Volume 52 — Oregon Reports

From Curry: James W. Hamilton, Judge. The defendant, R. D. Hume, was convicted of the crime of canning salmon, without first having obtained a license therefor. From the judgment which followed, defendant appeals,

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Commissioner Slater. On May 9, 1902, B. E. Miller filed his complaint in Multnomah County in an action against Albert Abraham to recover a sum of money on an account.

<p>Taxation—Sheriff’s Bond —Default AvS Tax Collector—Sureties’ Liability.</p> <p>B. & 0. Comp. § 2528, requires a sheriff to give an official bond with resident sureties. .Section 8093, makes him ex officio tax collector. Hill’s Ann. Laws, § 2794, required a sheriff before collecting taxes, to execute an additional bond, and after the Supreme Court decided that such additional bond was not cumulative to the sheriff’s official bond, and that the sureties on the official bond were not liable for his failure to pay over money collected as taxes (Columbia County v. Massie, 31 Or. 292: 48 Pac. 694), the statute was amended so as to require him, as now provided by B. & 0. Comp. § 3094, to give a bond as tax collector, signed by a surety company or other sureties approved by the county court, and so as to make such bond additional and cumulative to the general bond to which resort maybe had on his default as tax collector, “if the additional bond be unenforceable or insufficient.” Held, that recourse against the sureties on the general bond for a sheriff’s default as tax collector, is limited to cases in which an additional bond is unenforceable or insufficient, releasing them from such liability where no such bond has been required or given.</p>

<p>From Wheeler: William L. Bradshaw, Judge.</p>

From Coos: Lawrence T. Harris, Judge. This is an action by Frances McLeod against the Pacific Telephone Company. From a judgment granting a nonsuit, plaintiff appeals. Statement by Mr. Chief Justice Bean. This is an action to recover damages for a failure of defendant company to notify plaintiff that she was wanted at one of its offices to answer a long-distance call. Plaintiff resides at Marshfield, and is a stenographer by profession.

From Multnomah: John B. Cleland, Judge. Action by C. W. Fredenthal against Brown & McCabe, stevedores, a corporation, for an injury received by plaintiff while assisting in loading a ship with lumber. At the close of the trial the court allowed a nonsuit on motion of defendant, and from the judgment which followed, plaintiff appeals. Statement by Mr. Justice Eakin.

From Baker: William Smith, Judge. The defendant, Roy Fuller, was convicted of the crime of manslaughter, and from the judgment and sentence which followed, he appeals.

From Malheur: George E. Davis, Judge. Statement by Mr. Commissioner Slater. This is an action in conversion for the value of a quantity of hay, of which, it is alleged, plaintiff was the owner, possessed, and entitled to the immediate possession at the time defendants took and converted it to their own use in the fall of 1901, and the winter and spring following.

From Clatsop: Thomas A. McBride, Judge. Statement by Mr. Commissioner Slater. On September 10, 1901, the defendant corporation was organized with a capital stock of $150,000, divided into 1,500 shares of the par value of $100 each, for thé purpose of developing and working coal mines in this state.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Commissioner King.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Eakin. This is a personal injury case, in which William M. Manning, plaintiff, recovered a judgment against the Portland Steel Ship Building Co., and defendant appeals. In September, 1906, the defendant was engaged in rebuilding the steamship, Geo. W. Elder. Plaintiff, with another workman, was employed by it, as an inexperienced laborer, in cutting off the heads of rivets by means of a steel chisel and sledge.

From Baker: William Smith, Judge. Statement by Mr. Justice Moore. This is a suit by George W. Fredricks against Antone Klauser, to enjoin the continuation of an alleged trespass upon certain real property.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit to compel specific performance of the following contract for an exchange of lands: “Woodburn, Oregon, June 16, 1906.

From Douglas: Lawrence T. Harris, Judge. This is an action by F. W. Dillard and G. S. Clayton, partners, against the Olalla Mining Company to recover a commission of $1,750 alleged to be due plaintiffs as, real estate brokers, for the sale of certain placer mining property situated in Douglas County. From a judgment in favor of plaintiffs, defendant appeals.

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by Sarah A. Merrill against Louis Hexter and Lehman Strause, partners as Hexter & Strause, to cancel a lease of real property, and to annul a contract for the sale thereof. The plaintiff, in June, 1905, was the owner in fee of lot 1 in block 4 in Park addition to the city of Portland, Oregon, at which time she executed to the defendants a written option wherein she granted to them, for a term of 60 days, the right to purchase the real property for $50,000, one half of which was to be paid in cash, and the remainder in five years, with interest at 4 per cent per annum, to be secured by mortgage. At that time a storeroom and a basement in a building on the lot had been leased at $125 per month to one Fred Langman, who was operating therein a meat market, the remainder of whose term was about eight months. Langman sold his interest in the butcher business to the defendants, who took possession of the store, and on July 13, 1905, they entered into a contract with the plaintiff whereby she demised to them for a term of five years the storeroom and basement for the sum of $100 per month, payable in advance; they covenanting to make no unlawful or improper use of the part of the building leased to them and that at all times they would keep the premises properly drained and in a healthful condition, and would not make any additions to, or alterations in, the property, except in the basement, which, at their own expense, they stipulated to enlarge and finish with brick or cement walls and a concrete floor. It was agreed that the defendants at any time during the term of the lease, might, and at the expiration thereof, would, purchase the lot specified, and pay therefor the sum of $50,000 in gold coin of the United States.</p> <p>The contract contains the following material stipulations : “Provided always, and these presents are upon this condition, that, * * if the lessees * * do or shall neglect or fail to perform and observe any or either of the covenants hereinbefore contained, which on their part are to be kept or performed, then and in either of said cases the lessor * * may immediately and without further notice * * or demand enter into and upon the said leased premises or any part thereof, in the name of the whole, and repossess the same as of her former estate, * * * * expelí the lessees, * * and annul said option to purchase. * * ”</p> <p>Upon securing such lease the defendants established a meat market in the storeroom and basement, and promptly paid the stipulated rent; but on July 25, 1906, this suit was commenced, the complaint setting forth the facts hereinbefore stated, and alleging that the defendants had failed, and upon a demand therefor refused, to keep or perform their covenants, to make the improvements mentioned, or to keep the premises clean.</p> <p>The answer admits the facts stated, denies a breach of any of the covenants of the lease, and alleges that, the defendants have fully complied with all the terms of their agreement, except the actual giving of the consideration for the lot, and that about April 1, 1906, they were, and ever since have been, and now are, ready, able, and willing to pay the sum specified, and at the time stated tendered to the plaintiff $50,000 for the real property, but that she refused to accept the offer, or to execute to them a deed of the premises. The defendants, further answering, and for a cross-complaint, set forth the facts relating to their dealings with the plaintiff in respect to the property, and allege that they have fully complied with all the terms of the contract; that, when they tendered to the plaintiff the full consideration, she declined to receive it, and notified them that she would not accept the offer or comply with the terms of her agreement; and that they have been, and were, ready, able, and willing to purchase the real property and to pay therefor the stipulated sum of money, and would abide any order or direction the court might make in reference thereto. The prayer of the answer is that the plaintiff be required specifically to perform her covenant to convey the premises and to execute to the defendants a good and sufficient conveyance of the lot upon the payment of $50,000, as the consideration therefor.</p> <p>The reply denies the allegations of new matter in the answer, and prays, in addition to the relief sought in the complaint, that the cross-bill might be dismissed for want of equity. Based on these issues a trial was had, and it was decreed that the plaintiff was not entitled to any relief, but that her contract to convey the premises should be specifically enforced, and that, upon the payment to her of $50,000 by the defendants, she should execute to them a good and sufficient deed, conveying to them a marketable title to the lot, particularly describing it, free of all incumbrances, and she appeals.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Eakin. This is an action to recover commissions for the sale of. real estate.

<p>False Pretenses—Definition.</p> <p>1. A ialse pretense is a representation oí some fact or circumstance, calculated to mislead, which is not true.</p> <p>Same-1“Obtaining Money or Property by False Pretenses.”</p> <p>2. The gist of the statutory offense of obtaining money or property by false pretenses, is obtaining money or property from another by deceit, fraudulently and feloniously superinduced by the beneficiary; and, when one by his acts intentionally creates a false belief, with intent to deprive. another of his property, and does so, it is immaterial to his guilt whether such belief is induced by words or acts, or both.</p> <p>Bills and Notes—“Check” Defined—Fraudulent Checks.</p> <p>3. A check is an order on a bank purporting to be drawn upon a deposit of funds. Under Section 4468, B. & 0. Comp., providing that by drawing a check the drawer engages that it will be paid on presentation; when a cheek is given with the fraudulent and felonious purpose of obtaining another’s prop erty, with knowledge of the drawer that he has neither money nor credit at the bank, and that the check will not be paid, he is guilty of obtaining money, by false pretenses, though he makes no other representation in. reference thereto.</p>

<p>Appeal and Kbeok-Questions Reviewable.</p> <p>1. Under Section 72, B. & O. Oomp., providing that i£ no objection be taken, either by demurrer or answer, defendant shall be deemed to have waived the same, excepting only the objection to jurisdiction, and that the complaint does not state a cause of action, an objection that the complaint does not state all the facts essential to jurisdiction may be urged without having been demurred thereto, and for the first time on appeal.</p> <p>Marriage—Action to Annul—Pleadings and Proof—Residence of Plaintiff.</p> <p>2. Under the express provisions of Section 508, B. & 0. Comp., it is sufficient, in a suit to declare void a marriage solemnized in this State, to allege and prove, that plaintiff is an inhabitant of the State at the time the suit is commenced.</p> <p>Divorce—Procedure—Statutory Requirements—Waiver.</p> <p>3. In view of Section 995, B. & 0. Oomp., providing that in any divorce suit the State is to be deemed a party defendant, and that the summons must be served on the district attorney, and requiring him to control the proceedings on the part of the defense, so far as may be necessary to prevent fraud or collusion in the suit, it is the policy of the courts not to permit a waiver of any of the statutory requirements as to such proceed - ings, and it is the duty of the court to deny the divorce, unless sufficient facts properly appear to justify it under the law.</p> <p>Same—Complaint—Sufficiency.</p> <p>4. Under Section 509, B. & C. Comp., providing that in a suit for dissolution of a marriage, plaintiff must be an inhabitant of the State at the commencement of the suit, and for one year prior thereto, a complaint alleging that on a certain date plaintiff and defendant intermarried in Linn County, Oregon, and ever since have been and now are husband and wife, and that plaintiff now resides in said county, fails to sufficiently allege that plaintiff was an inhabitant of the State for one year prior to the institution of the suit, and does not give the court jurisdiction.</p>

