiff appeals. ‘

From Clatsop: Thomas A. McBride, Judge. Suit by John Watefhouse and George Naboth to restrain Clatsop County and its officers from purchasing a blank assessment roll and extending thereon the assessment and taxes for the year 1907, for the reasons that there is no law authorizing such expense and that plaintiffs’ taxes will be thereby greatly increased 'illegally. A demurrer to the complaint was overruled and a decree entered as prayed.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Moore. ‘ This proceeding in the matter of the Estate of Caroline H. Roach, Deceased, was instituted in the County Court of Multnomah County by Eva M. Roach and others, legatees, to compel James Humphrey, an executor, to render a final account.

From Multuomah: John B. Cleland, Judge. Suit to set aside a deed, resulting in a decree for defendant, from which this appeal is taken.

From Grant: George E. Davis, Judge. ■ 'Statement by Mr. Commissioner Slater. This is an action for malicious prosecution by H. N. Putnam against J. L. Stalker. On March 27, 1906, defendant caused plaintiff to be arrested at Canyon City, Grant County, on a warrant issued by a justice of the peace, based on an information sworn to by defendant, charging plaintiff with having obtained from defendant on March 9, 1906, the sum of $37.50, under false pretenses.

<p>From Marion: William Galloway, Judge.</p> <p>Suit by George J. Wolfer against W. H. Hurst and another. From a decree dismissing the complaint, plaintiff appeals.</p>

<p>From Union: Thomas A. Crawford, Judge.</p> <p>F. K. Reyner appeals from a conviction of a crime.</p>

From Douglas: James W. Hamilton, Judge. Statement by Mr. Commissioner Slater. This is a suit by C. I. Leavengood against James T. and Euth McGee, the McGee Co. and Frances McGee, wife of one P. T. McGee. Plaintiff sues, as a trustee in bankruptcy of PT. McGee,' a bankrupt, to set aside, as fraudulent as to bis creditors, two deeds ultimately conveying to J. T. McGee certain lots in the Town of Myrtle Creek, Douglas County.

From Multnomah: John B. Cleland, Judge. Statement by Ms. Justice Bakin. This is an action to recover money, to which defendants counterclaimed. From judgment for plaintiff, defendants appeal. Don Sing had a lease of the hopyard of defendants, paying one-third of the crop as rental.

From Marion: George H. Burnett, Judge. Action bjr George Summers against T. T. Geer, L. B. Geer and W. H. Odell, to recover money obtained from plaintiff by fraud and deceit. From a judgment for defendants, plaintiff a.ppeals. A motion to dismiss the appeal was denied.

From Wallowa: Bobbrt Eakin, Judge. Action by William Montgomery against E. P. Somers for trespass. From a judgment in favor of plaintiff, defendant appeals. Statement by Mr. Commissioner Slater. On February 2, 1906, plaintiff and his lessor settled upon, and entered as homesteads, under the laws of the United States, adjoining tracts of land lying in the eastern part of Wallowa County, in a deep and precipitous canyon on the Ininaha River.

From Marion: William Galloway, Judge. Suit brought by Robert L. Stevens against F. W. Benson, as Secretary of State, to enjoin the filing of a petition, referring to a vote of the people of the State, under the referendum provision of the constitution, an act passed by the legislature February 16, 1907 (Laivs 1907, pp. 53, 54) providing for the custody and control of persons confined in county jails, etc. From a decree in favor of plaintiff, defendant ajipeals.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. On the 23d day of May, 1907, the plaintiffs and others presented to the Secretary of State for filing a petition directing a reference to the people, under the referendum provision of the constitution, a measure passed by the legislative assembly in February, 1907, known as “House Bill No. 37,” to increase the annual appropriation for the support of the University of Oregon.

