Volume 54 — Oregon Reports

This is a suit by W. H. Bradford against Petruella Durham. and others, to determine an adverse claim to real property.

<p>Certiorari — Assignment of Errors — Nature and Purpose.</p> <p>1. The statutory demand that errors relied on to set aside or correct the proceedings of an inferior tribunal must be assigned in the petition, for the writ is to advise the court and the adverse party of the particular questions to be considered in determining the merits of the controversy.</p> <p>Justices of the Peace — Proceedings to Procure Writ — Sufficiency of Petition.</p> <p>2. Section 596, B. & O. Oomp., provides that the writ of review shall describe with convenient certainty the decision or determination sought to be reviewed, sotting forth the errors alleged to have been committed therein. Section 597 requires a petition for a writ of review to state such facts as from an inspection of the averments would primarily show that the inferior court, officer, or tribunal appears to have employed its functions erroneously in the exercise of judicial authority, or to have exceeded it or his jurisdiction. A petition to review the action of a justice of the peace in vacating a judgment on the ground that he was without jurisdiction set forth docket entries showing that an action to recover money was begun by plaintiff against defendant in a certain justice’s district, that the place of trial was thereafter changed to a justice court of a certain other precinct, where, on a specified date, were filed a transcript and original papers consisting of the complaint, answer, reply, motion, and affidavit for a change of venue; that, on a subsequent date the cause was tried in that court, and judgment rendered for plaintiff, and that thereafter the justice of such precinct, on defendant’s motion, vacated the judgment on the ground that his court was without jurisdiction of the action, and, in referring to his action, stated that he “erred in vacating and setting aside said judgment” and “exceeded his jurisdiction in making and entering an order vacating and setting aside said judgment,” and “that the making and entering of said order is a material injury to a substantial right of the plaintiff.” Held, that the petition sufficiently assigned the errors complained of.</p> <p>Appeal and Error — Decisions Reviewable — Motion to Open .TuduMENT.</p> <p>8. Where on a writ of review of proceedings of a justice of the peace, the case had been determined by the circuit court, a motion by the defeated party to open the judgment so as to require the justice to make a more complete return to the writ will be treated as a motion, for a new trial, denial of which is not reviewable except in case of manifest abuse of discretion.</p> <p>Appeal and Krror — Review—Presumptions—Change op Venue in Justice Court.</p> <p>4. As.it will be presumed pursuant to Section 788, subd-15, B. & C. Comp., that official duty has been performed, where it is impossible to say from a transcript on appeal that a precinct was not the proper district for the transfer of a cause in justice court on a change of venue, it will be taken for granted that the justice of such precinct was the person to whom it was properly transferred as the nearest justice pursuant to Section 2215; that the court had jurisdiction of the subject-matter, and that, as the answer was filed, it also had jurisdiction of defendant against whom judgment was rendered.</p> <p>Justices op the Peace — Judgments—Vacation.</p> <p>5. The specifications by Sections 108, 2287, B. & O. Comp., of mistake, inadvertence, surprise, or excusable neglect, as grounds for opening a judgment in a justice’s court, excludes all others, and, though pursuant to Section 924 a justice’s court is always open for the transaction of business, it is powerless to set aside a valid judgment except for the reasons specified.</p>

<p>Corporations — Venue—Transitory Actions.</p> <p>1. Under Section 55, B. & C. Oomp., relating to service of summons, a transitory action against a, domestic corporation may he commenced, either in the county where it has its principal place of business, or in the county where the cause of action arose.</p> <p>Corporations — Foreign Corporations — Actions—Venue.</p> <p>2. In the absence of any statute, a foreign corporation maintaining an agency in Oregon, and doing business therein, is deemed a resident thereof, and subject to the jurisdiction of its courts in matters growing out of contracts made in the State or causes of action arising therein, and service of process may be made in the same manner as in the ease of a domestic corporation.</p> <p>Corporations — Actions—Venue.</p> <p>3. At common law, a corporation may be sued only in the sovereignty creating it.</p> <p>Corporations — Foreign Corporations — Bight to no Business.</p> <p>4. A state permitting a foreign corporation to do business within its limits may impose such conditions to the exercise of such authority as may seem reasonably necessary to safeguard the interests of its own citizens.</p> <p>' Corporations — Foreign Corporations — Venue—Statutes.</p> <p>5. Under Laws 1903, p. 39, requiring every foreign corporation doing business in the State to appoint a resident attorney in fact to accept service of process, etc., an action against a foreign corporation, for a personal injury negligently Inflicted in another state, may be brought in the county in which the attorney resides.</p> <p>Corporations — Amending Existing Statutes — Validity.</p> <p>6. Laws 1903, p. 39, requiring every foreign corporation doing business in the State to appoint a resident attorney to accept service of summons, etc., but containing no reference to Section 44, B. & O. Comp., relating to the place of trial, or to Section 55, prescribing the person on whom a summons may be served, or to Section 528, limiting the jurisdiction of a court over foreign corporations, amends the enumerated sections by implication only, and the changes in the existing laws made in that manner are not violative of any constitutional inliibition.</p> <p>Statutes — Implied Repeals — Acts Construed as One.</p> <p>7. Repeals by Implication will not be upheld unless the repugnancy between the prior and subsequent statute, on the same subject, is so manifest that both acts cannot remain in force, and if a later statute only modifies a prior statute, the two must be construed as one act.</p> <p>Corporations — Foreign Corporations — Actions—Service oe Process.</p> <p>8. "Where a foreign corporation, pursuant to the requirement of a statute, appoints an attorney in fact or other representative on whom process shall be served, the statutory method is generally exclusive, and service of summons on any other agent is ineffectual.</p> <p>Corporations — Foreign Corporations — Actions—Jurisdiction.</p> <p>9. The state into which the representatives of a foreign corporation are sent to transact lawful business therein, may by proper legislation make the corporation liable to its citizens in actions and suits, and the corporation may there be sued on any transitory cause ol action, no .matter where it arose.</p> <p>Corporations — Residence.</p> <p>10. A corporation is deemed to be a resident of the state of its creation.</p> <p>Corporations — B’oreign Corporations — Process.</p> <p>11. In the absence of any express legislation on the subject, Section 66, subd. 1, B. & O. Comp., relating to the service of summons in actions against private corporations, though intended to be applied to domestic corporations, applies to foreign corporations doing business in the State.</p> <p>Corporations — Foreign Corporations — Jurisdiction—Statute.</p> <p>12. The requirement of Laws 1903, p. 89, that a statement giving the location of the principal office of a foreign corporation doing business in the State shall be filed with the Secretary of State, is designed to afford evidence of its doing business in the S tate, and does not definitely fix the place where actions against it may be maintained.</p>

<p>This is an action by the "Multnomah Lumber & Box Co. against the Weston Basket & Barrel Co. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Boundaries — Establishment—Acquiescence.</p> <p>1. Where a government survey made according to Act September 27,1850, o. 76 (9 U. S. Stat. 497), for the purpose of dividing a donation land claim between a husband and wife, has been acquiesced in for a long time, it is conclusive as to the location of the dividing line, and such line is not changed by the location of a quarter section line.</p> <p>Boundaries — Establishment—Owicial Survet.</p> <p>2. An east and west quarter section line is not necessarily the same as a division line between the north half and the south half of a donation land claim of a husband and wife divided by the Surveyor General according to a survey made under Act September 27,1850, c. 76 (9 U. S. Stat. 497), because Rev. St. U. S. § 2396, requires section lines to be straight lines from the established corners to the opposite corresponding corners.</p> <p>Reformation of Instruments — Grounds—Mistake.</p> <p>8. An ambiguity arising out of a mortgagor’s misconception that a quarter section line and the division line between the north half and the south half of a donation land claim were identical is not ground for correcting the description, when the. language clearly shows that the mortgagor intended to convey to the division line established by the government survey, by which the claim was divided,</p>

<p>Appeal and Error — Perpeoting Appeal — “Other Act.”</p> <p>1. Tlie “other act,” referred to in Section 549, subd. 4, B. & O. Oomp., providing that, where a party in good faith gives due notice of an appeal, and thereafter omits, through mistake, to do any other act necessary to perfect the appeal, the court may permit an amendment or performance of such act, is the filing of an undertaking on appeal, an omission to do which through mistake may be supplied on application therefor.</p> <p>Appeal and Error — Perpeoting Appeal — Authority op Trial Court.</p> <p>2. When an appeal is perfected, the authority of the court to allow an alteration for the completion of some act relating to the filing of a proper undertaking necessarily ceases.</p> <p>Appeal and Ebboe-Piling op Transcript — Extension op Time. 3. An appellant, discovering that it will be difficult to Ule a transcript within the thirty days limited therefor, may on application, as authorized by Section 553, subd. 2, B. & O. Comp., obtain an extension before default occurs.</p> <p>Appeal and Error — Failure to Pile Tbansobipt — Eppeot.</p> <p>4. Since an order of the trial court, made after an appeal was perfected, setting aside the notice of appeal, etc., is a nullity, the failure to file a transcript within the time prescribed after perfecting the appeal operates as an abandonment of the appeal.</p>

Statement by Mr. JUSTICE SLATER. This suit was brought by the plaintiff, A. F. Flegel, as assignee of Peter Kregar, against Peter Dowling, to enforce the specific performance of an alleged contract, made by the defendant with Kregar, whereby the former agreed to sell to the latter, lots 3 and 4, in block 18, of Albina Homestead, in Multnomah County, Oregon, for the agreed price of $800, together with $76.20 sewer assessment thereon, to be paid by the purchaser; $350 of the…

Statement by Mr. Justice McBride. Plaintiff, Christ C. Boe, brings ejectment against Hoyt Arnold, defendant, to recover certain land situated in Malheur County. Defendant makes general denial, and pleads the following separate defenses: (1) That he is in possession as lessee of A. N. Soliss, and that Soliss is the owner in fee of the demanded premises. (2) Act Cong.

<p>Appeal and Error — Notice on Appeal in Open Court.</p> <p>1. The abstract on appéal, showing verdict was rendered November 9th (by mistake for December 9th), contained a journal entry that on December 19th plaintiff’s motion ‘‘to set aside the verdict “ * and the judgment entered thereon” was denied, and thereupon plaintiffs in open court gave notice; also a journal entry that on December 19th, the verdict having been returned that day, judgment was rendered for defendant. Held, that from the recital that the motion was to set aside the judgment, as well as the verdict, and the presumption that the court, as ,was its duty under Section 201, B. & O. Oomp., as amended by Laws 1907, p. 8l2, § 4, gave judgment on the day verdict was returned, there was no doubt that the judgment was not given or entered December 19th, but there was a mistake in such date, so that notice of appeal in open court was not given at the time judgment was rendered, as required by Section 649, B. & O. Oomp.</p> <p>Appeal and Error — Notice oe Appeal — Necessity.</p> <p>2. Notice of appeal must be served in the manner and at the time prescribed by the statute to give the appellate court jurisdiction of the subject-matter ; and the right to hear and determine the cause cannot be given by consent of the parties, or by the court waiving strict compliance with the statute.</p>

<p>Mechanics Liens — Agreement or Consent op Owner.</p> <p>1. Under Section 5640, B. & C. Comp., providing that every contractor shall have a lien for the work done in the construction of the building at the instance of the owner or his agent and that every architect having charge of the construction of a building shall be deemed the agent of the owner, a contractor claiming a lien must show a contract with the owner, or with his authorized agent, and a contractor relying on a contract with an architect employed only to make plans, under an agreement for compensation if the owner proceeds with the construction of the building, is not entitled to a lien, where the owner had decided not to erect the building.</p> <p>Costs — On Appeal— Unnecessary Matter.</p> <p>2. Under Supreme Oourt rule 8, BOOr. 574 (91 Pac. IX), requiring the abstract of the record to contain so much of the complaint, etc., involved in the appea^ as may be necessary to explain the questions raised, costs will not be allowed for the printing of pleadings having no bearing on the issues on appeal and unnecessarily included in the abstract.</p> <p>Costs — On Appeal — Transcript op Evidence — Oarbon Copy.</p> <p>8. Under Supreme Gourt rule 8, 50 Or. 573 (91 Pac. IX), providing that “in equity cases the brief shall contain such portion of the evidence as may be deemed material * * in either narrative form or by question or answer,” the expense of a carbon copy of the transcript of evidence on appeal is not a proper disbursement.</p>