<p>Mortgages—Deed Absolute—Evidence.</p> <p>1. Evidence held to show that a person advanced the purchase price of land as a loan to the purchaser, and took title in himself from the vendor as security for the repayment thereof.</p> <p>Monet Paid—Time op Payment—Interest.</p> <p>2. Where money paid is intended as a loan, the law supplies the elements of a loan, such as time for payment, rate of interest, and agreement to repay.</p> <p>Mortgages—Deed Absolute as Mortgage—Evidence.</p> <p>8. A deed absolute on its face, given as security for the repayment of a loan, may be shown by parol to be intended in fact as a mortgage, and the rule applies where the purchaser of land borrows the purchase money and causes the title to pass directly from the vendor to the creditor as security for the loan.</p> <p>Same—Intention op Parties.</p> <p>4. Whether an absolute deed is a mortgage depends upon the intention, of the parties, and not upon the form of words or of the instrument.</p> <p>Trusts—Express Trusts—Taking Title to Land Paid por With Another’s Mdney.</p> <p>5. Where a purchaser of land in securing a loan has the title transferred by the vendor directly to the creditor, the conveyance not only operates as a mortgage as between debtor and creditor, but the grantee also becomes the trustee of the title for the purchaser, and the' trust is enforceable as soon as the debt is paid.</p> <p>Mortgages - Absolute Deed as Mortgage —SupproiENor op Evidence.</p> <p>6. To establish an absolute deed as a mortgage, the proof must be clear, consistent, and convincing that it was intended to operate as a mortgage by the parties.</p> <p>Appeal and Error—Matters Not Raised Below,</p> <p>7. Defendant, in an action to have a deed declared a mortgage and to redeem, having defended on a claim of ownership, and made no suggestion of any other issue, may not, on rehearing, after reversal of the judgment for him, have considered the question of reimbursement for improvements, on the theory of their being made by him, a mortgagee in possession, in good faith, supposing he was the owner.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice Eakin. The premises in dispute are a part of the N. E. [4 of the S. W. 14 of section 16, township 9 S., range 40 E., W. M., and was purchased from the State by Chas. B. Fisher more than 35 years ago. The W. % of the S. E. 1/4 of said section 16 was purchased from the State about the same time by Joseph E. Street.

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Eakin. The plaintiff, I. N. Maxwell, desiring to sell certain real estate situated in Salem, Oregon, in the month of February, 1906, contracted with the defendant, P. L. Frazier, as a real estate agent, to find for him a purchaser for said property, at the price of $2,650, for the agreed compensation to Frazier of $50, and about the same time made a similar contract with defendant, Fred Hurst.

From Multnomah: JOHN B. Cleland, Judge. This is a suit by Francis I. McKenna against the City of Portland, to enjoin the municipality and its officers from issuing and disposing of certain bonds of the city for the purpose of enlarging the present water plant, as authorized by an amendment to the charter, adopted by the people in June, 1907. From an order overruling a demurrer to the complaint, defendant appeals.

• From Wallowa: Thomas H. Crawford, Judge. Statement by Mr. Justice Moore. This is a suit by J. B. Ready against Henry Schmith to enforce the specific performance of a parol contract to convey real property. The facts are, that the defendant is the owner of lot 1, section 4, township 5 north, range 45 east of the Willamette meridian, in Wallowa County, and the plaintiff owns 40 acres of land which joins such lot on the south.

<p>Appeal and Error—Presentation of Questions—Pleading—Reply.</p> <p>1. Where a reply was not challenged in any manner in the trial court, any defect therein is waived.</p> <p>Principal and Agent—Proof of Agency—Matters to be Shown.</p> <p>2. Where a party relies upon a contract, made with a person claiming to be an agent of another party, he must prove, where the agency is disputed, that the person claimed to be an agent was expressly empowered by the person for whom he acted to make the agreement for him, and that the terms of the contract made were within the scope of the authority conferred, orfthat the principal knowingly permitted the agent to assume that he had power to make such contracts, or held the agent out to the public as possessing such power, or that the principal, with full knowledge of the agent’s arrogation of power in making the contract, ratified the agreement,</p> <p>Same—Authority of Agent—Mvidence of.</p> <p>3. A person, employed by a lumber forwarding company as overseer or field overseer, whose duty was to protect the interests of the company, to protect their timber from being destroyed, to see that the company’s men were paid, and that there would he no labor liens on the property, had no authority, as agent of the forwarding company, to enter into a contract for the construction oí a dam, with a party furnishing the forwarding company with timber under contract.</p> <p>JMvrDENOE—Opintons—Agency.</p> <p>4. In an action against a principal for breach of a contract made by ah alleged agent, in which plaintiff failed to prove the agent’s power to make the contract, by showing either express authority, holding out to the public, or ratification by acceptance of benefits, testimony by plaintiff, relating to the agent’s authority to make the contract, held properly excluded; the question whether the agent was duly authorized being for the court.</p> <p>Same—Ratification of Unauthorized Contract—Evidence — Sufficiency.</p> <p>5. Where an agent had no authority to enter into an agreement for the erection of a dam, a declaration by the principal that he did not intend to put any more money into the dam was not sufficient to show a ratification of the agreement of the agent, where the principal asserted that he was furnishing goods and loaning money, to the person with whom the agent contracted to conduct his business.</p> <p>Same—Determination of Agent’s Authority—Question for Court.</p> <p>6. The determination of whether or not an agent is duly authorized to manage some affair for his principal is a matter devolving upon the court.</p> <p>Appeal and Error — Objections for Review — Examination of Witnesses.</p> <p>7. Where an objection in the trial court, to allowing a witness to refresh his memory by looking at a book containing a statement of certain dealings, was made on the sole ground that the record of the transaction afforded the</p> <p>‘best evidence, the action of the trial court overruling the objection would not be reviewed on appeal, on the ground that error was committed in permitting the witness to refresh his memory without first establishing the preliminary facts essential.</p> <p>Same—Record—.Essentials of—Superfluity.</p> <p>8. Where a bill of exceptions is unreasonably voluminous by reason of the incorporation therein of immaterial testimony, the Supreme Court, in reviewing an exception to a ruling, will not search the entire transcript to determine whether or not error was committed in the ruling, but will presume that the trial court's ruling was correct.</p> <p>Instruction—Agency.</p> <p>9. The court having struck out defendant’s testimony relating to a contract with an alleged agent, an instruction to the effect that they should not consider any evidence as to the expenses incurred by defendant in taking down, moving, or rebuilding the sawmill or in erecting the dam, was not erroneous.</p>

<p>From Multnomah: Alfred F. Sears, Judge.</p> <p>Statement by Mr. Commissioner Slater.</p> <p>This action was brought by Olga Senkler, the divorced wife of Jacob Senkler, against Isaac L. Kimber, to recover the possession of an undivided one third of lot 8, in block 1, Salisbury Hill, Portland, Oregon. Kimber'was in possession as tenant of Frank T. Berry, the real owner, who was substituted as defendant and permitted to answer, which he did, denying plaintiff’s claim of ownership and alleging that he is the owner in fee of the entire lot. The reply put in issue defendant’s allegation of title in himself. At the trial there was offered by plaintiff, and received in evidence, over defendant’s objection, a decree of the circuit court of Multnomah County, entered on June 17, 1904, granting her a divorce from Jacob Senkler and awarding her the title to an undivided one third of lot 1, in block 8, Salisbury Hill, city of Portland, Multnomah County, Oregon. There was then offered by plaintiff and received in evidence, over defendant’s objections, affidavits for publication of summons, order, and proof of publication thereof, and a decree in a suit commenced by Olga Senkler against Jacob Senkler on December 14, 1904, and after the expiration of the term at which the decree of-divorce was granted, for correction of such decree respecting the description of the property therein mentioned, so that it should read, lot 8, in block 1, etc., instead of lot 1, in block 8, etc. The correctory decree was entered June 27, 1905. The plaintiff then having rested, defendant moved a nonsuit, which was denied. Thereupon defendant,, in proof of his title, offered in evidence a deed properly executed on July 19, 1904, by Jacob Senkler, conveying to defendant the property described in the complaint in this action. This deed was duly recorded July 20, 1904, in the records of deeds of Multnomah County. At the conclusion of his case defendant moved the court to direct a verdict in his favor, but it was denied, and the court upon its own motion directed a verdict in' plaintiff’s favor, in pursuance of which a verdict was returned, declaring that she is the owner and entitled to the possession of lot 8, in block 1, Salisbury Hill, Portland, Oregon, and upon which judgment was rendered in plaintiff’s fávor for an undivided one half interest in lot 8, block 1, etc. From this judgment defendant has appealed; assigning as errors the admission of plaintiff’s evidence, the overruling of defendant’s motion for a nonsuit, refusing to direct the jury to find for defendant, instructing the jury to find for the plaintiff, and entering judgment in favor of plaintiff on the verdict returned.</p>

