Volume 55 — Oregon Reports

<p>Negligence—Contributory Negligence—Willful Act.</p> <p>1. Where defendant’s conduct resulting in an injury is willful, it is no longer negligence, and hence the defense of contributory negligence cannot arise; such defense being only applicable where negligence is charged against defendant.</p> <p>Torts—Willful Act—Destruction of Property.</p> <p>2. Plaintiff was traveling with a horse and buggy over a road which passed through a gate near defendant’s house. As plaintiff approached the gate, he advanced to open it when defendant stood in the gateway. An altercation ensued, in which defendant struck plaintiff, when the horse which had been left unhitched became frightened, ran away, fell over a cliff, and was killed, and the buggy and harness seriously damaged. Held3 that plaintiff was under no obligation to provide against a probable assault, and hence his failure to tie the horse before engaging in the altercation will not avoid defendant’s liability for the loss sustained.</p>

From Linn: William Galloway, Judge. Statement by Mr. Justice McBride. This is a suit brought by G. M. Paul, and others, against W. S. Paul and Lillie D. Paul, his wife, to set aside certain conveyances made by W. A. Paul, now deceased, to defendant, W. S. Paul, and to cancel a certain agreement made between said deceased during his lifetime and W. S. Paul. Plaintiffs are legal heirs of W. A. Paul, and defendant, W. S. Paul, is also a son of W. A. Paul.

From Marion: William Galloway, Judge. Statement by Mr. Justice Bean. This is a suit by Eoscoe C. Thomas, substituted executor of the will of William Cosper, deceased, against A. T. Gilbert and others. Held: as security, certain notes and collaterals, including 105 shares of stock owned by Gilbert in the First National Bank of Moscow, Idaho. The Moscow Bank was incorporated under the national banking act, with a capital of $50,000, divided into 500 shares of $100 each.

<p>Mines and Minerals—Wages—Liens—Persons Entitled—Construction of Statute—“Person Who Shall Perform Labor."</p> <p>1. Section 5668, B. & C. Comp, as amended by Laws 1907, p. 294, provides that “every person who shall perform labor” about a mine shall have a lien, etc. Section 5669 provides that “every laborer or materialman” claiming under the act shall take certain steps to perfect his lien. Held, that the phrase “every person who shall perform labor on any mine,” etc., applies to ordinary laborers who perform actual, visible toil with their hands or muscles, other kinds of service not being expressly mentioned, and does not embrace superintendents or managers.</p> <p>Mines and Minerals—Liens—Amendment of Statute.</p> <p>2. Section 5668, B. & C. Comp., containing a provision granting a lien to a person working in a boarding house in connection with a mine, was amended by Laws 1907, p. 294, which omitted that provision and repealed all acts and parts of acts in conflict with the provisions thereof, and the lien as to such laborer was destroyed.</p> <p>Constitutional Law—Vested Rights—Liens—Effect of Repeal of Statute.</p> <p>3. A lien is a creation of statute, not a vested right, and the legislature by repealing a statute may take it away, provided it leaves the remedy at common law intact.</p> <p>Witnesses—Cross-Examination—Scope.</p> <p>4. Where questions asked by defendant on cross-examination were a part of its case in chief, plaintiff’s objections thereto were properly sustained.</p> <p>Trial—Conditional Admission of Evidence—Expense of Introduction—Offer to Pay.</p> <p>5. Where in an equity case, objection was sustained to questions asked on cross-examination as properly being part of the party’s case in chief, that party’s request to have the testimony taken notwithstanding the ruling was properly refused, where it did not offer to pay the expense thereof, provided the evidence should finally be held inadmissible.</p>

<p>From Multnomah: Earl C. Bronaugh, Judge.</p> <p>This is an action by Multnomah County against X. J. Faling wherein judgment was rendered in favor of plaintiff for want of an answer and defendant appeals.</p> <p>On Motion to Dismiss.</p>

From Baker: William Smith, Judge. Statement by Mr. Chief Justice Moore. This is a suit by George Strickland against the Commercial Mining Company, a corporation, to determine the right of possession of about six acres of mineral land in Baker County, Oregon.

From Curry: James W. Hamilton, Judge. Statement by Mr. Chief Justice Moore. This is a special proceeding instituted by Oiiinna Jensen against Curry County to review the action of the county court thereof, in the matter of relocating a county road over the plaintiff’s land.