<p>Taxation — Sale for Nonpayment of Tax — .Evidence as to Validity.</p> <p>1. One who claims as assignee of a certificate of a sale of property for nonpayment of taxes made to the county, and not by certificate or deed made to himself as a direct purchaser, has the burden of showing every requisite of a valid sale or of bringing himself within the provisions of some valid curative statute, and must prove advertisement for the period required by law.</p> <p>Taxation — Sale for Nonpayment of Tax — Notice of Sale — Proof of Publication.</p> <p>2. Under a statute requiring that the affidavit of publication of notice of sale for taxes shall be made by the pointer, his foreman, or principal clerk, an affidavit by one who styled himself “Foreman of the Eastern Oregon Republican” is insufficient, where there is nothing to show that the person making the affidavit was the foreman of the printer, or what department of the work he was foreman of.</p> <p>Taxation — Sale—Notice—Publication—Proof.</p> <p>3. Where the affidavit to prove publication of a notice of a tax sale is sworn to before a notary who fails to attach his official seal, the affidavit is worthless.</p> <p>Taxation — Sale for Nonpayment of Tax — Publication of Notice— Curative Act.</p> <p>4. There can be no valid sale of land for nonpayment of taxes where there is no valid advertisement of the sale, and it is not within the power of the legislature, by a curative act, to avoid such defect, and thereby take one person’s property and give it to another.</p> <p>Abatement and Revival — Matter in Bar and Abatement — Order of Pleading — Waiver.</p> <p>5. In an action by a landowner to recover lands held under a tax title, the defense that no tender of taxes paid has been made by plaintiff, comes too late after pleading in bar, as the plea in bar waives the matter in abatement.</p> <p>Taxation — action to Try Title-Measure of Damages — Injuries to Property — Detention for Loss or Use.</p> <p>6. The measure of damages to a landowner on recovering possession from one who holds under a void tax title, is the rental value of the land as improved by the purchaser, deducting therefrom the reasonable market value of any permanent improvements placed on the land by the purchaser.</p>

<p>'Indictment and Information — Sufficiency—Mode of Objection— Effect.</p> <p>1. Where the objection to an indictment for larceny is that it does not state facts constituting a crime, but no demurrer or motion to set aside the indictment was made, if, taking the indictment as a whole, the essential elements constituting the offense of larceny can be found in it, the objection must be overruled.</p> <p>Larceny-Indictment and Information — Sufficiency.</p> <p>2. Under Section 1303, B. & O. Oomp., providing that an indictment is definite enough if the facts are so stated as to enable a person of common understanding to know what is intended, an indictment charging that defendant “took, carried, stole, led and drove away,” two heifers of the value of $30, contrary to the statutes, is sufficient to charge simple larceny without the allegation that the taking was felonious.</p> <p>Larceny — Indictment—Grand or Simple Larceny.</p> <p>3. Under Section 1801, B. & C. Comp., relating to grand larceny, and providing that any person committing the crime of larceny by stealing any “cow or calf ” shall be punished, an indictment alleging that defendant took, carried, stole, led, and drove away, two heifers of the value of 880, charges petty and not grand larceny, since the word “feloniously” is not used; “heifer” is not mentioned in the statute, and it is unnecessary, in order to charge grand larceny, to allege the value of the animal.</p> <p>Larceny — Recent Possession — Instructions—“Found.”</p> <p>4. In a prosecution for larceny, an instruction as to defendant being found in the recent possession of stolen property is applicable, though the property is not found in defendant’s possession, but in the possession of one to whom he had sold it, since the word “found,”as used in instructions of this character, simply means “discovered,” “traced to,” or shown to have been in defendant’s possession.</p> <p>Larceny — Recent Possession — Instructions—Construction.</p> <p>5. The term “recent possession,” as used in an instruction in a prosecution for larceny, as to the “recent possession” of stolen property, is merely relative, and depends on all circumstances of the case, and whether it is sufficiently recent to justify drawing an inference is usually a question of fact for the jury.</p> <p>Criminal Law — Trial—Instructions—Weight of Evidence.</p> <p>6. In a larceny prosecution, an instruction that if, shortly after the theft, the property was found in the possession of defendant, and defendant has failed to explain how he obtained such possession, his failure to make such explanation may be considered as a circumstance tending to show defendant’s guilt, and given such weight as seemed proper in connection with the other evidence in the case, is not erroneous as assuming a theft or as assuming that defendant’s explanation was unreasonable.</p> <p>Criminal Law — Trial—Instructions—Requests.</p> <p>7. Requested instructions covered by the general charge are properly refused.</p> <p>Evidence — Transcript on Appeal."</p> <p>8. Whore it is contended that the evidence was not sufficient to justify the verdict, the transcript on appeal must show the objections to be well taken, otherwise the court will not devote the time nor occupy the space to discuss it.</p> <p>Criminal Law — Trial—Rebuttal Evidence — Admissibility.</p> <p>9. In a larceny prosecution in which a foundation is laid for the admission of impeaching evidence by asking defendant the truth of certain admissions which he was alleged to have made, which he denied, a witness may not testify on rebuttal as to the making of such admissions, unless the evidence is limited to the purpose of impeachment, where the admissions are prejudicial to defendant and part of the state’s case.</p>

Statement by Mr. Justice King. This is a suit by C. T. Oliver and the Mitchell, Lewis & Staver Company, a corporation, against the Klamath Lake Navigation Company, a corporation, and G. H. Woodbury to enjoin the construction of a dock or wharf between plaintiff’s property and Link River, the construction of which, it is asserted, will materially interfere with the access to and from such river to plaintiff Oliver’s property, to his injury and damage.

<p>Appeal and Error — Notice of Appeal — Sufficiency.</p> <p>1. Under Laws 1899, p. 228, and Laws 1901, p. 77, declaring that a notice of appeal shall be sufficient if it contains the title of the cause, the names of the parties, and notice to the adverse* party or his attorney that an appeal is taken to the supreme or circuit court, as the case may be, from the judgment, order, decree, or some specific part thereof, a notice that defendant Emma (3-. Kobinson appeals from all of the judgment and degree, excepting those portions adjudging to the appealing defendant liens on the property described in the decree, and that among the particular portions of the judgment and decree from which this defendant appeals are those adjudging liens for any sums in favor of plaintiffs or any of them against such property and fr'om those portions giving judgment for any sum against this defendant, was sufficient.</p> <p>Appeal and Error — Appeal Bond — Conditions.</p> <p>2. "Where, in a suit to foreclose certain contracts constituting an equitable mortgage on mining property, the court fixed the value of the use of the land, and the amount so fixed was included in the undertaking of appeal, it was not defective because it did not also secure the performance of the assessment work required by the laws of the United States in order to save the property from forfeiture, pending appeal.</p> <p>Appeal and Error — Supersedeas.</p> <p>S. An appeal, though not perfected until the expiration of the time for objections to the sufficiency of the sureties, operated as a supersedeas from the date of its service and filing.</p> <p>Appeal and Error — Supersedeas—Effect.</p> <p>4. "Where, in a suit to foreclose an equitable mortgage' on mining property, one of the defendants perfected an appeal before sale, the sheriff should have continued the sale until after the time limited for objections to appéllant’s sureties, and then, in default of such objections, should have released the property.</p> <p>Appeal and Error — Supersedeas—Sale After Appeal.</p> <p>5. A sale, under a foreclosure decree and an order confirming same after the perfection of an appeal by one of the defendants are invalid.</p>

Statement by Me. Justice Eakin. This is a suit by Louis Lachmund and Julius Pincus partners doing business under the firm name and style of Louis Lachmund & Co., against Lope Sing, Oliver Beers, and Seid Back, to foreclose a contract and chattel mortgage on certain hops.

Statement by Mr. Justice Slater. This is an action by George H. Gentzkow against the Portland Bailway Company to recover damages for personal injuries alleged to have been sustained by plaintiff from receiving an electric shock, caused by the negligence of defendant in permitting and allowing its trolley service wire to sag and fall upon and across the the north trolley wire of its double-track street railway system on Bussell street, in the city of Portland, Oregon, so that…

Statement by MR. Justice McBride. This is an action by J. A. Russell, administrator of the estate of J. Donald Russell, deceased, to recover damages on account of the death of the said J. Donald Russell, who was struck and killed by a railway locomotive on defendant’s road at Perry, in Union County, on July 30, 1907.

Statement by Mr. Chief Justice Moore. The following is a plat showing the property and way in controversy: This is an appeal by the defendant, George W. Gordon, from a decree enjoining him from obstructing an alleged private way over part of his land on which the plaintiff, the German Savings & Loan Society, a private corporation asserts that it has an easement, as an incident to its ownership of adjoining land.

Statement by Mr. Justice McBride. This is an action brought by Ezra S. Brasel on account of injuries received by him from a fall from the running board of one of defendant’s locomotives. Plaintiff was employed by defendant, at its roundhouse and repair shop at La Grande, as a boiler washer and cleaner.

Statement by Mr. Justice Slater. This action was brought by Della Kennedy against W. J. Hawkins, Alfred J. Bingham, and Joseph McClelland to recover the value of certain household goods and personal property belonging to plaintiff, which were destroyed and damaged by the falling of the north wall of the house where she resided, alleged to have been caused by the joint negligence of defendants.

<p>Ejectment — Trial—Nonsuit.</p> <p>1. Amotion for nonsuit in ejectment, on the ground that the evidence shows title only to tide lands, while the complaint describes land only below low tide, is properly denied, where the answer admits the premises are above low tide.</p> <p>Appeal and Error — Review—Subsequent Appeal.</p> <p>2. Where it was held on a former appeal that the defense of adverse possession was not sustained by the evidence, and the evidence on the second trial was no stronger in defendant’s favor, that defense will not be further considered on the subsequent appeal.</p> <p>Boundaries — Establishment—Evidence.</p> <p>3. The rule that in government surveys the first lines and corners are only temporary, and, if the metes and bounds do not close, correction back is made by dividing the error and moving the lines and corners before they are made permanent, does not apply in retracting permanent surveys to the extent ot moving established boundaries so as to include land not within the government survey, and in ejectment evidence of such rule and the map of the premises involved, made on such theory, are not admissible.</p> <p>Ejectment — Identity op Land — Evidence.</p> <p>i. Evidence held insufficient to identify an alleged strip of land between the true boundaries of two tracts according to government surveys.</p> <p>Boundaeies — Location—Evidence.</p> <p>5. The location of the beginning point of a survey would not be regarded as established by the testimony of a witness, who was present when the survey was made, as to his recollection of its location, after the lapse of thirty-four years.</p> <p>Boundaeies — Beghnnino Oobneb — Location—Evidence.</p> <p>8. Evidence held to show that the northeast corner oí a certain lot had not been properly located in the Whereat’s survey, and could not, therefore, be taken as the starting point from which to locate an angle to which such survey was tied.</p>

<p>Time — Computation—Days.</p> <p>1. Except in special cases when otherwise provided, a prescribed period of days within which an act must be done is to be computed by excluding the first day and including the last.</p> <p>Highways — Proceedings to Vacate — Notices.</p> <p>2. Laws 1903, p. 264, § 8, provide that, when a petition shall be presented to the county court for vacating a county road, it shall be accompanied by satisfactory proof that notice has been given by advertisement, posted thirty days previous to the presentation of the petition to the court at its next session. Notices were posted September 8d, reciting that application to vacate part of a county road would be made to the county court at its next session on October 3d. Held that, as the thirty days limited for the posting of the notices did not expire until the last hour of October 8d, they were posted only twenty-nine days prior to the next session of the county court, and the court did not acquire jurisdiction.</p> <p>Highways — Vacation—Proceedings— Certiorari.</p> <p>3. When attention is called to a lack of jurisdiction, the duty devolves upon the court to set aside the proceedings and purge the record of informalities, though the defect has not been challenged in a formal way, and hence upon writ of review in the circuit court to review proceedings in the county court to vacate a highway, where it appeared that the county court had not acquired jurisdiction, its order vacating the road was properly set aside, though its power to hear and determine the matter had not been formally challenged.</p> <p>Jurisdiction, "Want of — Duty of Court.</p> <p>4. At any stage of the proceeding, when want of jurisdiction is manifest, it is the duty of the court and on its own motion to refuse to proceed further</p>

Statement by Mr. Justice Eakin. This is a suit by J. E. Laughlin to foreclose a mechanic’s lien upon the Knights of Pythias building, erected in the year 1907, in Baker City, Oregon. L. Connors was the contractor for the stonework of the building.