<p>Oobpoeations—Stock— Sales—Oontbact—CJonstbuotion—Option.</p> <p>1. A contract declared an agreement by plaintiff to sell to defendants twenty shares of certain stock, as an entirety, for $2,600, ten shares to be delivered and paid for immediately, and ten shares to be delivered to a bank and paid for within thirty days. The contract also recited that it was mutually understood that dividends on the latter shares should go to the purchasers with the original ten shares, and as a part thereof, and that the parties agreed to carry out the provisions of the contract on their respective parts to be performed. Held not a mere option on defendants’ part to purchase the deposited shares, but a mutual contract of sale thereof, which became executed on plaintiffs’ part on their delivering such shares to the bank.</p> <p>Same—Conditions—Covenants—Bbeaoh—Kioi-ect.</p> <p>2. Where, in a contract for the sale of corporate stock, the sellers agreed that they would not engage in the general merchandise business in a city named or within twenty miles thereof within twelve months, that they would not do or suffer anything to be done or said adversely affecting the business of the corporation, but would aid the purchasers in advice or explanation concerning the business when requested, and promote the general welfare of the company, such stipulations were not conditions precedent, the performance of which the sellers were bound to prove to entitle them to recover the purchase money of the stock, but were at most covenants, a breach of which would constitute no defense to such action, but only conferred on the buyers a right of action for damages.</p> <p>Same—Actions—Pleading—Defenses—False Representations.</p> <p>8. A defense to an action for the purchase price of corporate stock, that the sale was induced by plaintiffs’ fraudulent representations, only alleging that the representations were false, was insufficient, without a further allegation of fact showing in what respect or to what extent they were false.</p> <p>Same—Executed Contract.</p> <p>4. Where a contract for the sale of corporate stock, for the price of which the action was brought, was executed on the sellers’ part, the defense of fraud and deceit in the sale was not available as a bar, unless a rescission of the contract was pleaded, or an entire failure of consideration was shown.</p> <p>Same—Stock—Sales—Rescission for Fraudulent Representations —Recovery of Price Paid.</p> <p>5. Purchasers of corporate stock, when sued for the price, were not entitled by way of counterclaim to recover the price paid for a portion of the. stock because of alleged fraudulent representations as to the. condition of the corporation, where it was shewn that on the next day after purchasing the shares defendants sold and transferred them to a stranger for the same amount they had paid for the stock, unaccompanied by any evidence of an obligation on their part to take back the stock, or make good what they had received therefor, they having induced the latter to indorse the stock so that they might make good their pleaded offer to return possession thereof.</p> <p>Same—Sales—Rescission—P'raud.</p> <p>6. Evidence that defendants, soon after having made the purchase which they claim a right to rescind for the sellers’ fraud, sold the property to others for the same amount paid, destroys any inference of damages, unless it is averred and shown that defendants were engaged in the business of buying and selling for profit, and bought for that purpose.</p>

From Multnomah: John B. Cleland, Judge. The defendant, Joe Young, was convicted of the crime of assault with a dangerous weapon, and from the judgment and sentence which followed, he appeals.

From Linn: William Galloway, Judge. This is a suit by F. S. Van Buskirk and others against A. B. Bond, to enjoin an alleged public nuisance. From a decree in favor of plaintiffs, the defendant appeals. Statement by Mr. Justice Moore. This is a suit by private parties to enjoin an alleged public nuisance.

<p>From Marion: George H. Burnett, Judge.</p> <p>Suit by F. J. Eldriedge, to have a deed, absolute in form,- decreed to be a mortgage. From a decree in favor of plaintiff, defendant appeals.</p>

From Baker: William Smith, Judge. This is an action of ejectment by W. J. May against Keuben Emerson, and from a judgment in favor of plaintiff, the defendant appeals. Statement by Me. Justice Eakin. This is an action of ejectment, commenced on October 23, 1907, to recover the possession of lots 35 and 36, in block 11, Stewart’s second addition to Baker City.

From Jackson: Hiero K. Hanna, Judge. This is an action by Joe Hoskins against William Scott. From a judgment in favor of plaintiff, defendant appeals. The action was for breach of defendant’s contract to furnish plaintiff an engine and engineer to run a threshing machine previously purchased from defendant.

From Multnomah: Calvin U. Gantenbein, Judge. The defendants, Belle Waymire and E. E. Radding, were indicted, tried and convicted upon an information charging them with an indecent and immoral act, . in violation of Section 1930, B. & C. Comp., and from the judgment and sentence that followed, they appeal. Statement by Mr. Chief Justice Bean.

From Lane: James W. Hamilton, Judge. This is an action by George W. Scott and H. A. Hammond, as executors of the last will and testament and estate of Church Sturtevant, deceased, against Eva Ford. From a judgment in favor of plaintiffs, defendant appeals. Statement by Mr. Commissioner King. This .is an action for the recovery of money alleged to have been paid by plaintiffs to defendant through mistake, and is here on appeal for the second time.

From Baker: William Smith, Judge. This is an action by A. E. Eaton against Edward Blackburn and C. H. Breck, co-partners, doing business under the firm name and style of Blackburn & Breck. The cause was tried before a jury, and a verdict rendered in favor of the defendants, and from the judgment rendered thereon, plaintiff appeals. Statement by Me. Chief Justice Bean. This is an action to recover the purchase price of ■ two car loads of hay.

From Lake: Henry L. Benson, Judge. This is a suit by Ellen Jones, executrix of the last will and testament of D. R. Jones, deceased, Minnie Wallace, Alice Laird, David R. Jones, Jr., Sallie Riggs, Ellen Jones and Ellen Jones, Jr., against the California and Oregon Land Company, to quiet title to certain lands in Lake County, Oregon. From a decree in favor of defendant, plaintiffs appeal. Statement by Mr. Justice Eakin.

From Malheur: George E. Davis, Judge. This is an action by the Caldwell Banking & Trust Company, against F. L. Porter, Thomas Jones and E. H. Test, co-partners, doing business under the firm name of Porter, Jones & Test, defendants, in which action the First National Bank of Ontario was summoned to appear and answer as garnishee. From a directed verdict in favor of plaintiff, and the judgment rendered thereon, the defendant garnishee appeals.

<p>Trusts—Action for Accounting—Evidence—Findings of Referee-Existence of Trust.</p> <p>In a suit for accounting for timber sold from land claimed to have been conveyed to defendant In trust for himself and plaintiff, the evidence examined, and held to sustain the findings that the land was conveyed to defendant for a valuable consideration and for his individual benefit.</p>

<p>Money Received—Money Wrongfully Obtained—Payment to Protect Property.</p> <p>Where defendant loaned plaintiff a sum to discharge a trust deed, taking the land as security, on condition that plaintiff would pay a note due defendant from plaintiff’s brother, plaintiff cannot, upon paying liis own debt, recover from defendant the amount paid on his brother’s note, under the rule that one, Illegally compelled to pay money to obtain possession of property or prevent its seizure, may recover it in an action for money had and received, since plaintiff voluntarily assumed payment of the debt, with full knowledge of the facts.</p>

<p>Sales—Contracts—Mutual and Dependent Undertakings—Performance.</p> <p>1. Where the undertakings of the parties to a contract of sale of personalty are mutual and dependent, and are to be performed concurrently at a time and place specified, the seller is not bound to deliver the goods until they are paid for, and the buyer is not bound to pay until they are delivered.</p> <p>Same.</p> <p>2. Where both parties to a contract ,of sale, whereby payment and delivery are concurrent, were present at the time and place fixed for performance, a 'party desiring to enforce the contract, or recover for nonperformance by the other party, must show performance on his part or an offer to perform.</p> <p>Same.</p> <p>3. Where a party to a contract of sale, whereby payment and delivery are concurrent, to be performed at a specified time and place, is absent, the adverse party, to recover for nonperformance, need only show that he was able, ready, and willing to perform, and in case the adverse is the buyer, it is only necessary for him to show that it was within his power to produce the money, if it had been required, in case the seller had been present and able to deliver.</p> <p>Same.</p> <p>4. Whether a buyer in a contract of sale of hops, whereby payment and delivery were concurrent, was at the time and place specified for performanee, able and ready to pay, authorizing a recovery for the failure of the seller not present to perform, held, under the facts, for the jury.</p>

<p>Executors and Administrators—Powers of—Settlement of Claims.</p> <p>1. At common law an executor and administrator has absolute power of disposal of the personal effects of decedent and may compromise any claim.</p> <p>Same.</p> <p>2. Since Section 1168, B. & C. Comp., prohibiting the sale of property by an administrator except on an order of the court, applies only to tangible property, and since Section 1211, authorizing the compounding of debts, applies only to those of insolvent debtors, the power of an administrator as to unliquidated claims for. damages remains at common law, and he may liquidate and accept settlement of such a claim without authority from the county court.</p> <p>Death—Actions for Death—Persons Entitled to Sue.</p> <p>3. Under Sections 379,881, B. & O. Comp., authorizing an action for negligent death by the personal representatives of decedent, etc., the heirs of the decedent have no remedy for damages for his death, and they have no direct interest in the claim therefor, and the amount recovered is the property of the estate of decedent.</p> <p>Release—Effect—Question for Jury.</p> <p>i. A release of a claim against a carrier for the death of a passenger^ which stated that plaintiff, who was decedent’s administrator, released “for myself, my heirs, executors, and administrators,” etc., and which acknowledged payment of the liability of the carrier not only in plaintiff’s own interest but in the interest of his mother, brother, and sisters, and that he was appointed administrator because he could not individually receipt for the payment, and which was signed by plaintiff as administrator of decedent, bound the estate, as it alone was entitled to receive the money paid. However, where the release was ambiguous, and it was doubtful whether decedent’s estate was bound thereby, the question whether it was bound was for the jury.</p> <p>Equity—J urisdiction—Fraud.</p> <p>5. The general rule that courts of equity and courts of law have concurrent jurisdiction over fraud, is subject to the exception that, where the remedy at law is not adequate, resort may be had to equity.</p> <p>Fraud-Relief at Law.</p> <p>6. The rule that law relieves against fraud negatively by preventing either a recovery or a defense founded upon an instrument induced by fraud, and that fraud may be pleaded at law when the relief sought is such as can be effected by a judgment is general as to all contracts not under seal; but at common law there is an exception to the rule in the case of sealed instruments.</p> <p>Release—Execution at Common Law.</p> <p>7. A release at common law must be under seal.</p> <p>►Same— Fraud.</p> <p>8. At common law a release cannot be questioned in. an action at law, except for fraud affecting its execution, and for fraudulent representations affecting the consideration, equity alone can give relief.</p> <p>Contracts—Fraud—Sealed Instruments.</p> <p>9. Under Sections 686, 765,767, B. & 0. Ooinp., defining “primary evidence” as that which suffices for the proof of a particular fact until contradicted, declaring that a seal affixed to a writing is primary evidence, and that an agreement without a seal for the settlement of a controversy is as obligatory as if a seal were affixed, an instrument under seal may be attacked at law for fraud in the consideration as well as for fraud in the execution, since a seal is only prima facie evidence of a consideration.</p> <p>Fraud-Statement of Opinion.</p> <p>10. A statement of an opinion is necessarily based on a fact, or carries with it such an inference of fact that it can be. interpreted as a statement of fact, and where it is known to be false, and made with intent to deceive, it may be actionable.</p> <p>• Release—Fraud—Pleading.</p> <p>11. A pleading that a release of a claim for negligent death was not binding because procured by fraud because defendant’s attorney, having knowledge of the cause of the accident, falsely stated that defendant was not iiable for decedent’s death, and that plaintiff need not go to the expense of looking up the facts or seek advice, but urged plaintiff to act on the opinion, may be interpreted as charging a representation of a fact, and evidence in support thereof must be submitted to the jury.</p> <p>Contracts—Fraud—Relief at Law.</p> <p>12. Where a simple contract is induced by fraud, the defrauded party may rescind without the aid of equity, and may plead the fraud in defense of an action to enforce it or for damages for its breach.</p> <p>Same—Sealed Instruments.</p> <p>18. Under the statute reducing sealed instruments to the footing of simple contracts that express consideration, fraud, in the consideration of sealed instruments is recognized at law, and a defense of fraud is not exclusively an equitable defense.</p> <p>Arbitration and Award—“Award’’—Nature.</p> <p>14. An “award” is a final judgment, both at law and in equity, and cannot be classed with contracts, sealed or unsealed.</p>