<p>From Union: John W. Knowles, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is an action brought by plaintiffs against defendants issuing out of an alleged breach of contract. The complaint avers that on October 26, 1907, plaintiffs, as partners, were the owners of a bjack Perdieron stallion of about 1,800 pounds weight, and of the value of $2,000; that defendant was in possession of a small stallion named Mosco, of the value of about $1,000, of which, he represented to plaintiffs, he had full right to dispose; that on said date plaintiffs and defendant entered into a trade or swap, whereby it was agreed that the former should fully part with the title and possession of the black stallion and give their promissory notes for the total amount of $1,200, and payable to the order of A. C. Ruby & Co., to the defendant, and that defendant, in consideration thereof and in exchange therefor, should retain possession of the stallion Mosco, and should, within 60 days from and after said date, sell and dispose of Mosco, and should place in a bank to the credit of the plaintiffs good bankable promissory notes of the full face value of $3,000; that plaintiffs thereupon delivered the black stallion and the $1,200 in notes to defendant, but that the latter wholly failed to deposit the $3,000 in notes, and failed and still fails and refuses to sell or dispose of the stallion Mosco. 1</p> <p>The answer admits that plaintiffs were the owners of the black stallion, but denies that he was of the value of $2,000, or any other or greater sum than $-; admits that defendant on October 26, 1907, was in possession of the stallion Mosco; and that he represented he had fully power to sell and dispose of him, but denies the other allegations of the complaint. For a further defense it is averred in the answer that at the date of said trade, A. C. Ruby & Co., of Portland, Oregon, were engaged in the business of dealing in stallions, and that defendant was their duly authorized agent for the purpose of making sale of such animals as were consigned to him in Oregon and elsewhere; that on this date said stallion, Mosco, was the property of A. C. Ruby & Co., and that defendant’s possession of him was as agent for said A. C. Ruby & Co., and not otherwise; than on October 26, 1907, the plaintiffs and the defendant, as the agent of A. C. Ruby & Co., entered into a contract by the terms of which the defendant sold and delivered to plaintiffs the hórse, Mosco, in consideration of the delivery to him of the black stallion, and the agreement on the part of the plaintiffs to pay A. C. Ruby & Co. the sum of $1,200 in three installments, evidenced by promissory notes of $400 each; that said contract was then and there reduced to writing and signed by the respective parties, whereupon the defendant then and there delivered the stallion, Mosco, to plaintiffs, who, in turn, delivered to defendant the black stallion and the said promissory notes; that ever since that date plaintiffs have been and now are in possession of the stallion Mosco; that A. C. Ruby & Co. are in possession of the three promissory notes, and have sold and disposed of the black stallion; and that said transaction is the same referred to in plaintiffs’ complaint. Upon the trial there was a verdict and judgment in favor of plaintiffs for $1,500 as damages, from which the defendant appeals.</p>

From Marion: George H. Burnett, Judge. This is an action by E. B. Tongue against the State Board of Agriculture of the State of Oregon to recover the premium offered as a purse and earned by the plaintiff in a certain trial for speed at the State Fair during the year 1904. The defendant filed a demurrer to the complaint which was sustained! and from the order rendered thereon dismissing the complaint, plaintiff appeals.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Eakin. This is an action of ejectment by August Zeuske against Emma Zeuske, who is in possession of the premises as administratrix of the estate of Edward Zeuske, deceased, who was a son of the plaintiff. On November 19, 1897, plaintiff acquired title to the lands in dispute, consisting of 320 acres, by purchase from the First National Bank of Pendleton, for the consideration of $3,700.