<p>From Gilliam: W. L. Bradshaw, Judge.</p> <p>Statement by Mr. Justice Eakin.</p> <p>This is a creditors5 suit to uncover property alleged to have been fraudulently conveyed. There was decree for plaintiff, and defendants appeal.</p> <p>On March 4, 1904, one Jef Neal, a saloon keeper of Condon, Oregon, was indebted to the plaintiff, a wholesale liquor dealer of The Dalles, for goods previously sold, for which payment was overdue and, in consideration of an extension of the time of payment for nine months, defendant, Frank Wilson, jointly with Neal, executed and delivered to plaintiff his promissory note therefor in the sum of $1,526.35, due nine months after date. Thereafter, on June 26, 1904, said Neal, being hopelessly in debt, in consideration that Frank Wilson would pay certain debts of Neal, including the note to plaintiff, transferred to said Frank Wilson his saloon stock, business and fixtures, without other consideration, and said Wilson took possession thereof, and on the same day a portion of said stock of goods was attached in an action by Wilmerding Lowe Company against Jef Neal. On the 25th day of June, 1904, said Frank Wilson conveyed to defendant Fred Wilson, his brother, the south half of lot 4, of block 4, of the town of Condon, which deed plaintiff seeks to set aside for fraud. Fred Wilson was in the saloon business in Condon, and the defendants had formerly been partners in such business. Upon the maturity of the note of plaintiff he brought an action in the circuit court for Gilliam County to recover upon said note, and had the said south half of lot 4 of block 4 attached in said suit, and thereafter, on February 24, 1905, brought this suit against Frank and Fred Wilson to have said conveyance canceled as an obstruction to the enforcement of said attachment lien: Defendants answer separately, but practically make the same defense, viz., that the transfer of said lot from Frank to Fred was made in good faith for valuable consideration and without notice to Fred of any fraud.</p>

From Multnomah: Arthur L. Frazer, Judge. Submitted on briefs under Eule 16 of Supreme Court. Statement by Mír. Justice Moore. This action was commenced in the Justice’s Court for Portland District to recover the possession of certain personal property, or the value thereof in case delivery cannot be had, and damages for the alleged unlawful detention; the complaint being in the usual form.

<p>Executors and Administrators—Expenses.</p> <p>1. If a husband’s curtesy estate in the property of his deceased wife gives him possession to the exclusion of the administrator, the expenses of fencing the property, insurance on a building thereon, and other expenses for the benefit of the husband, are not chargeable against the estate.</p> <p>Fraud—Representations—Reliance—Fiduciary Relations.</p> <p>2. The rule that a person is guilty of negligence in relying on statements or representations of another as a basis of a contract or transaction, does not apply to parties occupying the relation of trust or confidence, such as parent and child, or guardian and ward.</p> <p>Administrators—Final Account—Vacation—Ground.</p> <p>3.. Where a husband was appointed administrator of his deceased wife’s estate and fraudulently induced the heirs to advance their money to maintain the same, to acquiesce in the final account without examination, and withhold their claims against the estate, the heirs were entitled to have the final account vacated and the estate reopened.</p>

From Clackamas: Thomas A. McBride, Judge. Statement by Mr. Chiee Justice Bean. This is a suit by J. W. Roots against the Boring Junction Lumber Company to enjoin and restrain the defendant corporation from cutting and removing cord wood from land belonging to plaintiff. On June 28, 1902, plaintiff contracted to sell one 0.

From Polk: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit for the assignment of dower. Decree for plaintiff, and defendant appeals. W. M. Davidson, plaintiff’s husband, in his lifetime was the owner in fee of the donation land claim of Carter T. Davidson and wife, containing 320 acres.

From Multnomah: M. C. George, Judge. The defendant, George L. Blodgett, was charged with the crime of murder in the first degree, tried and convicted; from the judgment' entered thereon, he appeals.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Justice Eakin. The complaint in this case sets out a cause of suit for foreclosure of a mortgage, bearing date of February 7, 1900, executed by Edgar T. Wallace, in favor of Mrs. 0.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Justice Eakin. This is an action of replevin against the defendant, as sheriff, to recover attached personal property held by him upon a writ issued in the case of Knapp v. Wallace, 50 Or. 348 (92 Fac. 1054).

From Yamhill: George H. Burnett. Judge. A demurrer to the complaint having been sustained, judgment was rendered in favor of defendant, from which plaintiff appeals. Statement by Mr. Commissioner King.

From Clackamas: Thomas A. McBride, Judge. Suit by George P. McNear to determine an adverse claim to real' estate. A decree was rendered in favor of plaintiff, and defendant appeals.