<p>Master and Servant — Injury to Servant — Question for Jury.</p> <p>1. Id an action for injuries to a brakeman owing to the train on which he was riding having passed through an open switch and collided with a car, the question whether he was negligent in riding on a step of the tender held one for the jury.</p> <p>Master and Servant — Injuries to Servant — Negligence—Question for Jury.</p> <p>2. Where, in an action for injuries to a brakeman on a logging train owing to the train having passed on an open switch and collided with a car, the evidence showed that it was customary for the switch to be left open after certain switching operations, which had recently been completed when the accident occurred, and that plaintiff had reason to believe that it was open, the condition of the switch did not constitute negligence. The question whether it was the proximate cause of the injury, held one for the jury.</p> <p>Master and Servant — Injury to Servant — Question for Jury.</p> <p>3. In an action for injuries to a brakeman owing to the train on which he was riding having passed upon an open switch and collided with a car, the question whether defendant was negligent in leaving the car on the track, held for the jury.</p> <p>Master and Servant — Injuries to Servant — Instructions.</p> <p>4. Plaintiff was employed as a brakeman on a logging train by railroad company which operated logging trains on a certain branch of the road, and on a spur running from the branch, and plaintiff knew that it was customary to leave the switch from the spur to the branch open on to the spur after certain switching operations. Plaintiff was injured owing to the train on -which he was riding, passing upon the open switch and colliding with a car at a time when he had reason to believe that the switch was open owing to the operations referred td having recently been completed, and the court charged in an action for the injury that, if the branch was in general use for passengers and freight service, it would constitute a main line, and was subject to the customs and rules of railroads as to main lines and spurs. Held, that the instruction was erroneous.</p>

This action was brought to condemn land by the Oregon Railroad & Navigation Co. against John Eastlack and others. From a judgment awarding the property to plaintiff on payment of a specified sum, it appeals.

<p>Appearance — Service of Summons — Waiver.</p> <p>1. A defendant waives his right to object to a judgment for want of proper service of summons by appearing and asking leave to answer to the merits.</p> <p>Judgment — Default Judgment — Vacation—Grounds.</p> <p>2. Where substituted summons was had on defendant, a minor 19 years of age, by serving same on his mother, and thereafter the mother was appointed guardian ad litem, and served with summons, and subsequently, no appearance having been made, another guardian ad litem was appointed and appeared in open court announcing that he had no defense and declining to plead, and it did not appear that defendant took any interest in the matter, though counsel had been consulted, the court did not abuse its discretion in refusing to open judgment against him.</p> <p>Infants — Guardian Ad Ditem — Disqualification.</p> <p>8. That a client of some of the attorneys in the case was appointed guardian ad litem for an infant defendant, did not disqualify him from serving defendant as such, unless the retainer was in the matter relating to the subject in dispute.</p> <p>Judgment — Default Judgment — Opening Default — Discretion of Court.</p> <p>4. The granting or refusing the motion to open a default is a matter resting in the sound discretion of the court, and its exercise will not be disturbed, except for abuse of that discretion.</p>

This is an action by James Ferrari, a minor, by Rosa Ferrari, guardian of his person and estate, against the Beaver Hill Coal Company, a corporation, and Daniel Maher, one of its employees, to recover damages for an injury. From a judgment in favor of plaintiff, defendants appeal. On motion to dismiss appeal and counter motion on clerk to supply record. Motion to Supply Record Allowed. Statement by Mr. Justice King.

This suit was commenced in the circuit court of Union County, by Julius Roesch against J. C. Henry, county judge, J. M. Selder and Ben Brown, as county commissioners, constituting the county court for Union County, Oregon, for the transaction of county business, to restrain them, as such officers, from declaring the result of a local option election. From a decree dismissing the suit, plaintiff appeals.

<p>Trial — Instructions Ignoring Issues.</p> <p>1. The defendant, in an action on an express contract to pay rent, denied the contract, and alleged as a defense that a trustee in bankruptcy took possession of the premises under a decree against the plaintiff and leased them to defendant for a stipulated rental, which was the reasonable rental value of the premises, and paid into court the amount admitted to- be due. Plaintiff’s reply denied the new matter alleged in the answer, and averred that the decree had been reversed and the suit in which it was given dismissed. Held, that the issue made by the answer and reply was proper, and it was error to give an instruction that plaintiff’s right to recover the reasonable rental value was not involved in the case.</p> <p>Costs on Appeal — Expenses oe Transcribing Testimony.</p> <p>2. The costs of transcribing the stenographer’s notes of the testimony must be taxed in the lower court, as required by Section 906, B. & O. Comp., and are not taxable as part of the disbursements on appeal.</p>

<p>Statement by Mr. Justice McBride.</p> <p>This is a proceeding in mandamus to compel the county court of Malheur County to amend an order of prohibition made by it in June, 1908. The writ sets forth: That, the petitioners are residents, taxpayers, and citizens of the City of Vale, in Malheur County, engaged in retail liquor business in that city, and have large sums of money invested in the same; that the city charter was passed by the legislature on the 21st day of February, 1905; that the local option law went into effect June 24, 1904; that by the charter the city council was granted full power and authority to license, tax, regulate or prohibit the sale of spiritous, malt, or vinous liquors; that on the 30th day of April, 1908, a petition was filed, calling for a vote on the question of prohibition in the county of Malheur as a whole; that no separate petition for a vote on prohibition was filed for the City of Vale; that an election was held pursuant to such petition, notwithstanding the fact that no notices were ever issued or posted as by law provided; that said election resulted in a majority of 250 votes in favor of prohibition in Malheur County; that at some date in June, 1908, the county court met in special session for the purpose of making an order of prohibition, and thereupon made and entered an. order or pretended order of prohibition for the whole county of Malheur, which order bore no date, but specified that prohibition would be in force under the regulations of the local option law from and after July 1, 1908; that said order of prohibition is without authority of law; that it will work great and irreparable injury upon relators, and deprive them of their business, that by reason of the provisions of its charter, the' City of Vale should have been excluded from the operation of the order of prohibition; and that said court was without authority to make any order that might limit the power of the common council regarding the' sale of liquor. Defendants demurred to the writ, and the demurrer was sustained, from which order relators appeal.</p>

<p>Certiorari — Writ of Review — Interested Party — Record.</p> <p>1. Writ of review to revise the action of the county court in making an order of prohibition following an election is properly dismissed; neither the petition nor the writ showing that petitioner appeared in the county court to oppose the order, and so not disclosing that he was an interested party.</p> <p>Certiorari — Writ of Review — Defect of Parties — Waiver.</p> <p>2. Respondents, by making full return to the writ, without interposing any motion to quash or any demurrer on account of defect of parties, will not be held to have waived, and so to be precluded from raising the objection that the petitioner for writ of review was not shown to be an interested party, the statute making no provision for demurrer or motion to quash, but the inferior court having no alternative, when the writ issues, but to send up its return, whereof the hearing is on inspection of the writ and the return.</p>

<p>Appeal and Error — Bribes—Excuse for Failure to File. Engagements in causes in other courts afford no excuse for failure to file briefs within the time prescribed by the rules of court.</p>

<p>Appeal and Error — Time to File Brief — Excuse for Failure.</p> <p>The failure of appellant to file his brief, due under rule 87, 50 Or. 588 (91 Pac. XII) on February 20th, until April 7th following, or to apply for an extension of time in which to file brief, is not excused by a showing of pressure of business on the part of his attorney and a delay of the printer in getting out the copy, and the judgment will be affirmed.</p>

Statement by Mr. Chief Justice Moore. This is a suit by Sarah S. Ames and others against Shelton D. Moore, to set aside a deed to real property.

Statement by Mr. Justice McBride. This is an action at law brought by plaintiff, the City of Nyssa, against Malheur County, to recover certain moneys collected by the county, within the corporate limits of plaintiff for road tax. Plaintiff contends that, under certain provisions of its charter, it is entitled to all the road tax collected on property within its limits, and that defendant refuses to pay over the same. Defendant demurred generally to the complaint.

<p>Criminal Law — Exclusion of Public From Trial — Presumptions as to Enforcement of Order and Prejudice From Error.</p> <p>1. In the absence of a showing to the contrary, it is presumed that an order excluding the public from the courtroom during a criminal trial was enforced, and that it was prejudicial to the rights of the defendant.</p> <p>Criminal Law — Trial—Exclusion of Public.</p> <p>2. Under Section 11, Article I, Constitution of Oregon, declaring that, “in all criminal prosecutions the accused shall have the right to public trial,” it was error for the court, in a prosecution for assault with intent to rape, to exclude from the courtroom ail persons, except defendant, the attorneys engaged in the trial, the jury and officers of the court, and the witnesses while on the stand.</p> <p>District and Prosecuting Attorneys — Duties of Prosecuting Attorney.</p> <p>8. It is as much the duty of prosecuting attorneys to see that a person on trial is not deprived of any of his constitutional or statutory rights as it is to prosecute him for the crime with which he is charged.</p> <p>Criminal Law — Trial—Striking Out of Evidence.</p> <p>4. Hearsay evidence should be stricken out, though it was elicited on cross-examination by the parties objecting thereto.</p> <p>Criminal Law — Evidence—Acts of Codefendant.</p> <p>5. In a prosecution for an assault with intent to rape, the admission of evidence of a previous similar assault on the daughter of the prosecuting witness by a codefendant not on trial is reversible error.</p> <p>Witnesses — Impeachment—Evidence.</p> <p>6. After a witness has testified that the character of the prosecuting witness in a certain particular is bad, he will not be permitted on cross-examination to testify to specific acts or occupation of.the prosecuting witness in rebuttal of such testimony.</p> <p>Criminal Law — Review of Appeal — Harmless Error.</p> <p>7. A conviction, will not be reversed for the giving of hearsay evidenoe which was not responsive to the questions asked, where the court instructed the jury not to consider it, and no prejudice therefrom appears.</p> <p>Criminal Law — Presumption of Guilt From Flight.</p> <p>8. The presumption of guilt arising from the flight of accused is one of fact, and not of law; and the question as to whether the circumstance tends to show a guilty intent is for the jury.</p> <p>Criminal Law — Flight as Evidence of Guilt.</p> <p>9. The flight of accused may be taken into consideration by the jury as a circumstance in connection with the other evidence in determining whether accused was guilty of the crime charged.</p> <p>Instructions — Discretion of Court — Request For — Included in General Charge.</p> <p>10. A court is not bound to give, and ought not to give, an instruction, even though it may state the law correctly, which is not couched in language sufficiently untechnical to be comprehended by the average juror, for by so doing the jury is confused rather than instructed.</p>