<p>Chattel Mortgages—Advances—Breach of Contract—Foreclosure</p> <p>1. Where a chattel mortgagee agrees to advance a definite amount, but only a portion thereof is advanced, the mortgagee may nevertheless foreclose the mortgage for the amount due, subject to a set-off for any damages the mortgagor may have suffered by reason of the mortgagee’s failure to advance the whole sum.</p> <p>Landlord and Tenant—Cropping Contract—Nature op Relation.</p> <p>2. A lessor and lessee under a cropping contract are tenants in common in the crop, and if the lessee mortgages his interest, the mortgagee is subrogated only to the lessee’s rights and interest, and to the extent of his mortgage is a tenant in common with the lessor, so that, in order to claim as against the lessor, the mortgagee must fulfill the lessee’s contract.</p> <p>Same—Preservation—Lien por Advances.</p> <p>8. Plantiffs leased certain land to G. for hop culture for one-third of the crop, which it was G.’s duty to harvest and bale. G. mortgaged his tyvo-thirds to defendants to secure $1,500 advances to enable him to make the crop, but defendants, after advancing S700, refused to advance further sums, and, G-being unable to procure pickers! plaintiffs procured and paid them under an agreement with defendants’ agent to pay the pickers when the work was finished. Held, that -plaintiffs were not compelled to care for the crop in fulfillment of G.’s agreement in the mortgage for defendants’ benefit to do so, but were entitled to advance money to harvest the whole crop in order to protect their own interest, so that G.’s share was applicable, first, to the payment of the costs and disbursements of the suit; second, to plaintiff's claim for advances; and, third, to the payment of defendants’ mortgage.</p> <p>Same—Enforcement—Pleading—Variance.</p> <p>4. Where a complaint alleged that a tenant under a cropping contract delivered the crop to the landlords as a pledge to secure money advanced by the latter to harvest the crop, and also that the tenant was unable to procure the labor to care for the crop and requested the landlords to assist him, and that they rendered services, hired laborers, and that defendants, mortgagees of the tenant’s interest, directed and requested plaintiffs to cause the hops to be picked and baled, and agreed to pay the expenses, evidence that plaintiffs harvested the crop with tenant’s consent, and were holding the same accordingly, was not a variance.</p> <p>Same—Cropping Contract—Mortgages.</p> <p>5. Where a tenant under a cropping contract mortgaged his share of the crop, and was thereafter unable to procure funds with which to harvest the crop, which funds were thereupon advanced by the. landlords, the fact that the harvesting was done by the tenant, would not defeat the landlords’ right to priority for the amount so advanced as against the mortgagee.</p> <p>Landlord and Tenant—Equitable Liens.</p> <p>6. Where a tenant agreed to make a crop and deliver one-third thereof to the landlord as rent, the landlord owned an undivided interest in every part of the crop, and his interest therein is as extensive as if it were a lien, and lie is entitled to equitable protection as though a lienor.</p>

<p>Electricity—Injuries to Third Person—Actions—Instructions.</p> <p>1. In an action against an electric company for the death of plaintiff’s intestate, an instruction that, if the accident was due to intestate’s want of care directly contributing to the accident, plaintiff could not recover, and if intestate knew the wire was broken, and, without cause, went near the wire out of curiosity, and carelessly came into contact with it and was killed, plaintiff could not recover, was not argumentative, and properly stated the law under the facts.</p> <p>Same—Contributory Negligence—Care Required.</p> <p>2. If intestate’s death was due to his own “want of prudence or ordinary care” or “want of due care and caution,” he cannot recover.</p> <p>Trial—Instructions—Requisites—More Specific Instructions.</p> <p>3. In an action for negligence, if plaintiff desires the trial court to define the terms “due care and caution” or “want of prudence and ordinary care” used in an instruction on contributory negligence, she must request it to do so.</p> <p>Electricity—Actions —Contributory Negligence —Sufficiency of Evidence.</p> <p>4. Evidence held to show that intestate kenw the charged electric wire by which he was injured was hanging on the fence, and that he carelessly came i n contact with it.</p> <p>Same—Instructions—Construction.</p> <p>5. An instruction that if intestate knew the wire by which he was injured was broken, and was warned by his employer that, if he went near it, he might be killed, but disregarded the warning, and was lolled by contact with the wire, he could not recover, was not objectionable as being a charge that disregard of instructions of his employer, who was a third person, would of itself be contributory negligence, but only charged that plaintiff could not recover if intestate knew of the danger, and voluntarily exposed himself to it.</p> <p>Same.</p> <p>6. Where plaintiff’s intestate and another went from their work to a broken electric wire hanging on a fence in order to try it, and intestate, either by design or accident, came in contact with the wire, and was killed, plaintiff could not recover against the electric company.</p> <p>Instructions—Exceptions to.</p> <p>7. Where instructions are complained of and the exceptions are general, the objections are unavailing; the proper practice being to call the court’s attention to the contention that the instruction is abstract or irrelevant, and ask that it be withdrawn; and, if the request is denied, to except to such ruling.</p> <p>Appeal and Error — Harmless Error — Affecting Party Not Entitled to Success.</p> <p>8. Where the verdict was for defendant, and the evidence was sufficient to justify a finding of contributory negligence, as a matter of law, a judgment for defendant should be affirmed on appeal, notwithstanding any errors in instructions.</p>

<p>Elections — “General Elections” — Offenses — Statutes—Construction.</p> <p>f. Under Local Option Law (Sess. Laws 1905, p. 44), providing for a local option election on the first Monday of June of any year, to be held at the regular voting places and by the regular judges and clerks of election, and declaring that Section 1907, B. & O. Oomp., shall be applicable to such elections, a local option election held during a year in which the 'general election is held, is a “general election” wdthin Section 1907, providing that any person who shall induce another to come into any precinct with intent that he shall vote at any general election, at a place where he is not a resident, shall be punished, and proof that the accused induced a voter to remove into a precinct of which he was not a resident, to vote on the liquor question at the general election of the year, and that the voter voted, not only on the liquor question, but for the State, district, county, and precinct officers also, showed a violation of the statute.</p> <p>Same.</p> <p>2. The purpose of Section 1907, B. & 0. Oomp., providing that one who shall induce a voter to come into any precinct with intent that he shall vote at any general election, at any place where he is not a resident, shall be punished, is to prevent colonization of voters; and hence the inducing of a voter to remove into any precinct of which he is not a resident, with the intention of voting there, by the use of the ballot provided for, and in use at the general election, constitutes the gravamen of the offense.</p> <p>Same—Evidence.</p> <p>8. On a trial for inducing a voter to come into a precinct with intent that he shall vote therein, at a general election, in violation of Section 1907, B. & 0. Oomp., the issue is whether the voter was persuaded by accused to go into the precinct with such intention, and whether such a precinct was one in which the voter was not previously a resident, and evidence of legal advice received by accused or of precautions he took to ascertain whether, by making the change, the voter would be a legal voter in such precinct, is immaterial.</p> <p>Criminal Law—Trial—Conduct oe Court.</p> <p>4. The judge, in the trial of a criminal case before a jury, should not express his personal views or feelings as to the guilt or innocence of accused.</p> <p>Same—Harmless Error.</p> <p>5. Where the facts constituting a violation of Section 1907, B. & C. Comp., providing that one who shall induce a voter to come into a precinct, with intent that he shall vote at an election at a place where he is not a resident, shall be punished, were not only established by the State, but conceded by accused, the misconduct of the trial judge, consisting of expressions of his opinions as to the guilt of accused, was within Section 1484, requiring the court on appeal to give judgment regardless of technical errors, since under the express provisions of Section 857, subd. 1, the power of the jury to pass on the effect of evidence is not arbitrary, but must be exercised with legal discretion.</p> <p>Same—Harmless Error—Erroneous Admission oe Evidence.</p> <p>6. Where the facts essential to a conviction, under Section 1907, B. & C. Oomp., providing that one inducing a voter to come into a precinct with intent to vote at a general election at a place where he is not a resident shall be punished, were established by the State and conceded by accused, the error, if any, in admitting evidence that accused induced other persons to go into the precinct at the same time, and for the same purpose, was within Section 1484, requiring the court on appeal to disregard technical errors.</p> <p>Same—Instructions—Assumption oe Pacts.</p> <p>7. It is not prejudicial error for the court to give to the jury the conceded facts and the law applicable thereto, and remarks of the court, correctly stating the law and application of admitted facts thereto, though given in an improper manner, and calculated to convey to the jury its belief of the guilt of accused, cannot be ^presumed prejudicial, unless it appears that as to some of the essential elements of the crime, there was some dispute as to the facts essential to establish the crime.</p> <p>Same—Instructions—Obligations of Jury.</p> <p>8. It is the duty ol the court in a, criminal case to instruct the jury as to the law, and it is the duty of the jury to apply the facts found by it to the law as given by the court.</p> <p>Same—Direction of Verdict—Authority of Court.</p> <p>9. In a criminal ease, after a plea of not guilty, the court cannot direct a verdict for the State, however clear the proof of guilt may be.</p> <p>Same—New Trial—Authority of Court.</p> <p>10. Under Constitution of Oregon, Art. I, §§ 12, 16, providing that no person shall be put in jeopardy twice for the same offense, and the jury in criminal eases shall have the right to determine the law and the facts, under the direction of the court as to the law, the jury in a criminal case may return a verdict of not guilty, however clear the proof of guilt may be, and the court is without power to order a new trial by reason thereof.</p> <p>Same—Presumptions.</p> <p>11. The presumption is that juries do their duty, and the court on appeal must assume that a jury found in accordance with the law, and conceded facts under the interpretation of the law as given by the court.</p>