From Multnomah: A. F. Sears, Jr., Judge. Defendants were accused of permitting a female under the age of 21 years, to remain in and about a saloon kept by them in the City of Portland. From a conviction, defendants appeal.

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Chibe Justice Bean. This is a suit in equity filed by plaintiff to establish his title to certain real estate in Jackson County against the claim of defendant, Augustine Schmidtlin. On April 14, 1884, Jane Holt died intestate, leaving surviving her a husband, George W. Holt. At the time of her death she was the proprietor, and she and her husband were the owners by joint deed, of the Hnited States Hotel in Jacksonville.

From Marion: William Galloway, Judge. Suit by W. C. Cooper to determine an adverse claim to real property. There was a decree for defendant, from which the plaintiff appeals.

From Douglas: James W. Hamilton, Judge. Suit to foreclose a chattel mortgage. From a decree for plaintifE, defendant appeals. Statement by Mr. Commissioner King.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit in equity to enjoin the improvement of a county road and to prevent the assessment of any portion of the expense thereof upon plaintiff’s lands. A demurrer to the complaint ivas overruled by the lower court, and decree rendered granting a perpetual injunction against defendant, and it appeals.

<p>Review—Return—Conclusiveness—Jury List.</p> <p>1. The return on a writ of review to review judicial proceedings is conclusive as to the facts. The return on a writ of review to review proceedings of the recorder’s court of a city on a trial for the violation of a municipal ordinance, showed that accused demanded a jury, and that, the court having no list of j urors in accordance with Section 2251 et seg., B. & O. Oomp., ordered an officer to select jurors, and that accused objected to that manner of selecting a jury, and filed a motion that a jury be selected from the jury list. Held to show that accused, at the time of his demand for a jury, had the right, as expressly authorized by Section 2257, B. & 0. Oomp., to demand a jury from the jury list, and the court could not direct an officer to select a jury.</p> <p>Jury—Selection—Justices’ Courts.</p> <p>2. "Where a party, as authorized by Section 2257, B. & O. Oomp., demands a jury selected from the jury list, provided for by Section 2251 et seg., the court cannot, over the objections of such party, direct an officer to summon a jury as authorized by sections 2221 and 2222, though the court has no jury list.</p> <p>appeal—New Trial—Exceeding Jurisdiction—Mistrial.</p> <p>3. Where the error of the court on a prosecution for the violation of a municipal ordinance resulted from exceeding its jurisdiction in directing an officer to summon a jury, notwithstanding the demand of accused for a jury from the jury list, the error amounted to a mistrial only, and the cause, after conviction, must be remanded for new trial.</p>

From Marion: William Galloway, Judge. Statement by Mr. Commissioner Slater. This action was brought to review the proceedings of the recorder’s court of the City of Silverton, wherein the petitioner was charged, tried and convicted of the violation of an ordinance prohibiting the obstruction of streets. The petition and the material facts are the same as in dustier v. dtiy of Silver-ton,, and a like judgment was entered by the circuit court, from which the defendant appeals.

From Benton: Lawrence T. Harris, Judge. The defendant was convicted of violating the local option law', and from the judgment rendered thereon he appeals.

From Union: William Smith, Judge. The defendant, E. W. Bartlett, was convicted of the crime of attempting to extort money, alleged to have been committed b}7 unlawfully threatening to prosecute certain persons for gambling. From the judgment that followed he appeals, alleging error of the trial court in charging the jury.

From Baker: William Smith, Judge. Defendant was convicted of the crime of assault, being armed with a cowhide, as defined by Section 1766, B. & C. Comp. From the judgment rendered thereon he appeals.

From Tillamook: William Galloway, Judge. Action by R. Robinson against the R. Robinson Cheese Company. From a judgment in favor of plaintiff, defendant appeals. Respondent now moves' to dismiss the appeal.