<p>Municipal Corporations — Construction op Sewerage System — Contracts — “Etc.”</p> <p>1. A contract for the construction of a sewerage system, stipulating that the city may pay for the work in legally issued bonds, or in cash out of the general fund, as it may elect, but that the city shall “pay for any readvertising, etc., required to satisfy the attorney” of the contractor that the bonds are legally issued, requires the contractor to accept legally issued bonds, and not to merely accept such bonds as his attorney shall advise him are legally issued; and, where such attorney assumes that it is impossible to issue any valid bonds in any way, the contractor cannot refuse to perform because of the failure of the city to pay the cost of advertising, etc., required to satisfy the attorney of the legality of the bonds; the. term “etc.” meaning other things of like character.</p> <p>Municipal Corporations — Powers.</p> <p>2. Municipal corporations have no powers except such as are granted in express words by their charters, or such as are necessarily implied from those so granted, or those essential to the declared objects and purposes of the corporation.</p> <p>Municipal Corporations — Construction of Sewerage System — Payment — Bonds—Special Assessments.</p> <p>3. Sumpter City Charter (Sp. Laws 1901, p. 95), authorizing the levy of a special tax for any specific city purpose, and to issue bonds for any specific purpose, empowering the city to construct sewers, the cost of which is to be assessed to the property benefited, and setting forth a complete system for constructing sewers by assessments, etc., authorizes the city to issue bonds for the construction of a sewerage system, or to levy an assessment on property benefited, to pay for the cost thereof; a sewer being a specific city purpose.</p> <p>Municipal Corporations — Payment of Claims — Powers.</p> <p>4. Under Sumpter City Charter (Sp. Laws 1901, p. 95), providing that demands which the council shall pay shall be for corporate purposes, and none other, the council has no power to order the payment to a contractor of money forfeited to the city because of the contractor’s failure to perform his contract; the claim for repayment not being fo'r a corporate purpose.</p> <p>Municipal Corporations — Demands—Payment—Power op Mayor.</p> <p>5. Sumpter City Charter f Sp. Laws 1901, p. 95), declaring that the mayor is the chief executive, and must exercise supervision over the general affairs of the city and subordinate officers, requires the mayor to refuse to sign a warrant-for the payment of money illegally ordered by the council.</p> <p>Trial — Findings — Sufficiency.</p> <p>6. "Where, iu an action involving the construction of a contract, the court made the contract a part of its findings, and found in the terms of the contract what the parties agreed to do, a more specific finding would only be a conclusion of law from the facts found, and would be unnecessary.</p> <p>Evidence — Judicial Notice — Charters op Municipal Corporations.</p> <p>7. A charter of a city is a public law of the state of which the courts take judicial notice.</p> <p>Trial— Findings — Sufficiency.</p> <p>8. Where the court found on issues ultimately determining the controversy and necessarily supporting the judgment, other issues became immaterial.</p>

<p>Robbery — Indictment and Information — Indictment—Assault With Intent to Rob.</p> <p>1. Section 1768, B. & C. Comp., provides that “If any person,' being armed with a. dangerous weapon, shall assault another, with intent, if resisted, to kill or wound the person assaulted,” and shall rob or take from the person assaulted any money which may be the subject of larceny, such person, upon conviction thereof, shall be punished. 1 B. & O. Oomp., p. 750, prescribes as a form of indictment for an assault with intent to kill if resisted that “being armed with a dangerous weapon did commit an assault upon one O. D. with intent, if resisted, to kill or wound the said O. D., and then and there feloniously took,” etc, Section 1306, B. & O. Comp., declares that an indictment must be direct and certain as regards the particular circumstances of the crime charged when necessary to constitute a complete crime, and Section 1805 provides that the manner of stating the act constituting the crime as set forth in the appendix to the Code is sufficient in the eases where the forms there given are applicable. Held that, in charging an assault and robbery with intent, if resisted, to kill or wound, it is unnecessary after charging that defendants were “armed with dangerous weapons, to wit: pistols,” to allege that the pistols were then and there loaded with gunpowder and bullets, as the language of an indictment need not correspond with the form suggested or with the words of a statute, unless the expression used in the form is necessary to the validity of the accusation, and the descriptive phrase in the indictment, “to wit: pistols,” was properly rejected as surplusage, and an averment that the money taken from the prosecuting witness was taken against his will is also unnecessary.</p> <p>Robbery — Evidence— “Presumption” and Burden of Proof.</p> <p>2. Under Section 784, B. & C. Oomp., defining a presumption as a deduction from particular facts, it will be presumed that, when an assault with intent to commit robbery is made by placing the muzzle of a pistol at or near the body of a person from whom money or property is expected to be taken by force, the weapon so employed is loaded with powder and ball, and is a dangerous weapon, and imposes upon the person accused, if he admit the use of the pistol, the burden of proving it was not so charged.</p> <p>Robbery — Admissibility of Evidence.</p> <p>8. In a prosecution for robbery, where no theory of the cause is advanced by defendant that would render material a plan or diagram of the interior of the jail in which defendants were incarcerated, a refusal to admit such a diagram is not error.</p> <p>Robbery — Trial—Instructions.</p> <p>i. In a prosecution for robbery and assault with intent to kill if resisted, an instruction that if the jury find from the evidence beyond reasonable doubt that defendants, or either of them, are guilty of stealing from the person of the prosecuting witness the sum described in the indictment or some part thereof, but do not find that they or either of them assaulted said witness with intent, if resisted, to kill or wound said witness, then they should find the defendants or either of them guilty of the crime of larceny from the person, is not erroneous, as robbery is larceny aggravated by the circumstance that the property taken is taken from the person of another by violence or by putting him in fear, and the greater crime necessarily embraces the lesser offense of the same class.</p> <p>Criminal Law — Grounds for New Trial.</p> <p>5. After conviction of defendants on the charge of robbery and assault with intent to kill, if resisted, one of the defendants filed an affidavit in support of a motion for a new trial that since the trial affiant has learned that F. took from the prosecuting witness the money specified in the indictment, and that affiant had been informed that, if a new trial was granted, F. would make a full confession completely exonerating affiant from any participation in the crime. A third person was charged in the indictment as “John Doe” with having participated in the crime, and there was nothing to show that F. was not “John Doé.” An affidavit by the other defendant was filed stating that he saw F. take the money from the prosecuting witness, but that he did not tell any person thereof until after the trial. There was also evidence that on the day of the robbery, F. had money in his possession similar to that taken from the prosecuting witness. Held, that the showing was not sufficient to warrant a new trial.</p>

<p>Appeal and Error — Appealable Orders — Sustaining Demurrer.</p> <p>1. An appeal does not lie from an order sustaining a demurrer to a complaint ; such order not being a determination of the action.</p> <p>Appeal and Error — Appealable Orders — “Action”—“Suit”—“Complaint.”</p> <p>2. A “suit” or “action” being “the lawful demand of one’s right in a court of justice” while a “complaint” is, under Section 67, B. <fe O. Oomp., a plain and concise statement of the facts constituting the cause of action or suit, the dismissal of the complaint on the sustaining of a demurrer thereto does not necssarily discharge the lawful demand so as to terminate the action and permit an appeal from the order of dismissal.</p>

<p>Evidence — Admissions—Conclusiveness.</p> <p>1. In an action for commissions earned by the purchase of land for defendants, where plaintiff claimed that the agreement was that he should receive $1 an acre when he secured options on the land and deposited the deeds in escrow, but defendant claimed that he was not to receive any commissions unless defendant exercised his option and resold the land, and defendant introduced letters from plaintiff, written after plaintiff had stated in another letter to defendant that he had purchased the land, and considered his part of the contract fulfilled, which letters related to securing control of certain land, the options on which had expired "after plaintiff had obtained them, and were introduced as being admissions against plaintiff’s interest and tending to show that he had an interest in the disposal of the option lands, plaintiff could explain the letters and show that they related to another contract made with defendant; written admissions not being conclusive, but being subject to rebuttal or explanation.</p> <p>Evidence — Competency—Intent.</p> <p>2. The intent of a person in doing an act, or in uttering a declaration, when material, may be testified to by the actor, whether he is a party or not, and however inconclusive or inconsistent his testimony may be; that going only to its weight.</p> <p>Brokers — Actions for Compensation — Admissibility of Evidence,</p> <p>3. In an action for commissions, claimed to have been earned by purchasing land for defendant, where defendant claimed that plaintiff received a commission from the seller of a tract in violation of his relations as agent, which commission plaintiff claimed was received for defendant’s benefit and by his authority, evidence was admissible of the employment and the extent of the authority of another, employed by defendant to assist plaintiff in securing the options, who, by plaintiff’s direction, communicated to defendant the proposed terms for the purchase of the tract in question, but the compensation he was to receive from defendant was immaterial.</p> <p>Evidence — Relevancy—Facts Forming Part of Transaction.</p> <p>4. Where, in an action for commissions for buying land for defendant, plaintiff offered, testimony as to an arrangement by defendant with another to assist plaintiff in buying the land, in order to show that defendant authorized the purchase of a tract upon certain terms, which were communicated to defendant by such other testimony in connection with such evidence as to the compensation defendant was to pay the other, was not admissible under Section 702, B. & O. Oomp., permitting the whole of an act or declaration to be inquired into by the other par by, where a part thereof is given in evidence by one party; defendant not having offered any part of the transaction with such other in evidence or testified as to the terms of his employment.</p> <p>Evidence — Relevancy—Facts Forming Part of Transaction.</p> <p>5. In order to be admissible under Section 702, B. & O. Comp., permitting the whole of any declaration or conversation on the same subject to be inquired into by the other party, where a part thereof is given in evidence by one party, the rest of the conversation must be material, and affect in some way the part already given in evidence.</p> <p>Appeal and Error — Harmless Error — Admission of Evidence — Prejudicial Effect.</p> <p>O. In an action for commissions earned by the purchase of land for defendant, where plaintiff claimed that the agreement was to pay $1 an acre when he secured options on the land and deposited the deeds for defendant, but defendant claimed that plaintiff was not to receive any commission unless he exercised the options and resold the land, error in admitting irrelevant testimony that defendant hired another to assist plaintiff, and promised to pay him a certain sum, was not prejudicial, where defendant testified that such compensation was also contingent upon his acceptance of the options and resale of the land, in view of defendant’s contention as to the contract with plaintiff.</p> <p>Principal and Agent — Actions—Jury Question — Authority.</p> <p>7. Where the authority of an agent is disputed, the question is for the jury.</p> <p>Brokers — Authority—Question for Jury.</p> <p>8. While the question of the authority of an agent is for the jury, where it is disputed, the court should declare whether a given act is in excess of the agent’s authority, so that, in an action for commissions for purchasing land for defendant, the court properly instructed that any payments made by plaintiff to sellers in excess of the amount limited by defendant was without authority.</p> <p>Appeal and Error — Harmless Error-Favorable to Complaining Party.</p> <p>9. Error, in an instruction in assuming as a fact that the contract of agency was as contended by defendant, was favorable to him, and he cannot compiain thereof.</p> <p>Trial — Instructions — Requests — Necessity — Additional Instructions.</p> <p>10. In. an action for commissions claimed to have been earned by purchasing land for defendant, an instruction that, if plaintiff exceeded his authority by making a larger first payment, or paying more per acre, than authorized, and defendant knew all the material facts in connection with plaintiff’s acts, and accepted the benefits resulting therefrom, defendant by his conduct ratified plaintiff’s unauthorized act, being the correct rule, if defendant desired an instruction as to what constituted the material facts as to plaintiff’s acts in excess of his authority, he should have expressly called the court’s attention to the omission.</p> <p>Brokers — Actions—Pleading—Ratification.</p> <p>11. In an .action for commissions, claimed to have been earned by the purchase of land for defendant, where the latter claimed that plaintiff acted in violation of his agency by paying a higher price per acre than he was authorized, etc., allegations of the complaint that plaintiff notified defendant from time to time of the purchases, the purchase price, amounts of payments, etc., and defendant, knowing of the purchases and terms thereof, ratified them, as well as the allegations of the reply that the payments of the land in excess of the price thereof were made with defendant’s knowledge, and ratified by him, sufficiently alleged ratification.</p> <p>Principal and Agent — Actions—Pleading—Ratification.</p> <p>12. An allegation that the principal, with full knowledge of the facts, ratified the agent’s unauthorized act is sufficient, without setting out how it was ratified.</p> <p>Evidence — Parol Evidence.</p> <p>13. In an action on a parol contract, letters and telegrams passing between the parties some Wi months after the making of the contract are not primary evidence of the terms thereof though they contain references as to what the parties understood as a part of the contract, but are admissible as admissions of what had been previously concluded between them, subject to explanation by them.</p>