<p>Appeal and Error — Undertaking — Sufficiency — Signature op Appellant.</p> <p>1. Under Section 550, B. & 0. Comp., providing that the undertaking of an appellant shall be given with one or more sureties, etc., appellant need not sign an undertaking on appeal; and, where a joint notice of appeal is signed by each appellant by their attorneys, and a joint undertaking on appeal is executed by one of the appellants and sureties, a joint .appeal is perfected, as against the objection that the other appellant did not sign the undertaking.</p> <p>•Same—Joint Appeal—Transcrept.</p> <p>2. On a joint appeal one transcript is sufficient.</p> <p>Mortgages—Absolute Deeps as Mortgages—Parol Evidence.</p> <p>8. A deed absolute on its face may be shown by parol to be a mortgage.</p> <p>Same—Presumptions.</p> <p>4.The burden of showing that a deed was intended as a mortgage rests on the one who asserts that fact, which must be shown by clear and satisfactory evidence.</p> <p>Same.</p> <p>5. The rule that, where the result of the evidence on the issue whether a deed, absolute on its face was a mortgage, is to produce doubt, the courts incline to construe the transaction to be a mortgage, applies where there is an agreement to reconvey.</p> <p>Same—Intention of Parties.</p> <p>6. Whether a deed absolute on its face was intended as a mortgage, depends on the intention of the parties as determined from a consideration of the circumstances, the pecuniary relation of the parties, their previous negotiations, tlieir contemporaneous acts and declarations, and subsequent acts and admissions.</p> <p>Same.</p> <p>7. On the issue whether a deed absolute on its face was intended as a mortgage, the subsequent acts and admissions of the parties must be considered as evidence corroborative of a previously existing intent shown to exist.</p> <p>Trusts—Resulting Trusts.</p> <p>8. A mortgagor to save foreclosure costs, conveyed the premises to the mortgagee, who gave to the mortgagor an option to repurchase within a specified time. After the expiration of the option, the mortgagee executed a bond for deed to a third person. The mortgagor who induced the third person to purchase did not assume any obligation to pay the consideration or any part of it. Held, that the mortgagor had no equitable interest in the contract of purchase.</p> <p>Kbauds, Statute of—Sale of Land — Contbact — Abandonment — Necessity of Wbiting.</p> <p>9. A written contract to convey land may be abandoned by parol.</p> <p>Mortgages—Absolute Deeds as Mortgages—Evidence—Sufficieny.</p> <p>10. Evidence held not to show that a deed absolute on its face was a mortgage.</p>

<p>Depositions—Suppression—Motion—Time to Make.</p> <p>1. Under Section 408, B. & O. Oomp., providing that obiections to depositions, other than obiections based on the inconipetency oí the witness and the testimony, shall bo taken by exceptions filed within 10 days from the closing of the testimony and before the first day of the next term; a motion to suppress a deposition on the ground that it was not taken before the referee appointed by the court, that it did not appear that the witness was sworn, that the commission to take the testimony was not made a part of the record, etc., comes too late when not made in the time specified by the statute.</p> <p>Deeds—Delivery—1Time of Taking Effect.</p> <p>2. Where a deed is executed and placed in the hands of a third person for delivery to the grantee without the grantor reserving to himself any control over it, and it is delivered, the title passes to the grantee at the time of the last delivery, though not delivered until after the grantor’s death, and, if necessary to protect the grantee, the title will relate back to the date of the the first delivery.</p> <p>Escrows—Delivery—Condition.</p> <p>3. A grantor, without any previous understanding with the grantee, deposited the deed with a third person for delivery when the grantee paid to a person named, a specified sum. The deed contained a condition that the specified sum should be paid to the person named. The grantor died before the grantee assented to the condition. Held, that the tender of the deed through the third person for delivery on compliance with the condition was an offer which the grantor could withdraw at any time before acceptance by the grantee, and the grantee could not after the death of the grantor accept and perform the condition and demand delivery.</p> <p>Deeds—Assent of Parties—Necessity.</p> <p>4. The binding force of a deed depends upon the mutual assent of the parties to it, without which there can be no delivery.</p> <p>Escrows—D bliver y—Conditions.</p> <p>5. A grantor, when depositing a deed with a third person for delivery to a grantee, may, without awaiting the grantee’s consent, annex such conditions thereto as he sees fit, and the grantee is entitled to a delivery only on compliance with the conditions.</p> <p>Dee ds -Delivery .</p> <p>6. While no particular formalities are essential to constitute a proper delivery of a deed, it is necessary that a grantor should expressly or impliedly consent thereto.</p> <p>Wills—Nature of Instrument.</p> <p>7. Instruments in the form of deeds conveying real estate and a bill of sale conveying personalty on specified conditions, and not intended to operate as a will, cannot be construed to be testamentary in character.</p> <p>Escrows—Delivery.</p> <p>8. A deed, providing for a payment by the grantee as a condition precedent to delivery, was deposited with a third person for delivery on the grantee complying witli the condition. Before acceptance by the grantee of the condition, the grantor died. Held, that the third person, until acceptance by t.he grantee of the condition, was the agent of the grantor only, and, as his agency was not coupled with an interest, it.ceased on the death of the grantor, and the third person could not thereafter make a delivery to the grantee.</p> <p>Cancellation of Instruments—Tender of Consideration Received —Necessary.</p> <p>9. Where parties seeking to set aside deeds and a bill of sale on the ground of fraud were entitled to the money received in part payment on account of their right to a distributive share in an estate, and defendants could at most only claim that the money had been prematurely advanced to such parties, the failure to offer to return the money did not defeat the right to maintain the action.</p> <p>Same.</p> <p>10. Where a grantee voluntarily paid a specified sum to a third person to procure possession of deeds and a bill of sale, heirs of the grantor, who sued to set aside the instruments on the ground of fraud, were not required to return, or offer to return, to the grantee the money paid.</p> <p>Same—Laches.</p> <p>11. A suit was brought in January, 1902, to set aside deeds and a bill of sale executed in October, 1894, and received by the grantee and recorded in December, 1895. The claim of the grantee to hold the property absolutely, instead oí complying with the trust under which the instruments wore executed, was not brought to the attention of plaintiffs until within a short time before the commencement of the suit, and such claim had not existed for more than 2¥> years before that time. Held, that the right to maintain the suit was not barred by laches.</p> <p>Executors and Administrators—Actions—Liability for Costs.</p> <p>12. A personal representative, who sues or defends in any proceeding, which he can bring or defend in such capacity, is not personally liable for the costs on his being defeated in the contest, unless it clearly appears that he is not acting in good faith, or that he intentionally subjected the opposition to expenses additional to what otherwise would have been necessary to protect his rights in the controversy, or that the suit is wanton and groundless.</p> <p>Executors and Administrators—Actions—Liability for Costs.</p> <p>13. Where, in a suit to set aside deeds and a bill of sale brought against a defendant in his representativo capacity as administrator, it appears that defendant took the instruments with actual knowledge of the purpose for which they were given, knowing that they were intended to convey title in trust only, and that he repudiated the trust, the court, in taxing costs against him individually on decreeing a cancellation of the instruments, did not abuse its discretion.</p> <p>Appeal and Error—Discretion of Court—Costs.</p> <p>14. The taxation of costs are reviewable only for abu.se of discretion of the. trial court.</p> <p>Same’</p> <p>15. In a suit to set aside deeds and a bill of sale, brought against a defendant in his capacity as administrator, who was a proper party, and who in good faith unsuccessfully defended the action to protect the interests of the estate, he was improperly charged with the costs in his individual cacacity.</p> <p>Appeal and Error—Disposition of Cause—Affirmance—Effect on Findings of Trial Court.</p> <p>16. The affirmance of the trial court’s decree does not necessarily sustain all of its findings of fact.</p> <p>Descent and Distribution — Nature and Course — Realty and Personalty.</p> <p>17. Under Section 1147, B. & 0. Comp., giving the executor or administrator the possession and control of all of decedent’s property until administration is completed, and Section 1221, providing that decedent’s real property is the property of the heirs or devisees, subject to the possession of the executor or administrator to satisfy claims against the estate, and upon the determination of the administration the unappropriated part is discharged from such possession without any order therefor, the title to realty passes directly to the heirs as tenants in common, subject to the administrator’s possession to pay debts, but the personal property goes to the administrator by operation of law.</p> <p>Courts— Probate Courts—County Courts—Administration or Deoe. dent’s Estate—Personae Property</p> <p>18. The county'court has .exclusive jurisdiction of the personal property of a decedent’s estate and of the determination of what constitutes the personal estate and of the respective shares of the heirs therein, and such matters cannot be determined in a suit by heirs to set aside a conveyance by decedent.</p>

This is a proceeding by the State of Oregon, on relation of the Grievance Committee of the State Bar Association, for disbarment of Marion K. Biggs, a duly admitted and practicing attorney of this court. The defendant files a demurrer to the information.