<p>Negligence—Contributory Negligence—Burden oe Proof.</p> <p>1. Contributory negligence is a matter of defense and the burden of establishing it is on defendant, unless plaintiff’s declaration or evidence establishes it.</p> <p>Tri al—N ONSUIT.</p> <p>2. The province of a motion for nonsuit is in the nature of a demurrer to the evidence, and when it is sought to take advantage of a defect in the pleadings by such a motion, the pleadings should be construed liberally, as if on a motion by defendant for judgment, notwithstanding the verdict against him.</p> <p>Pleading—Defects.</p> <p>3. A party relying on a technical defect in a pleading is subjected to observ-' anee of technical rules.</p> <p>. Railroads—Injury to Animals—Contributory Negligence—Pleadings.</p> <p>4. Where, in an action against a railroad company for killing cows on its track, the company as an affirmative defense alleged that plaintiff negligently herded cows along the right of way within switching limits at a station, with knowledge that the right of way was dangerous, a reply denying the averments of the answer, except that “certain cows of the plaintiff, being then and there under the immediate care, custody and control of plaintiff,” construed liberally in favor of plaintiff, did not admit contributory negligence.</p> <p>Same—Pleadings.</p> <p>5. An answer, in an action against a railway company for killings cows on its track, which alleges that plaintiff negligently herded “certain” cows along the right of way within switch limits at a station, with knowledge of tin* danger, and that he negligently permitted the stock to remain on and along the track, and that thereby the stock sustained injuries, etc., does not, on a striet construction, raise the defense of contributory negligence, in the absence of any identification of the “certain” cows with those whose killing is sued for.</p> <p>Same—Contributory Negligence—Question for Jury.</p> <p>6. In an action against a railway company for killing animals on its track, the question of contributory negligence of the owner, held for the jury.</p> <p>Trial—Question for Jury—Evidence.</p> <p>7. Where different deductions may reasonably be drawn from the evidence in a cause, the issues are for the jury; and, to justify the granting of a non-suit, the facts and inferences must be undisputed.</p> <p>Railroads—Injury to Animals—Contributory Negligence.</p> <p>8. Whether one is guilty of contributory negligence in turning his stock out to graze on uninelosed lands near a railroad track, is a question for the jury.</p> <p>Negligence—Contributory Negligence—Ordinary Care.</p> <p>9. One is not guilty of contributory negligence, unless he fails to exercise ordinary care; and there is no want of ordinary care when, under the circumstances, he does not omit anything which an orclinarly prudent person similarly situated would not have omitted.</p> <p>Same—Question for Jury—Negligence.</p> <p>10. Where both the duty to exercise care and the extent of its performance are to be ascertained as facts, the jury alone can determine wliat is negligence, and whether it has been proven.</p> <p>Railroads—Injury to Animals—Station Grounds.</p> <p>11. In an action against a railroad for injuries to animals on its track, the evidence showed that there were about one and one-half miles of unfenced track from one station towards another; that it was three-quarters of a mile from the station to the head of a switch for a siding running back toward the station used for storing engines, etc., and’that further on in t-lie direction of the other station, about one hundred and fifty yards from the switch was a branch line leaving the main line and forming the head of a “Y.” The animals were killed near the switch for the siding. There was nothing to show that the siding was used in connection with a depot at the station. I-Ietd, that the question whether the animals entered the track within depot grounds was for the jury.</p> <p>Appeal—Review of Evidence—Bill of Exceptions.</p> <p>12. Where the evidence is not in the bill of exceptions, and a transcript of what appears to be evidence is in the record, but the same is not identified by the court, or certified to be any or all of the testimony in the case, the court on appeal will not consider it.</p>

Erom Lane: James W. Hamilton, Judge. Statement by Mr. Justice Eakin. This is a proceeding brought by the plaintiff to review the action of the County Court of Lane County in disallowing its claim for road tax money collected by the county from the taxable property within the City of Eugene.