Statement by Mr. Justice Slater. Plaintiff, O. P. Bowman, brought this action on April 13, 1908, against Henry Wade, to recover money loaned to defendant, alleging, substantially: That in January, 1903, he loaned him the sum of $300; that, when the same became due in April following, defendant solicited an additional loan of $700; that on April 18th of that year plaintiff loaned him the further sum of $700 upon an agreement that the whole amount of $1,000 should stand as a…

<p>The defendant, Math Jancigaj, was indicted, tried, and convicted of the crime of murder in the first degree, and from the judgment and sentence which followed, he appeals.</p>

<p>Criminal Law — Termination of Trial — Discharge oe Duty — Acquittal.</p> <p>Section 953, B. & O. Comp., provides that, if no judge attends on the day appointed for holding a court before 4 o’clock in the afternoon, the court shall stand adjourned until the next day at 9 o’clock, and if no judge attend on that day before 4 o’clock in the afternoon, it shall then stand adjourned for the term. Defendant’s trial was commenced on October 28, 1907, the jury impaneled and testimony taken, but the next day, while counsel were proceeding with their argument, information was received that the Governor had proclaimed that day a legal holiday, whereupon the jury were allowed to separate until the next judicial day. A succession of holiday proclamations followed each day until the 5th of December, when an interval of three days ensued, during which no holidays were proclaimed. On December 8th holidays were again proclaimed, and continued until December 14th. Held, that, no court having convened during the three days’ interval between the holidays declared, the court stood adjourned for the term, which operated as an acquittal, under the rule that a discharge of the jury without legal necessity therefor, before verdict, amounts to an acquittal.</p>

<p>Homicide — Defense of Relative — Instructions.</p> <p>1. Defendants, father and son, were Indicted for murder. The son, who fired the fatal shot, testified that, after his father had held up his hands in token of submission, deceased and his relatives continued shooting into the house where the son found his father wounded and covered with blood, and, believing that his mother was also in the house, he picked up his father’s rifle and fired the fatal shot, believing his own life and that of his mother to be in danger. Held, that the court’s failure to charge on the son’s right to protect his mother from danger from an alleged unjustifiable attack on the house by-deceased and his brother, was error.</p> <p>Homicide — Defense of Relative.</p> <p>2. Where one of the defendants honestly believed that his mother was in the house when deceased continued to shoot at or into the house without apparent necessity, defendant was entitled to act on appearances, and if the circumstances were such as would have led a reasonably prudent man to believe, and he did believe, that his mother’s life was in danger, he was entitled to shoot in her defense.</p> <p>Homicide — Evidence—Threats.</p> <p>8, Where a killing is not deliberate and not in cool blood, previous threats made by one defendant are not evidence against a codefendant who had no knowledge thereof.</p> <p>Criminal Law — Instructions—Threats.</p> <p>i. Defendants’ requested instruction, that evidence of threats against decedent’s family could not be considered as against one of the defendants not shown to have had any knowledge thereof, was properly refused, where it further stated that, if the jury -were satisfied from the evidence as to which party commenced the affray, they could not consider the evidence of threats as against either defendant; the court not being authorized to eharge that, if one item of relevant evidence satisfies the jury’s mind on a given point, another item on the same point may be rejected.</p>

<p>MOBTSAfiis-Eoreclosube — Scope or Relief — Aeyebse Claims.</p> <p>The only proper object of a suit to foreclose a mortgage being to bar the mortgagor and those claiming under him, the court in such, a suit had no jurisdiction to determine an alleged title paramount to that of the mortgagor, set up by certain of the defendants in an answer containing a prayer only that the suit be dismissed as to them.</p>

<p>Indictment and Information — Form.</p> <p>1. An indictment, in general, must contain a specific description of the offense, and not merely the statement of a conclusion of law.</p> <p>Indictment and Information — Statutory Offense.</p> <p>2. Where a statute creates and defines a new offense, it is sufficient for an indictment thereunder to state the offense in the language of the statute.</p> <p>Indictment and Information — Language of Statute — “Itinerant Vender.”</p> <p>3. Laws 1905, p. 222, prohibiting any itinerant vender or hawker of any drug, nostrum, etc., for the treatment of any disease or injury, to offer the same for sale without securing a license from the board of pharmacy, as amended by Laws 1907, p. 281, defining the term “itinerant vender” to include all persons who carry on the business described, by passing from house to house or by haranguing the people on public streets or in public places, or use the customary devices lor attracting crowds, and therewith recommending their wares and offering them for sale. Held, that an information in the language of the statute charging that defendant, while being a traveling vender of a drug, offered to sell the same without securing a license, etc., was not demurrable as alleging a mere conclusion of law concerning defendant’s occupation; defendant being required to take notice that it was intended to charge that he was an “itinerant vender” as defined in the amendment.</p> <p>Statutes — Title—Plurality of Subjects.</p> <p>4. Section 8806, B. & O. Comp., provides for examination by the board of pharmacy of applicants to determine their right to registration as pharmacists, and Section8812 regulates the sale of poisons; both sections being parts of Act February 21,1891 (Laws 1891, p. 157), entitled an Act “to regulate the practice of pharmacy and the sale of poisons in the State of Oregon.” Held, that Act February 21,1905 (Laws 1905, p. 222), entitled “An Act to amend Sections 8806, 8812, of Bellinger and Cotton’s Annotated Codes and Statutes of Oregon, and to provide for the licensing of itinerant venders of all drugs, nostrums, ointments, and providing a penalty for violation thereof,” did not violate Section 20, Article IV, Constitution of Oregon, requiring that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.</p> <p>Constitutional Law — Hawkers and Peddlers — Regulation—Police Power — Equality—Classification.</p> <p>5. Laws 1905, p. 222, requiring itinerant venders of drugs, etc., to procure a license from the board of pharmacy, as amended by Laws 1907, p. 281, and prescribing a penalty for the sale of drugs by an itinerant vender without such license, ivas a proper exercise of police power, and was not in violation of Section 20, Article I, Constitution of Oregon, declaring that no law shall grant any class special privileges or immunities, in that it did not apply equally to all citizens in the State, since it applied equally to all itinerant venders of drugs which was proper basis of legislative classification.</p> <p>Constitutional Law — Class Legislation — Classification.</p> <p>6. The legislature, in passing laws regulating hawkers and peddlers, may divide them into different classes, provided the classification is reasonable and the regulatory provision applies equally to all engaged in the same class.</p>

<p>Statement by Mr. Justice Eakin.</p> <p>This is an action for personal injuries suffered by plaintiff, Joseph M. Rogers, on July 18, 1907, while employed in defendant’s sawmill. Plaintiff was employed as an assistant to Van Loo, a millwright, and, at the time of the injury complained of, he was helping Van Loo, in the line of his duty, in repairing one of the chains used in transferring timber from the main carriage to the pony carriage, which conveys the timber to the saw. The cogwheel gearing in which plaintiff was injured and the chain upon which the repairs were being made were situated immediately under the upper floor and about seven feet above the lower floor. The workmen, in making the repairs, stood upon a wooden horse placed on the lower floor. While thus engaged plaintiff’s jumper caught in the gearing and pulled him into it, injuring his arm so that it was necessary to amputate it at the shoulder joint. The evidence is not very definite as to the gearing; but, as we understand it, the power is transmitted to the cogwheel gearing and shaft, which drives the chains, by a double friction driving gear. The friction gear consists of two . friction wheels constantly revolving in opposite directions. A large disc or wheel, located between them, and which communicates the power to the cogwheel gearing, is put in motion by contact with one or the other of the friction wheels. It is controlled on the upper floor by a lever and is stopped by placing the disc at, what witnesses term, “dead center.” The arm of the operating lever on the upper floor is detachable at the floor, leaving a short portion of it below the surface of the floor. The cogwheel gearing is within 12 or 18 inches of the chain. At the time of the accident the power had been shut off and the lever removed; but there is a conflict in the evidence as to whether the gearing had ceased moving, when plaintiff commenced to make the repairs, or was still revolving by its own momentum. Plaintiff charges negligence on part of defendant — (1) its ‘failure to have a lock upon the lever which controlled the center friction wheel, and (2) failure to have the gearing covered — and alleges that the gearing was set in motion in some manner unknown to plaintiff.</p> <p>The answer denies that there was any negligence on defendant's part, and alleges that plaintiff assumed the risk of injury from the unguarded gearing, that the injury was the result of the negligence of a fellow servant, and alleges contributory negligence, in that plaintiff voluntariy took an unsafe place to work when a safe place was available to him, and that it was negligence for him to commence the repairs while the gearing was in motion.</p> <p>At -the close of plaintiff’s evidence, defendant moved for a judgment of nonsuit, for the reason that plaintiff had failed to prove a cause sufficient to be submitted to the jury, which motion was denied. At the close of the case defendant asked the court to direct a verdict in its favor, which was denied. These two rulings are the errors relied on. Upon the trial a verdict was rendered for plaintiff. Defendant appeals.</p>

<p>False Pretenses — Elements of Offense — Passing of Title.</p> <p>1. In order to sustain a conviction of false pretenses, the prosecutor must have been Induced to part with the -title to the property of which he was defrauded; mere parting with possession being insufficient.</p> <p>False Pretenses — Elements of Defense — Passing With Title.</p> <p>2. In a prosecution for obtaining money by false pretenses, consisting of directing prosecutor for $7.50 to an alleged employer which did not exist, a recital in a receipt for the money that it was a-“deposit made subject to securing position” “balance due thirty days from beginning work,” and that it would be refunded in case the applicant should produce evidence that he had applied in person to the place where he was directed and failed to get the situation, did not indicate that defendant received the money as bailee and not as payment: his promise to refund indicating an intent not to return the identical money received, but to treat the money as payment for services, and not asa bailment.</p> <p>False Pretenses — Representations.</p> <p>3. Defendant received $7.50 from prosecutor, and executed to him a receipt for that sum, for which defendant agreed to furnish correct information by which prosecutor should be enabled to secure a situation as lumberman with the “S. B. Lumbr. Co. at city.” An indictment charged that, at the time the receipt was given, defendant stated to prosecutor that such lumber company was a large firm, partnership, business, or corporation, and that defendant knew such to be the case. Held, that defendant’s representation that there was such a Arm was a representation of an existing fact on which a prosecution for false pretenses could properly be based.</p> <p>False Pretenses — 'Variance—Evidence.</p> <p>4. Where an indictment for false pretenses charged that defendant received money, evidence showing that he received prosecutor’s check on a bank, which defendant cashed before he was arrested, did not constitute a variance; the check being merely the vehicle by which defendant obtained the money.</p> <p>False Pretenses — Evidence—Oral Testimony — Corroboration.</p> <p>6. Section 1812, B. & O'. Oomp., defining “false pretenses,” does not require the pretense to be in writing; but Section 1407 declares that, on a trial for obtaining from any person any valuable thing by false pretenses, no evidence can be admitted of a false pretense expressed orally and unaccompanied by a false token or writing, but such pretense or some note or memorandum thereof must be in writing and either subscribed by or in the handwriting of the defendant. Held, that such section does not require that the memorandum contain the whole pretense, but that it should accompany and corroborate the oral evidence thereof, and hence, where the fraudulent representation was in writing, parol evidence of the conversation had between prosecutor and defendant at the time was admissible to corroborate the writing.</p> <p>Criminal Law — Parol Evidence.</p> <p>6. Where a receipt given for money pursuant to alleged fraudulent representations contained the letters “S. B. Lumbr. Oo.” to designate the name of a business concern to which prosecutor was referred for employment, parol evidence was admissible to explain the meaning of such letters and abbreviations.</p> <p>Criminal Law — Other Offenses — Motive—Intent.</p> <p>7. In a prosecution for false pretenses, testimony concerning similar offenses was admissible to show motive and fraudulent intent.</p> <p>Criminal Law — Evidence—Rebuttal.</p> <p>8. Where, in a prosecution for false pretenses, the State introduced evidence of other similar offenses to show motive and fraudulent intent, the court properly permitted defendant to explain the transactions proved by the State, but refused to allow defendant to prove additional instances not otherwise referred to, in which he had returned money received from employees for whom he had failed to procure employment.</p>