<p>Discovery—Examination Before Trial—“Party.”</p> <p>1. Section 826, B. & O. Comp., authorizing the taking of the deposition of a “party” to an {action before trial, does not authorize the taking of the deposition of the secretary of the defendant corporation, where such secretary was not individually a party.</p> <p>Same—Subjects of Examination.</p> <p>2. Section 826, subd. 1, B. & 0. Comp., authorizing the taking of a deposition of a party before trial, only authorizes his examination with reference to matters pertinent to the issue, and does not contemplate compelling the party to disclose the names of his witnesses, the manner in which he expects to establish his case, or confidential reports or communication of his agent in relation to the controversy.</p> <p>Carriers—Injuries to Passengers—Street Railroads—Premature {¿tart.</p> <p>8. In an action for injury to a street car passenger while alighting from a moving car, evidence held insufficient to sustain a verdict, either on the theory of defendant’s negligence in suddenly starting the car while plaintiff was alighting, or in failing to warn her that the car had not stopped.</p> <p>Same—Contributory Negligence.</p> <p>4. Where plaintiff attempted to alight from a moving street car, without any necessity or invitation, and was injured, she was negligent as a matter of law.</p> <p>Same—Failure to Warn.</p> <p>5. The conductor of a street car was not negligent in failing to warn plaintiff against attempting to alight before the car stopped, where the conductor did not know and had no reason to believe that she intended to do so.</p> <p>Same—Res Ipsa Loquitur.</p> <p>6. That a passenger on a street car was injured by alighting before the car stopped, did not of itself constitute a prima facie case of the carrier’s negligence.</p>

<p>Pleadings—Admissions—Effect.</p> <p>1. A plaintiff is not precluded, by a reply denying the averments in the answer from relying on the averments as an admission, and he need not prove what defendant expressly admitted in the answer.</p> <p>Negligence—Contributory Negligence - Question for Juey.</p> <p>2. Contributory negligence is for the jury, when there is a conflict in the evidence, or when different inferences may be drawn from the undisputed facts; and it is only when the facts are undisputed, and only one inference can be drawn therefrom, that the question is for the court.</p> <p>Municipal Corporations — Obstruction of Sidewalk—Injury to Pedestrian—Contributory Negligence—Question for Jury.</p> <p>3. A traveler on a sidewalk, about 8:30 o’clock in the evening, who, while her attention was diverted from the walk in front of her to see whether a car she desired to board was approaching, tripped and fell over an obstruction on the walk of which she had no knowledge, was not as a matter of law guilty of contributory negligence.</p> <p>Municipal Corporations — Obstruction of Sidewalk — Injury to Pedestrian—Contributory Negligence.</p> <p>4. A traveler on a public walk may assume, in the absence of a notice to the contrary, that the walk is safe; but he must use his senses and take reasonable care to avoid danger, and where he has notice that a walk is obstructed he must act accordingly.</p>

From Jackson: Hiero K. Hanna, Judge. This is a suit by Emily Clark and another against W. J. Boosey and others to establish the east line of plaintiffs’ and the west line of defendants’ land; to determine an adverse claim to a small strip of land lying south of defendant’s premises, and to enjoin defendants from trespassing upon or in any manner interfering with plaintiffs’ possession thereof. From a decree in favor of plaintiffs, defendants appeal.

<p>Cancellation op Instruments—Mental Incompetency —Consideration.</p> <p>1. In suing to avoid a deed on account of the grantee’s fraud and plaintiff grantor’s mental incapacity, plaintiff need not show that the deed was made without consideration or for an inadequate consideration, though, had she relied solely upon want of consideration, she must have shown that fact, or» had she relied upon constructive fraud, she must have shown what the consideration was and an offer to return it.</p> <p>Insane Persons—Evidence—Presumptions.</p> <p>2. Generally one is presumed to be sane, and the burden is upon one asserting the contrary to prove it; but the appointment of a guardian for one alleged to be insane by a court having jurisdiction creates a presumption of insanity.</p> <p>Insane Persons—Evidence—Sanity—Adjudication—Effect.</p> <p>3. An adjudication of insanity is not necessarily evidence of insanity at a prior time, but when it is shown that the person’s condition has been the same for a long time, and was the same at the time of the act to be affected by it as when the adjudication was made, the adjudication is evidence of previons insanity, and whore mental weakness and incapacity are the concomitants of old age, and have been gradual and continuous for a long time* and not the result of any recent or intervening cause, such evidence is proper to show that the conditions were the same as when the adjudication was made.</p> <p>Deeds—Grantor’s Mental Incapacity-Evidence—Burden of Proof.</p> <p>4. In an action to cancel a deed for plaintiff grantor’s mental incapacity, it appeared that the deed covered practically all her property; that she was adjudged Incompetent 10 days after making the deed; that she was 70 years old, and for some time prior thereto had been suffering mental and physical decline. Held that, under such facts, the admission in the answer of the adjudication placed the burden on defendant to plaintiff’s competency, and that defendant did not defraud plaintiff.</p> <p>Deeds — Execution — Grantor’s Mentad Capacity — Evidence — Weight</p> <p>5. Evidence held to show that a grantor was not mentally competent to comprehend the nature of the transaction in which she executed her deed.</p>

From Marion: William Galloway, Judge. Statement by Mr. Commissioner King. This is a suit to foreclose a mortgage executed by defendants P. A. Shipley and Elizabeth Shipley, his wife, to plaintiff, on lots 1, 2, 7, and 8, in block 35, and lots 1 and 2, in block 38, in University Addition to Salem, Oregon.

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice Moore.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Moore. This is a suit by the City of Eugene, a municipal corporation, against the Willamette Valley Co., a private corporation, to enforce the specific performance of a contract to convey real property. The complaint states generally that the charter of the City of Eugene, filed in the office of the Secretary of State, February 18, 1905 (Sp.

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Justice Eakin. As disclosed by the amended complaint, this is a suit brought by the State against the defendant, as successor in interest of the Willamette Falls Canal & Lock Co., which we shall hereafter refer to as the “first company,” to recover the 10 per cent of the net profits arising from tolls collected on the canal and locks at Oregon City, as provided by an act of the legislature of the year 1870.

<p>Appeal and Error—Right to Review—Conduct—Affecting Right-Motion to Dismiss—Evidence.</p> <p>1. Evidence dehors tlie record Is admissible In the Supreme Court to show that since'a decree was rendered appellant has so dealt with the subject-matter of the suit as to preclude liim from further asserting his alleged right on appeal.</p> <p>Release—Operation—Release op Right to Relief for Injuries to Property.</p> <p>2. Plaintiff in a suit to enjoin the maintenance of a dam in a stream by which liis land was overflowed, so that about 15 acres of the entire tract was rendered useless, after dismissal of the suit, executed Ea deed to defendant to 29 acres of the land along and through which the stream flowed. Held, that he thereby released to defendant all claim to injunctive relief as to the entire tract, as well as to damages for injuries thereto; there being no reservation of a right to a continuation of equitable intervention as to the land not conveyed.</p> <p>Appeal and Error—Right to Review —Conveyance affecting Right—Dismissal.</p> <p>8. Where, in a suit to enjoin the maintenance of a dam resulting in injury to about 15 acres of plaintiff’s land, complainant, after judgment of dismissal, conveyed 29 acres of the land through which the stream flowed, he was precluded from thereafter asserting his right to relief as to any of the land on appeal, and his appeal will be dismissed.</p>

<p>In a suit for divorce, where neither party is satisfied with the decree rendered by the lower court in dismissing the suit as to each, and both appeal, evidence examined, and 7xeld, that neither plaintiff or defendant is entitled to a divorce.</p>

From Multnomah: Arthur L. Frazer, Judge. Statement by Mr. Commissioner Slater. This is a suit to foreclose a mechanic’s lien, and was instituted by B. D. Coffey, as original contractor, against O. M. Smith, who, it is alleged, is the owner of the dwelling house, the subject-matter of the lien, and the reputed owner of the lot upon which it was built, viz. lot 2, block 11, West Piedmont, in Multnomah County.

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Suit by B. D..Coffey against Anna Stock, O. M. Smith et al. to establish and foreclose a mechanic’s lien. From a decree in favor of plaintiff, defendants appeal.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Suit by B. D. Coffey against C. U. Willoughby, O. M. Smith- et al. to establish and foreclose a mechanic’s lien. From a decree in favor of plaintiff, defendants appeal.</p>

From Coos: James W. Hamilton, Judge. This is an action in ejectment by the Coquille Mill & Mercantile Co. against Alfred Johnson and the Johnson Lumber Co. From a judgment rendered upon a verdict in favor of the defendants, plaintiff appeals. Statement by Mr. Commissioner Slater.

From Grant: George E. Davis, Judge. This is a suit by C. G. Guernsey and R. A. Clark, against R. R. McHaley, County Judge, and the County Commissioners of Grant County, Oregon, to enjoin them, as such officers, from making an order prohibiting the sale of intoxicating liquors in said county, in accordance with the result of an election held therein, on the 1st day of June, 1908. From a decree in favor of defendants, plaintiffs appeal. Statement by Mr. Chief Justice Bean.