<p>From Grant: George E. Davis, Judge.</p> <p>Statement by Mr. Commissioner Slater.</p> <p>On February 12, 1907, Rachofsky & Son filed, in the justice’s court for the Third Justice’s District of Grant County, a complaint embracing two causes of action against plaintiff. On the first cause of1 action judgment was demanded for $29-60, with interest at 6 per cent per annum from October 7, 1903, and on the second cause of action for the sum of $20, with interest at the rate of 6 per cent from July 15, 1903, and for their costs and disbursements. The summons was issued on February -12, and required the defendant in the action to appear and answer the complaint within 7 days from the date of the service thereof, or suffer judgment to be taken against him for the sum of $49.60, with interest thereon, with the disbursements of the action. It was returned and filed with the justice on the 21st, with an indorsement thereon showing personal service on February 13, in Grant County, Oregon, on defendant, by a delivery to him of a copy thereof prepared and certified by the deputy sheriff, together with a copy of the complaint certified to be such by plaintiff’s attorney. After the issuance of the summons, no entry was made by the justice in his docket that in any way referred to the date of the making or filing of any pleading by the defendant, or of his appearance or failure to appear in the action until the 21st, when the following entry was made: “Plaintiff appeared, and it appearing that the defendant has failed to answer the complaint as required by law, it is considered that the plaintiff recover off the defendant the sum of $59.89, and the disbursements of the action, taxed at $13.90.” On March 4, 1907, plaintiff herein sued out a writ of review to set aside and annul such judgment on the ground (1) that no summons was issued as required by law; (2) that there was no service upon the petitioner of the pretended summons; (3) that the justice did not enter in his docket the failure of the defendant to appear; (4) that it does not appear from the judgment as entered in the justice’s docket that the defendant therein was ever served with a summons in said action, or that he was served more than seven days prior to the rendition of the judgment; and (5) that the amount for which it was entered does not conform it to the amount specified in the summons, for which judgment would be taken in default of an answer. The lower court set aside the judgment, and Rachofsky & Son appeal.</p>

<p>Execution Sale—Setting Aside—Acquiescence.</p> <p>1. Parties acquiescing in tlie action of the court in setting aside an execution sale and ordering a resale, are bound thereby.</p> <p>Same—Persons Who May Question Validity' of Sale.</p> <p>2. At common lav the confirmation of a sale on execution might be objected to and the same set aside by plaintiff, defendant, or the purchaser.</p> <p>Same.</p> <p>3. Under Section 242, Subd. 1, B. & 0. Comp., providing that plaintiff in execution shall be-entitled to an order confirming a sale thereunder, unless the judgment debtor or his representatives shall file objections, does not deprive any other interested person than the debtor of the right to object who by common law possessed that right; and hence plaintiff may object.</p> <p>Same- Resale—Statutory Provisions.</p> <p>4. The mere fact that plaintiff in execution refused to receipt to the. sheriff for the amount of his bid, or to credit his judgment, would not of itself be evidence of an abandonment or withdrawal of his bid, so that there would be in law no sale to him within Section 212, Subd. 1, B. & O. Comp., providing that on a resale, the purchaser’s bid at the former sale shall be deemed renewed and to continue In force, and no bid shall be taken except for a greater amount.</p> <p>Same—No Right to Withdraw Bid on Execution Sale.</p> <p>5. Property having been struck oft' to plaintiff in execution, he had no right to withdraw his bid, and could be excused only by an order of the court, and, if the sale was considered by the court regular, it had the power to enforce the same, and cancel the judgment pro tanto, notwithstanding plaintiff’s refusal to receipt to the sheriff.</p> <p>Same—Resale—Former Bid Renewed.</p> <p>6. Under Section 242, Subd. 1, B. & O. Oomp., providing that on a resale on execution the purchaser’s bid at the former sale shall be deemed renewed, and no bid shall be taken except for a greater amount, and by subdivision 8, providing for a repayment to the former purchaser, if the property sell for a greater amount to another, where the court in ordering a resale did not include therein any release of plaintiff in execution from his bid, he continued to be bound by it, and the sheriff was bound to consider it as renewed.</p>