<p>Criminal Law-Review — Record—Admission oe Evidence.</p> <p>1. In the absence of a bill of exceptions, alleged error in the admission of evidence is unavailing on review.</p> <p>Criminal Law — Appeal—Objections to Indictment — Waiver.</p> <p>2. Under Section 1865, B. &. C. Comp., providing “that the objection to the jurisdiction of the court over the subject-matter of the indictment, or that the facts stated do not constitute a crime, may be taken in the trial under a plea of not guilty, or in arrest of judgment,” the objection that the facts stated in an indictment do not constitute a crime may be raised first in the appellate court, and is not waived by failing to demur or move in arrest of judgment in the trial court.</p> <p>Criminal Law — Review—Assignment of Errors.</p> <p>8. The error relied on in the review of a criminal prosecution should be clearly assigned, so that the district attorney has notice thereof.</p> <p>Criminal Law — Review—Assignment of Errors.</p> <p>4. The objections that the facts stated in an indictment do not constitute a crime, or that the trial court does not have jurisdiction of the offense, may be raised in the appellate court, though not assigned as errors.</p> <p>Criminal Law — Appeal—Review—Scope—Bill of Exceptions.</p> <p>5. Where, on appeal from a conviction, there is no bill of exceptions, the sufficiency of the information is the only subject for review.</p> <p>Indictment and Information — Information—Form.</p> <p>6. An information for murder, charging that defendant on May 1, 1908, in M. County, did then and there unlawfully, feloniously, purposely, and of his, the said defendant’s, deliberate and premeditated malice, kill and murder, one W., by then and there unlawfully, feloniously, purposely, and of his, the said defendant’s, deliberate and premeditated malice, striking, hitting, and beating him, the said W., with a sharp Instrument, a more particular description of which is to the district attorney unknown, contrary to the statutes made and provided, and against the peace and dignity of the State, was in substantial compliance with the form prescribed by Section 1804, B. & O. Comp., and form 1 of the appendix, and sufficient.</p> <p>Indictment and Information — Offense Included in Charge.</p> <p>7. Where an indictment for murder in the. first degree was sufficient to charge manslaughter, of which accused was convicted, its failure to sufficiently charge murder in the first degree was not material.</p>

<p>Criminal Law — Larceny—Accomplices.</p> <p>1. In view of the statute by its terms making larceny and the receiving of stolen goods distinct offenses, where defendant had nothing to do with the unlawful taking of a horse, his subsequent purchase of the animal did not make him an accomplice, even if he had knowledge of the previous theft.</p> <p>Labceny — Stjppiciency op Evidence.</p> <p>2. Evidence held sufficient to justify a conviction of general larceny of a horse, and not of a larceny by altering a brand.</p>

<p>Evidence — Evidence Pounded on Hearsay — Repute as to Pacts— Ownership.</p> <p>1. In a suit to enjoin the closing of an alleged street which plaintiffs claim defendants represented, upon selling lots to them, would remain open as a street, evidence that the strip was known hy the public in general as T street, and appeared upon the city and telephone directories, and was called out by the street car conductor, by that name, and that mail was addressed to residents in that vicinity as on that street, was admissible in connection with numerous other circumstances tending to show that the strip was reserved for a street to show how it was generally treated by the public in that vicinity, Section 788, subd. 12, B. &. O. Comp., making it a disputable presumption that one is the owner of property from common reputation of his ownership.</p> <p>Evidence — Hearsay—Repute as to Pacts — Ownership.</p> <p>8. Common or general reputation is admissible to show a fact in which the public have an interest or which directly affects the mass of the people in a locality.</p> <p>Dedication — Evidence—Sufficiency.</p> <p>8. In a suit to enjoin the closing of an alleged street which plaintiffs claimed that defendants represented, upon selling lots to them, would remain open as a street, evidence held to show that plaintiffs purchased the land with the understanding that the tract would be open as a street.</p> <p>Dedication —Evidence—Admissibility.</p> <p>4. In an action to restrain the closing of a tract which plaintiffs claim defendants represented, upon selling lots to them, would be open as a street, a map showing various streets platted in lots of uniform size, with a number of smaller lots along the strip which plaintiffs claim was intended to be reserved as a street, was admissible to corroborate plaintiffs’ testimony as to defendants’ statement that that tract would be opened as a street.</p> <p>Estoppel — Estoppel to Deny Dedication.</p> <p>5. Where defendants sold a number of lots, and represented to the purchasers that a tract adjacent thereto would be opened as a street, receiving an increased price for the lots because of their proximity to the proposed streets, defendants were estopped to deny that the strip was dedicated as a public street.</p> <p>Principal and Agent — Ratification—Ratification In Part.</p> <p>6. Where defendants’ agent sold lots for them, receiving an increased price because of representations that an adjacent tract would be opened as a street, defendants, having received the proceeds of the sale, cannot assert that their agent exceeded his authority in making such representations.</p> <p>Evidence — Parol Evidence— Estoppel.</p> <p>7. While ordinarily purchasers of lots shown on plats thereof cannot claim more than is shown by the plat, where plaintiffs purchased lots upon representations that an adjacent tract which was shown on the plats as fractional lots would be opened as a street, they could show such representations by parol byway of estoppel; such evidence not being admitted to vary the plat.</p> <p>Appeal and Error — Review—Trial De Novo — Equity Suits.</p> <p>8. Equity suits are tried de novo on appeal.</p> <p>Highways — Existence—Evidence.</p> <p>9. The existence of a street or highway may be proved by showing a parol dedication accompanied by the user thereof by the public.</p> <p>Dedication — Evidence—Admissibility.</p> <p>10. A parol dedication accompanied by user may be shown by the acts of the owner such as selling lots on opposite sides of a strip suitable for a street and acquiescing in its use by the public for a long period of time. .</p> <p>Morse v. Whitcomb. [54 Or.</p> <p>Dedication — Public Street — Evidence—Estoppel.</p> <p>11. Evidence examined and held sufficient to establish, the fact that defendants dedicated, as a public street, the strip of land in controversy, and should be enjoined from in any manner obstructing it.</p> <p>Highways — Easements—Obstructions.</p> <p>12. Where a party seeks to restrain an obstruction of a highway or easement, the injured party is not limited or confined to that part of the roadway or easement abutting upon or in front of his premises.</p>

Statement by MR. Justice King. This is a suit by E. E. Straw against W. C. Harris, J. C. Gray, E. Mingus, W. P. Evans and Henry Sengstacken, constituting the Board of Commissioners of the Port of Coos Bay, and involves the constitutionality of the incorporation of the “port of Coos Bay,” a municipality organized under an act of the legislative assembly adopted February 12, 1909, entitled an “Act to provide for incorporation under general law of ports in counties bordering…

Statment by Me. Justice Eakin. The defendant was indicted by the grand jury of Multnomah County for the crime of manslaughter in the following language: “G. B. Whitney is accused by the grand jury of the county of Multnomah, and State of Oregon, by this indictment, of the crime of manslaughter, committed as follows: The said G. B. Whitney on the 20th day of March, A. D. 1908, in the county of Multnomah, and State of Oregon, did feloniously and voluntarily kill one Mabel…

This is a suit by E. W. Haines against the City of Forest Grove, B. H. Laughlin and R. P. Wirtz, the Mayor and Recorder respectively of said city, to enjoin said defendants from issuing bonds for the purpose of securing and constructing a water system for the city. From a decree entered on an order sustaining a general demurrer to the complaint, plaintiff appeals.

This is a suit by James Simpson and Ann E. Simpson against G. M. Harrah to enjoin defendant from interfering with the right of plaintiffs to irrigate their lands from the irrigation ditch running from the Middle Walla Walla River. From a decree in favor of plaintiffs, defendant appeals.

<p>Appeal and Errors — Sufficiency of Bill of Exceptions.</p> <p>1. Under Section 171, B. & O. Comp., providing that “the objection shall be stated with so much ol the evidence or other matter as is necessary to explain it, but no more,” a bill of exceptions which consists only of the entire transcript of the stenographer’s notes taken at the trial is sufficient to bring up' for consideration the assignment of error that the court erred in denying defendant’s motion for a nonsuit, and that it erred in refusing a motion for a directed verdict for defendants, as consideration of those assignments requires that the bill contain all the evidence before the court at the time the motion was made, but the bill is not sufficient to present other assignments of error.</p> <p>Master and Servant — Actions for Injuries — Sufficiency of Evidence — Negligence.</p> <p>2- Evidence, In an action against a master to recover for injuries to a servant, held to make the question of defendant’s negligence and whether plaintiff assumed the risk incident to machinery ai'ound which he was working, for the jury.</p> <p>Master and Servant — Actions for Injuries — Sufficiency of Evidence — Contributory Nesligence.</p> <p>3. Evidence, in an action against a master for injuries to a servant, held sufficient to make the question of contributory negligence for the jury.</p> <p>Pleading — Issues and Pro,of — Matters to Be Proved — Admissions.</p> <p>4. In an action against a master for injuries to a servant, the complaint alleged that plaintiff was caught upon a revolving shaft by a set screw, and the answer alleged that plaintiff, who was working around and attempting to oil the machinery, allowed his clothing to “drop down on the shaft and under the guard, so that it came in contact with the said set screw, * * and he was drawn into the said machine.” Meld, that the admission in the answer renders unnecessary any proof that plaintiff’s clothes caught on the set screw.</p> <p>Appeal and Error —Bill of Exceptions —Necessity—Waiver — Power.</p> <p>5. A bill of exceptions is required by statute, and not by court rules, so that counsel cannot waive a bill of exceptions, where it is necessary to raise the question presented for review, or stipulate to submit the case on a trail-script of the evidence.</p> <p>Appeal and Error — Briefs—Statement of Facts — Failure to Deny.</p> <p>6. Respondent need not object to the statement of fact made in appellant’s brief and does not assent thereto by his failure to deny.</p>

Statement by Mr. Chief Justice Moore. This is an action by Floyd L. Officer against Finlay Morrison and C. G. Guernsey on an injunction bond to recover the costs and. disbursements which the plaintiff incurred in defending a suit.

The defendant, A. J. Hembree, was tried and convicted of murder in the first degree, and from the sentence following such conviction, he appeals.