<p>Parties—Defects—Misjoinder—Sufficiency of Demurrer—“Defect of Parties.”</p> <p>1. “Defect of parties,” as a ground of demurrer, means too few, and not too many, and a demurrer on that ground can be interposed only for nonjoinder of necessary parties, and not for misjoinder.</p> <p>Partnership—Actions Between Partners—After Dissolution.</p> <p>2. The principle on which partners after dissolution can sue each other, as to partnership property, is that, the joint interest as partners having ceased, a new contract has been made between the parties in their individual, as distinct from their partnership characters, and hence whether two partners can jointly sue their copartner after dissolution to recover a share of former partnership property depends upon the character of the agreement of settlement among the partners.</p> <p>Action—Joinder of Causes—Actions Between Partners.</p> <p>3. A complaint, in an action by two partners against a copartner after dissolution to recover a share of former partnership property, which alleged a promise of defendant at the time of dissolution to account for and pay over to plaintiffs their proportionate share of all moneys collected from a box of merchandise (the property in dispute), was not demurrable on the ground that two separate causes of action had been improperly united, since the alleged promise was to plaintiffs jointly and not severally.</p> <p>Partnership — Actions Between Partners After Dissolution — Admissibility of Evidence.</p> <p>4. In an action by two partners against a copartner after dissolution on his express promise to pay them their share of an item of partnership property, it was not error to exclude evidence that there had been no settlement of the partnership business, and that the payment of outstanding hills was unprovided for, since, the action not being on an implied promise to pay, arising from a general settlement of the partnership business, the fact that partnership debts had not been paid was immaterial.</p> <p>Estoppel—Necessary of Pleading.</p> <p>5. In an action by partners against a copartner after dissolution to obtain a share of alleged partnership property, where defendant alleged title in himself to a half interest in the property by purchase from E., one of the partners, prior to the formation of the partnership, and plaintiff’s reply was merely a denial, they could not contend on trial that defendant was estopped to claim ownership by acquiescing in the contribution of the property by E., as his share of the partnership stock upon cominga partner, since an estoppel must he special pleaded where there has been an opportunity therefor.</p> <p>Partnership — Actions Between Partners After Dissolution — Evidence.</p> <p>6. An action by partners against a copartner after dissolution to obtain a share of property alleged to have belonged to the partnership, and which defendant had at the dissolution thereof expressly promised to divide among the partners, is in the nature of an action for money had and received by defendant to plaintiffs’ use, necessarily based upon a title theretofore existing in plaintiffs, and proof of the previous joint ownership as alleged is essential to a recovery; the mere proof of defendant’s voluntary promise at the time of the dissolution to divide the property not being sufficient.</p>

<p>Witnesses—Impeachment—Conviction op Crime.</p> <p>1. Under Section 1400, B. & 0. Oomp., permitting an accused to be a witness in Ms own behalf, and Sections 852 and 859, permitting a witness to be impeached by showing his conviction of crime, accused, as witness in his own behalf, may be impeached by showing a prior conviction.</p> <p>Witnesses—Accused as Witness—Cross-Examination—Extent.</p> <p>2. Though under Section 1400, B. & O. Oomp., giving the prosecution the right to cross-examine an accused upon all facts to which he has testified regarding his conviction or acquittal, an accused testifying in his own behalf waives the constitutional guaranty under Article I, § ll, of the Constitution of Oregon, that an accused may not he compelled to testify against himself; but the prosecution may not cross-examine him as to matters not germane to and connected with his testimony in chief.</p> <p>Witnesses—Accused as Witness—Cross-Examination—Impeachment.</p> <p>3. Under Section 1400, B. & O. Oomp., giving the prosecution the right to cross-examine an accused, testifying in his own behalf, upon all matters to which he has testified regarding his conviction or acquittal, an accused, in a prosecution for horse theft, who claims to own the horse, may be discredited by showing that he attempted to induce a witness to testify as to such ownership as of his own knowledge, when in fact he had no knowledge.</p> <p>Instructions—Technical Error in.</p> <p>4. An instruction as first given, which was technically incorrect as to the presumption of innocence of defendant, may be cured and corrected by a subsequent instruction.</p>

<p>From Umatilla: Henry J. Bean, Judge.</p> <p>The defendant, George L. Horseman, was convicted of the crime of manslaughter, committed in Umatilla County, on the 11th day of May, 1907, by shooting at and killing Clarence McBroom, and from the judgment and sentence that followed, he appeals.</p>

<p>Municipal Corporations — Construction of* Constitution — Initiative and Referendum.</p> <p>1. Constitution of Oregon, Article IV, Section 1, as amended in 1902, creates and defines the initiative and referendum powers and makes them applicable to general legislation. Section la enlarges and extends the powers to the voters of every municipality and district as to all local, special and municipal legislation, and requires the manner of exercising the powers to be prescribed by general laws, except that cities and towns may provide for the manner of exercising the powers as to their 'municipal legislation, the proportion of voters in any city or town required to exercise the powers being limited to a certain percentage. Article XI, Section 2, as amended in 1906, prohibits the legislature from enacting or amending any municipal charter then in existence. Held, that in view of the facts that the legislature is prohibited from amending municipal charters and that unless the power to amend acts incorporating municipalities, other than cities and towns, is vested in the people, they cannot be changed without a constitutional amendment, the manifest purpose of the amendments was to vest in the people of all municipalities, including cities, towns, and others, the power to amend their charters, and hence to vest the power in the Port of Portland.</p> <p>Municipal Corporations—Charters—Amendment—“General Law.”</p> <p>2. Laws 1907, p. 398, c. 226, which declares its purpose to be to carry into effect the initiative and referendum powers reserved to the people in Constitution, Article IV, Sections 1, la, as to general, local, and special legislation, and to regulate elections thereunder and to carry into effect the amendment of Article XI, Section 2, granting cities and towns the right to amend their charters, and which provides (Section 2) a form of initiative petition applicable to “any law,” and provides that the circuit court of the county in which the municipality concerned is situated shall have jurisdiction over controversies arising under the act, is a general law within Constitution, Article IV, Section la, requiring the manner of exorcising the initiative and referendum to be prescribed by general laws, except in cases of cities and towns, and is broad enough to include proceedings by initiative to amend the charter of the Port of Portland, a municipality not a city or town, but incorporated under a State law.</p> <p>Municipal Cobpobations—Incoepoeation—Special act—Amendment.</p> <p>3. The original act of incorporation of the Port of Portland declares the object of the incorporation to be “to promote the maritime, shipping and commercial interests of the Port of Portland in all manners as in this act set out and contained or as it may hereafter be thereto specially authorized and empowered,” and authorizes the incorporation to do all acts necessary or convenient m carrying out the powers granted. A law adopted by the. voters of the corporation purported on its face to be an amendment of the original act, by which the powers were extended to embrace authority to maintain a towage and pilotage service, and to purchase, lease, and operate steam tugboats and pilot boats and to issue bonds therefor. Held, that the additional powers were germane to the original purpose of the creation of the Port, and the adopted law was a valid amendment of the original act, and not new legislation.</p>

<p>Criminal Law—Instructions—Construction.</p> <p>1. An instruction in a criminal case must be interpreted in connection with the remainder of the charge.</p> <p>Homicide—Self-Defense—Provoking Difficulty—Effect. „</p> <p>2. If decedent expressed an intent to strike accused if he repeated abusive language, and on a repetition did strike him, accused, having thereupon shot decedent, cannot establish self-defense, unless he in good faith withdrew or attempted to withdraw from the conflict.</p> <p>Homicide—Instructions—Self-Defense.</p> <p>3. Evidence of a difficulty between the parties shortly before the homicide, in which decedent pushed accused against a wall and choked him, warranted an instruction that if the killing was done in a spirit of retaliation or revenge for past injury, and not because there was reasonable apprehension of impending injury, accused could not plead self-defense.</p> <p>Homicide—“Self-Defense”—Basis.</p> <p>4. The right to kill in “self-defense” is founded on necessity, real or apparent, and can only be resorted to when the circumstances are such as to warrant a reasonable belief in him assaulted, that the killing is necessary-to preserve life or to protect himself from great bodily harm.</p> <p>Homicide—Self-Defense—“Great Bodily Harm.”</p> <p>5. “Great bodily harm,” within the rule governing the right of self-defense, means more than mere injury by the list, such as is likely to occur in ordinary assault and battery.</p> <p>Homicide—Self-Defense—Right to Invoke.</p> <p>6. A threatened injury, to warrant a homicide in self-defense, must involve imminent peril to life or limb; fear of a slight injury or a mere assault not felonious furnishing no excuse, but if, considering the relative age and strength of the parties or the ferocity of the attack, the intended beating is of such character as to endanger life or limb, it will be felonious, and the assaulted person may kill if necessary to preserve his own life or protect himself from such beating.</p> <p>Homicide—Self-Defense'—Evidence—Sufficiency.</p> <p>7. Evidence in prosecution for murder held insufficient to raise the issue of self-defense.</p> <p>Homicide—Self-Defense—Rights of accused—Instruction—Conformity to Evidence.</p> <p>8. One attempting to justify a homicide on a plea of self-defense, which the evidence tends to sustain, is entitled to instructions on his theory; but, when the evidence shows murder or manslaughter, an instruction on self-defense should not be given.</p> <p>Homicide—Appeal—Harmless Error—Instructions.</p> <p>9. One convicted of murder cannot complain of errors in an instruction on self-defense, when the evidence did not raise that issue.</p>

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

<p>Appeal and Error — Discretion of Trial Court — Relief From Default — Surprise.</p> <p>1. Under Section 103, B. & O. Comp., permitting the trial court to relieve a party from a judgment, etc., taken through mistake, surprise, etc., the trial court’s discretion is not arbitrary, but should be exercised in the spirit of the statute, so as to aid substantial justice, and an erroneous exercise of this power is reviewahle.</p> <p>Judgment—Default Judgment—Relief—“Judgment Taken Through Surprise”—Grounds—Surprise.</p> <p>2. A judgment taken against a party contrary to an agreement with his adversary is one taken by surprise within Section 103, B. & 0. Comp., permitting the trial court to relieve against a “judgment taken through surprise,” etc.</p> <p>Stipulations—Authority to Make—Agency.</p> <p>8. Where a company, against which an action had been brought, was largely indebted to a bank, and had no means of settlement except its interest in a mining company, which it authorized the bank to dispose of, and the company and the bank were represented by the same attorney, and the bank* with the consent of the company and its attorney, was trying to adjust the litigation with plaintiH, so as to protect their interests, the bank, in making an agreement with plaintiff as to entry of judgment in the litigation, and other agreements as to the disposition of the property in litigation, was acting as agent for defendant company.</p> <p>Stipulations—V alidity.</p> <p>4. A letter written by plaintiff to his attorney at the request of defendant’s attorney, containing directions not to enter a default judgment, until defendant had secured another’s consent to its entry, was binding upon plaintiff, within a rule of court requiring agreements between litigants to to be reduced to writing, and signed by the party to be bound, in order to be enforceable.</p>