<p>Attachment—Attaching Creditor—Bona Fide Purchaser.</p> <p>1. Section 302, B. <fc C. Comp., provides that from the date of an attachment until it is discharged, or the writ is executed, plaintiff, as againt third persons, shall be deemed a purchaser in good faith and for a valuable consideration, provided the sheriff’s certificate required by section 301 is filed as required by section 303. Held, that an attaching creditor, in order to obtain the rights of a bona Ude purchaser, is bound to prove that he in fact acquired his lien in good faith and without notice of outstanding equities.</p> <p>Ordinary Prudence in Making Purchases—“Good Faith.”</p> <p>2. Good faith is an honest intention to abstain from taking any unconseientious advantage of another, even through the forms or technicalities of law, together with an absence of all belief of facts which would render the transaction uneonscientious. A want of that caution and diligence which an honest man of ordinary prudence is accustomed to exorcise in making purchases is, in judgment of law, a want of good faith.</p> <p>Vendor and Purchaser—Notice. ■</p> <p>8. Whatever is sufficient to put a subsequent purchaser on inquiry must be considered legal notice to him of the facts inquiry would have disclosed by the exercise of reasonable diligence.</p> <p>Attachment—Attaching Creditors—Notice—Records.</p> <p>4. Sections 800-308, 5359, B. & 0. Oomp., provide that nonexempt real estate shall be liable to attachment by the sheriff making a certificate and filing the same with the clerk of the county in which the property is situated, and that from the date thereof the plaintiff, as against third persons, shall be a purchaser in good faith, and that every conveyance of real property within the State which shall not be recorded within five days after its execution shall be void as against a subsequent bona fide purchaser whose conveyance shall be first recorded. Tj. having sold certain land to 1). for a consideration, half of which was secured by a mortgage thereon, 1). within an hour conveyed the property to G., who conveyed it to complainants’ grantors. The mortgage to L. was recorded, but the deed to D. was not, and defendant, relying on a statement by L. that he had conveyed the land to D., attached it for D.’s debt, after which the deeds to D. and complainants were recorded. Held, that L.’s statement that^he had conveyed the land to D. was rebutted by the record which showed that the title still remained in L., which record only gave notice of the facts therein started and warned defendant to make further inquiries as to D.’s title to the premises, so that he was not a bona fide purchaser under his attachment, entitled to priority against complainants.</p>

<p>From Malheur: George E. Davis, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is a suit by Emma Frye against James T. Moffet for the partition of real property. The complaint alleges that plaintiff and defendant are the owners in fee, as tenants in common, of the property in question, but does not allege that plaintiff is in possession as such tenant. On the contrary, it is averred that defendant “has had the sole use and occupancy” of the property since the 1st of November, 1904, and has been receiving the rents and profits therefrom, and prays that he be required to account to plaintiff therefor. A demurrer to the complaint, because it does not state facts sufficient to constitute a cause of suit, was overruled, and defendant answered, denying the material averments thereof, and for a further and separate defense alleging that he is the sole owner of the property, and has been in the exclusive possession thereof since the 17th day of November, 1902. The reply put in issue the averments of the answer, and upon the issues thus joined a trial was had. From the evidence it appears that plaintiff and defendant were formerly husband and wife, but were divorced in October, 1903. On the 17th of November, 1902, and while they were such husband and wife, one J. H. Wright executed a deed, without his wife joining therein, and having but one witness, purporting to convey the property in controversy to them jointly and delivered it to plaintiff. Shortly thereafter she separated from her husband, and subsequently secured a divorce. About the time of the separation defendant entered into possession of the property in dispute, and has ever since remained in the sole and exclusive possession thereof. In June, 1904, plaintiff commencecl this suit, claiming 'that the deed from Wright conveyed the property to her and defendant, who were then husband and wife, as tenants by the entirety, which was subsequently dissolved by the decree of divorce, leaving them tenants in common. Defendant claims, however, that he purchased the property of Wright for his own use and benefit, paying .a part of the purchase money at the time, and was to receive a deed upon payment of the balance; that the deed made by Wright to himself and plaintiff was without his knowledge or consent, and that he knew nothing about it until after the decree of divorce, when he discovered it in a trunk in his house; that he immediately repudiated the transaction, offered to return the deed to Wright, and thereafter tendered him the balance of the purchase money, and demanded a good and sufficient conveyance from him. Plaintiff, on the other hand, claims that she was a joint purchaser with defendant of the property, and furnished the money with which to make the first payment, and after-wards paid a part of the balance; that the deed from Wright was made to herself and defendant, with his knowledge and consent, and by his direction. The court below found that plaintiff and defendant were the owners in fee and in possession as tenants in common; that the property could not be divided without great prejudice to their interests, and directed a sale and division of the proceeds. A sale was afterwards made and confirmed, and defendant appeals.</p>