<p>Insane Persons — Avoidance of Transfers of Personal Property.</p> <p>1. A person who, when insane, delivered personal property to another, who knew of the insanity shortly afterwards, may, on .being restored to sanity, demand and receive a return of the property.</p> <p>Pledges — Evidence as to Character of Transaction — Burden of Proof.</p> <p>2. One admitting that another is the owner of personal property, but insisting that it is subject to a pledge to him for pre-existing debt, has the burden of proving the debt and pledge.</p> <p>Pledges — Transfers of Personal Property — Obligation of Transferee.</p> <p>8. One receiving persona] property from an insane person and learning of the insanity must take ordinary care of the property with a view of returning it on the latter being restored to sanity.</p> <p>Appeal and Error — Findings—Conclusiveness.</p> <p>4. A finding of the trial judge on conflicting testimony will not be disturbed on appeal.</p>

The defendant, J. A. Finch, was indicted by the grand jury of Multnomah County for murder in the first degree, in the killing of one Ralph D. Fisher. A trial resulted in his conviction as charged and, having been sentenced to death, he appealed.

<p>Attorney and Client — Compensation—Protection oe Lien — Remedy.</p> <p>1. The remedy of an attorney receiving from his client, who had obtained a judgment against a third person for a specified sum, and who had instituted a suit to subject real estate to the payment of the judgment, a half interest in the judgment and in the security therefor claimed in the pending suit, is only in equity on his ceasing to represent the client and on the client satisfying the judgment pursuant to a fraudulent settlement with the third person.</p> <p>Lis Pendens — Suit by Assignee of Judgment — Effect.</p> <p>2. A suit by an assignee of a half interest in a judgment and in real estate sought to be subjected to the payment of the judgment in a pending creditor’s suit, to protect his rights as against a fraudulent settlement entered into between the assignor and the judgment debtor stipulatingforthe cancellation of the original judgment and of the decree in the creditor’s suit subjecting real estate to the payment of the original judgment, brought within the life of the original judgment, is Us pendens and keeps alive the equitable lien, and a decree establishing his rights may be rendered after the judgment has ceased to be a lien on the real estate.</p> <p>Judgment — Assignments —Effect as Transferring Personal Liability of Judgment Debtor.</p> <p>8. An assignment of a part of a judgment adjudicating the personal liability of the judgment debtor, transfers to the assignee a portion of such personal liability.</p> <p>Judgment — Lien—Remedies After Termination.</p> <p>4. A judgment creditor assigned a half interest in the judgment and in real estate sought to be subjected to the payment of the judgment by a pending creditor’s suit. Thereafter the judgment creditor obtained a decree subjecting the real estate to the judgment, and thereafter he and the judgment debtor, in'fraud of the assignee, settled the litigation. The assignee, before the filing of the cancellation of the judgment and during the life of the judgment, sued to enjoin the filing thereof and to secure his interest in the real estate. Pending that suit, a suit to foreclose a mortgage on the real estate was brought, and the assignee filed a cross-bill seeking to enforce his interests under the assignment. Held, that the right of the assignee to enforce his portion of the judgment as a lien on the land was not affected by the fact that execution had not issued on the judgment within ten years from the rendition thereof at the time of the institution of the foreclosure suit; but his rights depended on a new decree, which must be rendered pursuant to his cross-bill, reserving to him his rights as they existed at the time of the fraudulent settlement.</p> <p>J UDGMENT —LlEN—COMMENCEMENT.</p> <p>5. Where a judgment creditor obtained a decree against the judgment debtor and his grantees, setting aside deeds of lands and subjecting the same to the payment of the judgment, the lien of the decree ran from the time it became final, and lapse of time from the entry of the judment did not operate to cancel it.</p> <p>Judgment — Partial Assignment — Effect.</p> <p>6. A partial assignment of a judgment without the consent of the judgment debtor is not enforceable at law. but operates as an equitable assignment, and the judgment debtor, having knowledge of the assignment, cannot settle with the judgment creditor to the prejudice of the assignee.</p> <p>Election of Remedies — Effect—Remedies Barred.</p> <p>7. The fact that an assignee of a part of a judgment, commenced an attachment against the judgment creditor to attach the sum paid by the judgment debtor in consideration of a settlement of the judgment, pursuant to an agreement between the judgment creditor and judgment debtor, does not estop the assignee from instituting a suit to enforce his rights against real estate made subject to the payment of the judgment; the judgment debtor not having been misled or caused to act to his injury.</p> <p>Limitation of Actions — Pleading as Defense — Necessity.</p> <p>8. The defense of limitations, if not taken by demurrer or answer, is waived.</p> <p>Appeal and Error — Presentation of Defense Below — Limitations.</p> <p>9. Where a mortgage foreclosure trial proceeded until the close of the mortgagee’s case without raising the issue of limitations, and the mortgagor’s liability was conceded, the defense of limitations was waived, and an answer subsequently filed without leave of court, setting up the defense of limitations, must be disregarded on appeal, though a motion to strike out the answer was not allowed</p> <p>Bills and Notes — Consideration—Prima Facie Evidence.</p> <p>10. A note itself is prima facie evidence of the consideration therefor.</p> <p>Mortgages — Foreclosure—Personal Judgment.</p> <p>11. Where the decree in a creditors’suit was not intended to operate asa personal judgment against the fraudulent grantor, but only as a determination of the amount due interveners to settle the extent of the liability of the property involved therein, intervenors were not entitled to a personal judgment against such fraudulent grantor in a subsequent suit to foreclose a mortgage on the property.</p> <p>Judgment — Payment—Presumption—Equitable Execution.</p> <p>12. A creditors’ suit, commenced during the life of a judgment, to subject property to the payment thereof, not available by execution at law, operates as an equitable execution sufficient to suspend limitations under Section 241, B. & C. Oomp., providing that, after the lapse of ten years without an execution, a judgment shall be conclusively presumed to be paid.</p>

Harry Daley was indicted for the crime of murder in the first degree and by the verdict of a jury was found guilty as charged in the indictment. From the judgment of death following such conviction, he appeals.

<p>Homicide — Manslaughter in Committing Abortion — Construction op Statute — Elements of Crime — “Pregnant With Child” — “In Case op the Heath of Such Child.”</p> <p>1. Section 1748, B. & O. Comp., provides that, if any person shall administer to any woman pregnant with a child any medicine, drug, or any substance whatever, or shall use or employ any instruments, or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter. Held, that the term “pregnant with child” as used therein designates the foetus throughout the period of gestation, and the term “in case of the death of such child,” which constitutes the consummation of the crime, equally with the death of the mother, would seem to mean the death of the foetus either before or after quickening.</p> <p>Words and Phrases — “En Ventre Sa Mere.”</p> <p>2. The term “en ventre sa mere” comes clearly within the description “a child living at the time of its father's death.”</p> <p>Words and Phrases — “Posthumous Child.”</p> <p>8. A “posthumous child” is in esse from the time of its conception.</p> <p>Nuisance — Location and Publicity.</p> <p>4. There are some nuisances in which the act complained of may be wrongful, bub constitutes a nuisance only by means of its location or publicity, and there may be an act or condition that is rightful, or even necessary. but which may become a nuisance by the same means, .but there is also a class of nuisances arising from the use of real property, and from one’s personal conduct, that are such per se irrespective of their location or publicity.</p> <p>Nuisance — Criminal Offense — Keeping “Maternity Hospital” for abortions.</p> <p>5. Section 1930, B. & C. Comp., generally known as the “nuisance statute,” provides that if any person shall willfully and wrongfully commit an act which grossly injures the person or property of another, or grossly disturbs the public peace or health, or openly outrages public decency, and is injurious to public morals, he shall be punished, etc. Held, that the acts complained of in an indictment thereunder, charging the establishment and maintenance of a public “maternity hospital” for willfully, wrongfully, and unlawfully committing, producing, and procuring abortions, and of having willfully and wrongfully committed abortions therein, openly outrage public decency, are injurious to public morals, and constitute a nuisance, though they are not performed in a public place, and though they do not disturb the peace or quiet of the community or the public.</p> <p>Nuisance — Keeping Maternity Hospital for Abortions — Requisites of Indictment.</p> <p>6. The offense of one who is guilty of a nuisance in keeping a maternity hospital for committing abortions relates to the business or condition, and an indictment therefor need not allege that the acts of defendant in producing abortions were done in cases where the operation or procurements were unnecessary, though if there was a statute authorizing the procuring of abortions in certain eases, it might be necessary to negative such exceptions.</p> <p>Indictment and Information — Description of Offense Negativing Exceptions in Statute.</p> <p>7. An indictment must negative exceptions in the statutory description of an offense charged.</p> <p>Indictment and Information — Duplicity—Nuisance—Other Offense Included in Charge.</p> <p>8. An indictment, under Section 1930, B. <fe 0, Comp., for a nuisance in keeping a “maternity hospital” for abortions, charged in connection therewith that defendants in such place, on a specified date, “did willfully and wrongfully commit and produce an abortion upon one M. R., the .said M. K* then and there being a woman pregnant with child,” and that they also did then and there between certain dates “willfully and wrongfully commit and produce, upon women then and there pregnant with child, the names and number of which are to the grand jury unknown, abortions, contrary to the statute,” etc. Held, that these allegations of abortions did not state facts constituting a crime, under Section 1748, relating to manslaughter in committing abortions, and were not intended to, but were only allegations of acts done in performance of the purpose charged, which are necessary elements of the nuisance, and do not charge separate offenses.</p> <p>(Mr. Justice King dissenting.)</p> <p>(Mr. Justice Slater concurring in dissent.)</p>

<p>statutes — Construction—Amendment.</p> <p>1. An amendment is to be construed as if incorporated in the original act at the time enacted, and no clause is to be left inoperative.</p> <p>Forcible Entry and Detainer — Review—Additional Undertaking.</p> <p>2. Section 5748, B, & O. Comp., declares that the rules of practice governing actions generally in a justice’s court shall yield to the special procedure provided for forcible detainer. Section 5754 provides that no appeal shall be taken by defendant in forcible detainer until he shall in addition to the undertaking required bylaw upon appeal, give an undertaking for the payment to plaintiff of twice the rental value of the property of which restitution shall be adjudged. Act February 23, 1907 (Law's 1907, page 132), amends Section 5746, B. & O. Comp., so as to confer concurrent jurisdiction on the circuit court in forcible detainer with a justice’s court. Held, that the special procedure provided for forcible detainer is not confined toa justice’s court, but applies in the circuit court to the exclusion of the usual procedure there, and that the additional bond required by Section £754 must be given in an action brought in the circuit court as well as if brought in a justice’s court.</p> <p>Forcible Entry and Detainer — Review—Permission to File Omit- . ted Undertaking.</p> <p>3. Section 549, subd. 4, B. & O. Oomp., providing that where a party gives notice of appeal, and thereafter omits, through mistake, to do any other act, including the filing of the undertaking required by that section, necessary to perfect the appeal or stay proceedings, he may be permitted to amend or perform such act, does not empower the Supreme Oourt to permit to be filed the additional undertaking for an appeal required by Section 5754 in unlawful detainer, as it is a condition precedent to the appeal, and in addition to, and not a substitute for, the undertaking required by Section 549.</p>

This is a habeas corpus proceeding by James R. Barnes against Cora Long to recover the custody of Joseph Lester Barnes, a minor. From a judgment in favor of defendant and dismissing the writ, plaintiff appeals.

Statement by Mr. Chief Justice Moore. This action was commenced April 3, 1906, by Peter O’Sullivan against J. M. Blakely, sheriff, to recover the possession of personal property, or its value in case possession thereof could not be secured, and damages for the alleged wrongful taking and the unlawful detention.