<p>Divorce—Actions for Divorce—Grounds—Evidence.</p> <p>1. In a suit by a wife for divorce, evidence held to show that the husband had frequented houses of ill fame and had contracted a venereal disease, justifying a decree.</p> <p>Divorce—Defenses—“Condonation.”</p> <p>2. Condonation is the forgiveness of one of the married parties of an offense which he knows the other has committed against the marriage. There can be no condonation without knowledge.</p> <p>Divorce—Defenses—Condonation.</p> <p>3. A wife who was ignorant of the nature of a venereal disease and relied on the statements of her husband, suffering from the disease, that he had been infected in some innocent manner, did not condone the husband’s offense by living with him until she learned of his deception and of the fact that he had frequented houses of ill fame and had thereby contracted the disease, especially where the husband a few months later compelled her without reason to leave home.</p> <p>Divorce—Alimony.</p> <p>4. A husband owning real and personal property, though indebted in an amount equal to the value of the personal property, is not relieved from the payment of a reasonable sum for the education of his child and for the support of his wife, obtaining a divorce and the custody of the child on the ground of his misconduct.</p> <p>Divorce—Alimony.</p> <p>5. A husband owned about 160 acres of land and considerable personal property, which was unincumbered, but he was indebted in an amount equal to the value of the personalty. His wife obtained a divorce from him, and was awarded the custody of their child. Held, that he would be required to pay to the wife $20 a month for the education of the child and 62,500, in gross, for the maintenance of the wife.</p>

<p>Indictment and Information—Demurrer.</p> <p>1. On the day when a demurrer to an indictment was submitted and taken under advisement by the court, but before a decision had been rendered, a stipulation in writing was entered into between defendant’s counsel and the district attorney, in which it was agreed, that all the matters alleged in the indictment were true, and that judgment should be entered upon the stipulation and the law. The entire ease was afterwards submitted by counsel for defendant, without objection, on the indictment and stipulation. Held, that the finding that defendant was guilty of the crime charged, was a holding that the indictment was good.</p> <p>Criminal Law—Arraignment and Pleas—“Plea oe Not Guilty.”</p> <p>2. Under Sections 1336, 1356, B. & C. Comp., a defendant accused of a misdemeanor can appear for arraignment and enter a plea of not guilty by counsel. Held, that a stipulation entered into by the district attorney and counsel for defendant, that all the matters alleged in the indictment are true and admitted, and that judgment should be entered according to the facts and the law, was in effect a plea of not guilty, as it in effect admitted the facts charged, but denied that they constituted a crime.</p>

<p>Bail—Actions on Bond—Parties.</p> <p>1. Under Section 358, B. & 0. Oomp., providing that fines and forfeitures not specifically granted or otherwise appropriated, when recovered, shall be paid into the treasury of the proper county, an action on a bail bond to secure the appearance of one charged with larceny, may be brought by the county in the circuit court of which the accused was to appear for trial, although the bond runs to the State.</p> <p>Bail—Actions on Bond—Complaint.</p> <p>2. Where the complaint, in an action on a bail bond, did not show the occasion for taking the bond; nor allege that any criminal pi-oeeeding liad been commenced or was pending against XX., the principal therein; nor that any examination had been held before an officer qualified to hold an examination; nor that K. had been admitted to bail; nor that it had been adjudged that there was probable cause of believing K. guilty of some specified charge; nor that he was held to answer any charge, or held to bail, or required to put in bail; nor that there was any breach of the undertaking; nor that the undertaking declared upon was filed with the clerk of the circuit court—it was demurrable.</p> <p>Pleading—Exhibits.</p> <p>8. An exhibit to a pleading cannot supply the lack of necessary and material averments.</p> <p>Bail—Bond—Form—Recital op charge.</p> <p>4. Section 1505, B. & C. Comp., requires, in an undertaking to be used in case of commitment, a recital of the fact that an order has been made by the committing magistrate that the accused has been held to answer a specified charge. Section 1643, prescribing the form of an order of commitment, requires a statement therein that a certain crime has been committed, and that there is sufficient cause to believe accused guilty thereof. Held, that a bail bond was void because it did not show upon its face jurisdiction to take the bond, where it did not show that any order had been entered, by any judicial officer having jurisdiction, holding the accused to answer for a specified charge, nor that the sureties contracted that he would appear to answer a stated charge, but only that he would appear generally.</p> <p>Bail—Bond—Form—Extent op X¿iabílity—“Bail Bond.”</p> <p>5. A “bail bond” is a statutory undertaking to pay money under certain conditions, and, to be enforceable, it must be taken in substantial compliance with the terms of the statute authorizing it, and if not so taken, it cannot be enforced as a common-law undertaking, and the sureties are entitled to stand on their contract according to its terms.</p>

<p>Replevin—Taking and Detention.</p> <p>1. Replevin will lie, though the taking was not unlawful, where there is a wrongful retention of property, the right to the immediate possession of which is in plaintiff.</p> <p>Same—Demand.</p> <p>2. The question of the original taking being unlawful is unimportant in replevin, except on the question of demand for return of the property as a condition precedent to commencing the action; demand being unnecessary if the seizing was unlawful.</p> <p>Same—Pleading—Construction—“Team.”</p> <p>3. Plaintiff brought replevin for a pair of horses, a buggy, and a set of harness. The answer averred that on a certain day the property was in the possession of M. K., who left the horses on a city street for more than three hours, without food or shelter, which constituted cruelty to th.e animals and a violation of an ordinance, requiring defendant, as city marshal, to take up, feed, and shelter the horses, which he did, putting them in the stable of D., who notified M. K. thereof, whereupon M. K. directed that the team be brought to him, but afterwards ordered the team to be taken back to the stable. The answer made no mention of the buggy or harness. A witness testified that he remembered the night defendant took the team and buggy. This was the only declaration tending to show defendant seized the vehicle, and there was no testimony as to the harness. Held, that the word “team,” as used in the pleadings and testimony, would be treated as including the vehicle and harness, as well as the horses.</p> <p>same—Right to Possession—Pleading and Proof.</p> <p>4. To be entitled to recover in replevin plaintiff’s right to have the property delivered to him, when the action was commenced, must be averred in his pleading and proved, and, in the absence of positive testimony, the inquiry is: Can his right to immediate possession be inferred or presumed from the state of the pleadings or from the evidence ?</p> <p>Same.</p> <p>5. In replevin for a team, the answer averred that when the property was taken it was in the possession of M. 3C., and this was admitted in the reply. M. K. testified that when the property was so seized he was employed by plaintiff, and that plaintiff then had possession of the property. Held, that as M. K.’s declaration as to possession contradicted the admission of the reply, and no motion was made to amend the reply, to conform to the testimony, the admission must control as to plaintiff’s immediate right of possession, till overthrown by proof.</p> <p>Same.</p> <p>6. Though M. K., from whose possession it is admitted defendant took plaintiff’s property, was jn plaintiff’s employ, the presumption from such admission is that the right of possession remained in M. K.; Section 788, subd. 83, B. & 0. Oomp., declaring it a presumption that a thing once proved to exist, continues as long as is usual with things of that nature, so that plaintiff, in replevin for the property, to overcome the deduction, has the burden of showing it was entitled to the possession when the action was commenced.</p> <p>Replevin—Pleading —Possession.</p> <p>7. An allegation, in a complaint in claim and delivery against two defendants, that they wrongfully took and unlawfully detained plaintiff’s team, was equivalent to an assertion that when the action was commenced the team was in the possession of both defendants.</p> <p>Replevin—Possession—Evidence.</p> <p>8. In claim and delivery against two defendants to recover a team, evidence that plaintiff asked one of them if he had put the team up, and when answered in the affirmative asked if he would get the team for him, to which he replied in the negative, indicated that such defendant was not in the actual possession of the team when the writ was served.</p> <p>Replevin—Nature of Action—Requisites.</p> <p>9. The remedy of claim and delivery prescribed by Section 284, et seq., B. & 0. Oomp., is substantially the same as replevin, which is a mixed action partly in rem and partly in personam and can be brought only against the person having actual or constructive possession of the goods when the suit is brought.</p> <p>Replevin—Constructive Possession.</p> <p>10. A principal’s constructive possession of goods in the hands of his agent or bailee is sufficient to entitle the owner to maintain replevin against the principal.</p> <p>Dismissal and Nonsuit—Voluntary Dismissal as to Codefendant— Torts.</p> <p>11. If plaintiff fails to prove the commission of a joint tort as alleged, he may elect at the trial as to which of the defendants he will proceed against, and may request the court to instruct the jury to find a verdict against a part of them and in favor of the others, or he may move for leave to amend, and, if granted, proceed against one or more of the defendants.</p> <p>Dismissal and Nonsuit—Joint Defendants—Election.</p> <p>12. Section 180, B. <fc O. Oomp., provides that judgment may be given for or against one. or more of several plaintiffs and for or against one or more of several defendants, and Section 181 declares that, in an action against several defendants, the court may in its discretion render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others. Held, that where the complaint in claim and delivery charged a joint liability against two defendants, but it appeared that one of them was merely holding the property as the bailee of the other, the court erred in refusing to permit plaintiff’s counsel to elect to proceed against the latter and to discontinue as against the bailee.</p>