<p>From Union: Thomas H. Crawford, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action for money had and received, and comes here on appeal from a judgment on the pleadings in favor of' defendants. The facts are set out in detail in the pleadings of the respective parties. Briefly, they are that plaintiffs are the administrators of the estate of H. L. Buell, deceased, and N. C. McLeod was their attorney and legal adviser. At the time of his death Buell was indebted to H. C. Brown on a promissory note for $1,000, with John Graham as surety. After the appointment of plaintiffs Brown presented to them a duly verified claim against the estate of' their decedent for the amount due on such note. After such presentation the defendants, Hooper & Hudson, through McLeod, as their attorney, commenced an action at law in the circuit court of Union County, against Oscar Baden and H. C. Brown, partners doing business under the firm name of Baden & Brown, to recover the sum of $342.35, 'and caused a writ of attachment to issue in such action. A copy of the writ, together with a notice of garnishment, was served on J. B. Thorsen, one of the plaintiffs, and in answer thereto he stated that “there is a balance due H. C. Brown of $500, on principal and accrued interest.” The defendants after-wards recovered judgment in their action against Baden & Brown, and an order of the circuit court reciting the attachment of the claim of Brown against the Buell estate, and directing that the attached property be sold as on execution to pay the judgment, costs, and disbursements, and that the “claim in said hands of said administrators may be collected if the proceeds thereof can be so collected by the sheriff under his execution or order of sale herein.” A few days later an execution was issued on this judgment, and placed in the hands of the sheriff for service, who notified plaintiff Thorsen, by telephone, that he had an order from the circuit court directing him to pay. out of the funds of the Buell estate the amount of the judgment and costs of Hooper & Hudson against Baden <Sr Brown. Thorsen thereupon advised with McLeod, his attorney, without knowledge that McLeod was also attorney for defendants, and McLeod told him that the attachment proceedings were regular, and that he was compelled to pay the money over to the sheriff as demanded. Thorsen, acting upon the statement of the sheriff as to the nature of the order of the circuit court and the advice of McLeod, j>aid the money over to the sheriff, and it was afterwards paid by that officer to the defendants. At the time of the service of the garnishment process upon Thorsen no order of the county court had been made for a distribution of the funds of the Buell estate or directing the administrators to pay the claim of Brown, and the promissory note, upon which such claim was based, did not belong to Brown, but had previously been assigned by him to Jennie P. Brown, who subsequently sued and recovered the amount thereon from Graham, the surety.</p>

From Union: Thomas H. Crawford, Judge. Statement by Mr. Chief Justice Bean. This action was commenced in the justice's court to recover money.

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Plaintiff obtained a decree in the circuit court of Lane County; from which the defendant attempts to appeal. Respondent now moves to dismiss the appeal.</p>

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Moore. This is an action by the First National Bank of Pomeroy, Iowa, a corporation, against B. F. McCullough and M. H. Gillette, to recover on two promissory notes.