<p>Criminal Law — Evidence—Other Offenses.</p> <p>1. Defendant was charged with having killed deceased, the proprietor of a secondhand store', by striking him with a gas pipe wrapped In newspaper, as deceased turned to show defendant an article for which he had Inquired. Sixteen hours before another secondhand dealer had been struck on the head with a rusty iron bar wrapped in newspaper In the same manner, and twenty-four hours after the attack on deceased, defendant entered a Chinese tailor shop with a rusty piece of gas pipe wrapped in a newspaper and hankerchlef, and requested to be shown an article of merchandise from one of the shelves. The Chinaman saw the pipe, and, on inquiry, defendant stated he was working for the gas company. As the Chinaman turned to get the article, defendant struck him with the pipe, but the blow failed to stun him, and he pursued defendant, who, when arrested, stated that he thought he had killed the Chinaman, having knocked over a number of his kind, and did not think the Chinaman would be able to identify him. On it becoming known that some one had killed deceased, who was a Jew, defendant stated, “They ought to kill all the God damned Jews.” Held, that evidence of the assault committed on the Chinaman and on the storekeeper preceding the assault on deceased was admissible in a prosecution for killing deceased.</p> <p>Criminal Law — Witnesses—Indorsement—Identity.</p> <p>2. The object of placing the names of witnesses on the indictment being only to identify the person who testified before the grand jury, the descriptionof a witness whose true name was “Thomas Kinney” as “Thomas Leondor” was not objectionable where it appeared that the witness was a member of an acrobatic trio, known as the “Leondor Bros. Trio,” that he was also known as “Thomas Leondor,” and that he was employed in a saloon known as “Leondor Bros. Saloon.”</p>

<p>Appeal and Error — Law of the Case.</p> <p>1. A Judgment of an appellate court concerning a subject not in issue is void and subject to collateral attack, and may be disregarded by the trial court; but it cannot be so disregarded for fraud or mere irregularities.</p> <p>Divorce — Property Rights — Determination—Acquiescence.</p> <p>2. Where the parties to a divorce proceeding made no objection to the determination of their property rights in the property in controversy, they impliedly consented to such determination concerning real estate mentioned in the pleadings in the action, and the husband, having been directed to convey certain of such real estate to his wife, acquiesced in the decree by executing a deed to her in accordance therewith.</p> <p>Appeal and Error — Prior Appellate Determination — Law of the Case.</p> <p>3. Where, on appeal from a divorce decree, it was not suggested that the holding awarding certain property to the wife was in conflict or inconsistent with any of the issues, the decree of the Supreme Court, at the expiration of the time allowed for rehearing, was not subject to review on any other appeal, or in proceedings in any court in which the question might arise, but became the law of the case.</p> <p>Trial — Waiver of Irregularities.</p> <p>4. An order overruling a motion for a nonsuit will not be disturbed on appeal, when the omission, if any, is afterwards supplied by either party to the proceeding.</p> <p>Appeal and Error — Motion for Nonsuit — Review.</p> <p>5. The denial of a motion for a nonsuit must be reviewed on appeal with reference to the entire record submitted, and must be affirmed if the proof adduced was admissible and discloses facts entitling the case to be submitted to the jury.</p> <p>Trial — Reception of Evidence.</p> <p>6. Where a part only of the judgment roll was material to an issue, the court did not err in refusing to admit the entire record.</p> <p>Divorce — Property Rights — Determination.</p> <p>7. The individual property of a married woman, not growing out of the marriage relation, or the proceeds thereof, is not a proper subject for adjudication in an action by her for divorce, as against a timely objection.</p> <p>Judgment — Conclusiveness—Findings of Pact.</p> <p>8. Findings of fact leading to a decree, affirmed by the Supreme Court, in a prior action between the parties, cannot be considered in a subsequent proceeding, so far as they are in any manner inconsistent with the decree affirmed.</p> <p>Judgment — Prior Adjudication — Determination of Issues — Opinion.</p> <p>9. Where a decree, affirmed on a prior appeal, is ambiguous, or fails to show on which of several issues it is founded, the opinion of the Supreme Court may be examined, to determine the point actually decided.</p> <p>Divorce — Property Rights — “Property Growing Out of Marriage Relation.”</p> <p>10. The expression “property growing out of marriage relation,” which a court in a divorce proceeding is authorized to distribute, has reference only to that class of property, the interest in which of either husband or wife attaches by operation of law, as dower, curtesy, tenancy by the entirety, or in case of divorce, provision for division of which is made in Section 511, B. & C. Comp., and does not apply to property belonging to the wife.</p> <p>Divorce — Action by Divorced Wife Against Husband — Statutes.</p> <p>11. Under Sections 5244, 5249, B. & O. Comp., extending to a wife, as well as to the husband, such rights of action with reference to each other as exists with reference to other parties, a feme sole, after divorce was authorized to sue her former husband in assumpsit to recover rents collected by him from her separate property, for which he had failed to account.</p> <p>Judgment — Res Judicata — Questions Concluded.</p> <p>12. A judgment or decree is conclusive as to every matter actually litigated, and, with certain exceptions, as to every matter which might have been litigated, or decided as an incident thereof.</p> <p>Judgment — Parol Evidence — Contradiction of Record.</p> <p>18. Extrinsic proof and parol evidence is inadmissible to explain what was formerly adjudicated in a prior decree respecting matters not there in issue.</p> <p>Husband and Wipe — Necessaries—Wife’s Liability — Statutes.</p> <p>14. Section 5239, B. & O. Comp., providing that husband and wife, or either of them, is chargeable with family expenses, including necessaries or household supplies, and that they may be sued jointly in reference thereto, is for the protection of creditors only, and does not change the common-law duty of the husband" to maintain his wife during coveture and to provide family necessaries, as between them.</p> <p>Husband and Wife — Wife’s Separate Property — Rents and Profits —Authority of Husband.</p> <p>15. Where a husband, as his wife’s agent, rented her separate property to a merchant tenant, his agreement that the family account for necessaries purchased of the merchant should be deducted from the rent was not within the scope of his authority, nor binding on the wife by reason of her mere acquiescence or silence, in the absence of clear and distinct acts on her part showing her consent thereto.</p> <p>Husband and Wife — Wife’s Separate Property — Rents—Applicaoation to Taxes or Improvements.</p> <p>16. Where a husband acted as his wife’s agent to rent her separate property, he was not, by such fact alone, authorized to apply the rent received to the payment of taxes or improvements.</p> <p>Divorce — Conclusiveness of Decree — Property Rights.</p> <p>17. Where, in a divorce proceeding, the decree, in addition to granting a divorce, granted plaintiff a money allowance in specific real property with the intent that such allowance should amount to a division of property accumulated by their joint effort during coverture and the settlement of all rights growing out of the use of the property, and after ilnal adjudication by the Supreme Court both parties acquiesced therein and accepted the benefits of the decree, it was conclusive against the wife’s right to recover rents collected from the property which the husband conveyed to her, which accrued prior to.such conveyance.</p> <p>(Mr. Justice King dissents from the last paragraph only.)</p>

<p>Appeal and Error — “Final Decree.”</p> <p>1. The “final decree” in partition, within Section 6, Article VII, Constitution of Oregon, limiting the review by the Supreme Court of decisions of the circuit court to those that are final, is that entered on confirmation of the report of referees.</p> <p>Appeal and Error — Dismissal—Want op Jurisdiction.</p> <p>2. It being patent from the face of the record that the decree in partition is interlocutory, the court will of its own motion dismiss the appeal therefrom for want of jurisdiction.</p>

<p>Eminent Domain — Petition for Road — Gateway —Expense of Fencing.</p> <p>1. Laws 1876, p. 25 (Hill’s Ann. Laws 1892, § 4075), provided for tlie opening of “roads of public easement.” Laws 1899, page 164 (Section 4966, B. & O. Comp.), provided for a county road thirty feet wide, or a gateway, not less than ten nor more than thirty feet wide. Laws 1903, p. 269, § 20, provided that a board of county viewers should locate the road, and as amended by Laws 1907, p. 255, provided for a road not exceeding sixty feet wide, or a gateway not less than ten nor more than thirty feet wide, .to be viewed out and located by a board of county viewers. Held, that where a county road “and” gateway were petitioned for, but the lower courts recognized the proceedings to be for the establishment of a gateway, and not for an open road, and so established it, the expense of fencing the road was not an element of the damages suffered by the owners of the land through which the road passes.</p> <p>Costs — Dependent on Statute — Speciai, Proceedings.</p> <p>2. Where a special proceeding for tlie condemnation of land for public purposes is provided by statute, and no provision is made for recovery of costs, none can be awarded; but, where the question of damages has been tried out as in an ordinary action at law, the general laws on the subject of the costs will prevail, so that -where in such case the decision of the circuit court has been affirmed on appeal, respondent is entitled to costs.</p>

<p>Appeal and Error — Cross-Appeal—Failure to Take.</p> <p>1. Where no cross-appeal is taken, respondent cannot be heard to question the sufficiency of the findings and decree of the court below, though the case is of an equitable nature.</p> <p>Partnership — Personal Liability — Violation op Agreement.</p> <p>2. Where a partner, in violation of an express agreement not to extend credit to relatives, advances money from the partnership funds or sells partnership goods to an impecunious relative, he is personally liable for the account.</p> <p>Partnership — Dissolution—Liability—Personal Account.</p> <p>8. Where, upon the dissolution of a partnership, one of the partners was indebted to the firm upon his private account, he was chargeable with the full amount of the debt, notwithstanding the fact that the purchaser, at the receiver’s sale of the assets and accounts of the firm, was the other partner.</p>

<p>Logs and Logging — Liens—Conversion op Logs-Actions — Pleading.</p> <p>1. Under Section 87, B. & O. Oomp., providing that in pleading a judgment facts conferring jurisdiction need not be stated, a complaint based on Section 5692, making a person rendering impossible of identification logs on which there is a lien liable to the lienholder, which alleges that the lien on the logs was duly foreclosed in a suit instituted for that purpose, need not allege the facts showing the validity of the lien; the validity having been presumably established.</p> <p>Logs and Logging — Liens—Conversion of Logs — Actions—Pleading.</p> <p>2. A complaint based on Section 5692, B. & O. Comp., making a person who, without the consent of the lien claimant, renders impossible of identification any logs on which there is a lien liable to the lienholder, which alleges that defendants, fraudulently conniving, conspiring, and confederating to cheat and defraud plaintiff out of his labor and lien security, destroyed and removed all of the logs and rendered the same impossible of identification, and appropriated the same to their own use, sufficiently negatives the consent of plaintiff to the removal as against a demurrer.</p> <p>Appeal and Error — Denial of Motion for Nonsuit — Review.</p> <p>3. The denial of a judgment of nonsuit will not be reviewed on appeal unless it appears from the bill of exceptions that all the testimony offered at the time the motion for nonsuit was interposed has been brought up for examinination, and, when this is not done, it will be presumed in favor of the judgment that there was sufficient evidence to warrant a submission.</p> <p>Evidence — Sufficiency.</p> <p>4. A plaintiff having the burden of proof in a civil action must introduce suoh testimony as will reasonably show his right of recovery, but he need not prove his case beyond a reasonable doubt, and, where the evidence produced by the respective parties does not preponderate in favor of plaintiff, the jury must find for defendant.</p> <p>Evidence — Sufficiency.</p> <p>5. Where the evidence is equally balanced, or so close as to make it doubtful which party has presented the greater weight of evidence, the verdict should be against the party having the burden of proof, but the mere fact that the evidence of plaintiff leaves the jury in doubt as to what the amount of the verdict should be, does not require a finding for defendant.</p> <p>Logs and Logging — Liens on Logs.</p> <p>8. Under Section 5692, B. & O. Oomp., making one rendering impossible of identification logs on which there is a lien liable to the lienholder for damages to the extent of the sum secured, a defendant appropriating to his own use logs subject to a lien in favor of another, and the value of the logs exceed or equal the value of the lien, is liable to the lienholder.</p>

Statement by Mr. Chief Justice Moore. This is an action by Margaret Fetting, as administratrix of the estate of her husband, William F. Fetting, deceased, against Martin Winch, to recover damages resulting from the death of her spouse.