<p>From Multnomah.: Alfred F. Sears, Judge.</p> <p>Statement by Mr. Chief Justice Bean.</p> <p>This is an action to recover damages for personal injury suffered by plaintiff’s son, a lad about 17 years of age, while working for defendants. At the time of the injury, and for some time prior thereto, defendants were operating a steam sawmill at Linnton, a few miles below Portland, which they had purchased a few months previously. The mill was equipped with an upright iron feed lever fastened to the floor about feet from the saw pit, and which was connected with the engine and operated by the sawyer in moving the log carriage forward and backward while cutting lumber. When the lever was in an upright position the log carriage was at rest; hut as there was danger of it being accidentally moved, and the carriage set in motion, it was provided with a cast-iron drop fork lock or fastener attached to the frame a few inches from the floor on the side next to the saw pit, and an iron pin passing through tbe lever and frame just below the lock for the purpose of securely holding the lever in position when the carriage was at rest. As the appliance came from the manufacturer, the lock or fastener projected about an inch from the lever frame, and could be conveniently raised and lowered into place with the hand only. Some time prior to defendants’ purchase of the mill, however, a concave steel plate projecting about inches had been riveted to the face of the lock to enable the sawyer to manipulate it with his foot; but for some reason tbe use of tbe lock, as thus equipped, had been abandoned by the former owner of the mill. Two or three months before' the accident complained of, and while defendants were overhauling and repairing the mill, their millwright and superintendent contemplated reinstalling the lock; but objection was made to Ms doing so by some employees because it was unsafe, and had previously permitted an automatic movement of the carriage. The attention of one of the defendants was called to the matter, and he suggested that a hole be made through the frame and lever just below the lock, and an iron pin be provided to supplement the lock, which was done accordingly. As thus equipped the lever was used by defendants up to the time of the accident.</p> <p>It was necessary in the operation of the mill to remove the band saws from the wheels upon which they operated four times a day and take them to the filing room to be filed. Plaintiff was employed b3r defendants as saw filer, with his son as an assistant, and they were accustomed to aid in the work of removing the saws and taking them to the filing room. It required five or six men to do this, and they had to work in the space between the saw pit and the lever, and roll or move the saws over and across the carriage track to get them to the filing room. On the day of the accident, and while a saw was being removed and taken to the filing room, the teeth caught in the clothes of one of the workmen, and he was thrown against the lever, knocking out the pin, loosening the lock, and starting the log carriage, which caught and severely injured plaintiff’s son.</p> <p>This action is brought to recover damages for the injuries so sustained. The negligence charged in the complaint is that defendants “carelessly and negligently failed to maintain a proper or safe fastening for said lever, so as to prevent it from jarring loose, or from being accidentally moved by workmen employed in and about the mill, and that the unsafe condition of said lever in being insufficiently fastened and secured was known to the defendant during all of said time.” The defendants deny the negligence charged in the complaint, and affirmatively allege (1) that they had equipped their mill with reasonably safe machinery, tools and implements, such as ordinarily used in similar mills, and that it was provided with ordinarily safe machinery and appliances in good repair and condition at the time of injury to plaintiff’s ward; (2) that while the saw was being removed to the filing room by plaintiff and his fellow servants one of such servants accidentally fell against the lever and released the fastening thereof, so that the log carriage was propelled forward, injuring plaintiff’s son, which accident was unavoidable by defendants; (3) that whatever negligence, if any, caused the injury was that of a fellow servant and not the defendants; (4) 'that plaintiff’s son fully understood the manner in which the lever was fastened, and the dangers incident thereto, and with such knowledge voluntarily entered upon and continued in defendants’ service, and thus assumed all the risks and hazards reasonably to be apprehended in the performance of his duties. The reply put in issue the averments of the answer. Trial resulted in verdict and judgment in favor of plaintiff, and defendants appeal, assigning error in overruling their motion for nonsuit, in the admission and rejection of evidence, and in giving and refusing certain instructions.</p>

From TJmon: Thomas H. Crawford, Judge. This is an action by L. McGregor against the Oregon Railroad & Navigation Co., to recover the value of certain household goods and bar supplies destroyed by fire, after the goods had reached their destination and before they were delivered to the consignee. From a judgment in favor of plaintiff, defendant appeals.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Eakin. This is an appeal from an order of the circuit court directing the clerk of that court to pay to the plaintiff $230, tendered by the defendant, and deposited'in court with his answer in the case.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Moore. This is a suit to enjoin the transfer on the books of a corporation of certain shares of stock, evidenced' by certificates, and to secure a surrender thereof.

From Lane: James W. Hamilton, Judge. Suit by E. F. Gillett against W. H. Dodge, C. Runyard and the Sunset Gold Hill Mining Co., resulting in a decree for defendants, from which this appeal is taken. Aeeirmed.

From Polk: William' Galloway, Judge. Suit by Alexander Cooper against Michael Strauber and wife to declare a deed in favor of defendants, a mortgage, and for permission to redeem. • From a decree in favor of defendants, plaintiff appeals.

<p>From Douglas: James W. Hamilton, Judge.</p>

<p>From Douglas: James W. Hamilton, Judge.</p>

<p>From Douglas: James W. Hamilton, Judge.</p>

<p>From Washington: Thomas A. McBride, Judge.</p>

From Marion: William Galloway. Judge. This is a suit to enjoin the defendant, as Secretary of State, from filing a referendum petition, seeking to invoke the referendum upon House Bill No. 241 (Laws 1907, p. 118), requiring transportation companies to grant free transportation to public officials.