<p>Mortgages—Assignment—Transfer of Note.</p> <p>1. An indorsee of a note secured by a mortgage is the owner of the mortgage without a further assignment thereof.</p> <p>Taxation—Tax Deed—Presumptions.</p> <p>2. A prima facie presumption of regularity of the assessment, levy, and sale created by the offer in evidence of a tax deed raised by Section 2823, Hill’s Ann. Laws 1892, may be overcome by recitals in the deed itself which controvert the regularity of any essential step in the proceedings.</p> <p>Taxation—Assessment—Designation of Ownership.</p> <p>3. An assessment of land to “E. R. Tyrrel, and to all owners and claimants, known and unknown,” was alternative and void.</p> <p>Taxation—Delinquent Taxes—Collection—Interest.</p> <p>4. Under Section 2814, Hill’s Ann. Laws 1892, providing for the collection of delinquent taxes, such taxes did not bear interest.</p> <p>Taxation—Delinquent Taxes—Interest.</p> <p>5. A landowner’s obligation to pay taxes not being founded on contract, express or implied, delinquent taxes do not bear interest, in the absence of an express statutory provision imposing it.</p> <p>Taxation—Tax Liens—Priority.</p> <p>6. Under the law existing in 1892, a mortgage lien on land was prior in right to a subsequent lien for taxes.</p> <p>Subrogation—Bight of Vendee—Liens—Payment.</p> <p>7. Subrogation may be applied in favor of a vendee who, though not personally liable, has paid'the vendor’s debt, which is a charge on the land, and which, if not paid, may cause the vendee to lose his interest therein.</p> <p>Mortgages—Satisfaction—Existence of Other Lien.</p> <p>8. The fact that an intervening lien was of record when defendants, being the owners of a tax title on the land, purchased and satisfied a prior mortgage, did not preclude them from alleging and proving that they were ignorant of the existence of such intervening lien when the prior mortgage was released.</p> <p>Vendor and Purchaser—Bona Fide Purchasers—Rights as Against Mortgage—Recorded Satisfaction.</p> <p>9. Where the record showed that a prior mortgage had been satisfied without showing by whom payment was made, a subsequent purchaser, having no other notice than the record, could assume that payment was made by the party owing the primary duty to pay under Section 788, subd. 20, B. & G. Comp., providing that, in the absence of evidence to the contrary, it would be presumed that the ordinary course of business had been followed.</p> <p>Subrogation—Bona Fide Purchasers—Rights as Against Mortgage— Recorded Satisfaction.</p> <p>10. The fact that it appeared of record that, had some other person than * the mortgagor made payment of a mortgage which had been satisfied of record, he would have been entitled to subrogation, did not put a subsequent purchaser on inquiry to ascertairi if such other person did not make it.</p> <p>Subrogation—Persons as Against Whom Enforced—Bona Fide Purchaser.</p> <p>11. Where plaintiff purchased a mortgage on the faith of the record showing the discharge of a prior mortgage and no prior incumbrances, and had no notice that defendant, the owner of a tax title on the property, had paid such prior mortgage and satisfied it of record, relying on the validity of his tax title, plaintiff was a "bona fide purchaser, whose rights could not be postponed by subrogating defendant to the rights of the prior mortgagee on its being subsequently adjudicated that his tax title was void.</p>

From Baker: William L. Bradshaw, Judge. Statement by Mr. Justice King. This is a suit by Thos. J. Whited, William Wham, Jos. Wham, Belle M. Whited and George Whited against Samuel Cavin and others, to determine the right, as between plaintiffs and defendants, to the use of the waters of the south fork of Burnt River in Baker County.

From Morrow: Henry J. Bean, Judge. Statement by Mr. Justice Slater. The defendant has attempted to appeal to this court from a judgment rendered in the circuit court for Morrow County on June 19, 1908. At the time of the rendition of this judgment, defendant gave an oral notice of appeal, but no mention thereof was made in the journal. On May 11,1909, the trial'court, upon defendant’s motion ordered the entry of the notice to be made of record nunc pro tunc.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Slater. This is a suit for the specific performance of a written contract between J. A. Buchanan, who is an attorney at law, residing at Roseburg, in Douglas County, and the defendant, Phoebe Tennant, who resides in the state of Colorado. It recites that defendant is the owner of certain lands in that county, which had been sold for taxes, and that a deed had been issued and recorded and other conveyances made.

From Multnomah: Alfred F. Sears, Jr., Judge. This is an action by W. H. O’Neill against Edson Keith & Co., to recover the sum of $936.78, as a salary upon a contract of employment. Trial was had before the court without a jury, and judgment rendered in favor of plaintiff. Defendant insists that numerous errors were committed at the trial, which will justify a reversal of the judgment, and appeals.

From Multnomah: William N. Gatens, Judge. This is a suit by William C. Smith and others against Benjamin F. Smith and others involving the title to two lots in Block 21, Highland, Multnomah County, Oregon. From a decree in favor of plaintiffs, defendants appeal.

<p>Damages—Assessment of Damages—Inquest on Default—Evidence.</p> <p>1. Defendant, in an action for injury to a passenger on its car having defaulted, may not on assessment of the damages by the court under Section 185, subd. 2, B. & C. Cómp., where it may only offer proof in mitigation of damages, show that the glass was not broken by the collision of the car; the extent of the injury to the car being immaterial, defendant’s carelessness and plaintiff’s injury being admitted, and the only question being as to' the amount of damages .plaintiff sustained.</p> <p>Damages—Assessment of Damages—Inquest on Default—Evidence.</p> <p>2. Nor is it material that one going through the car immediately after the accident saw no one who appeared to be injured, plaintiff in her testimony not claiming to have received any injury that might be visible to the casual observer, and saying that she made no complaint at the time; so that such fact would not tend to contradict plaintiff as to the manner in which she was thrown against the seat in front of her, and as to the extent of her injury.</p> <p>Evidence—Res Gestae—Complaint of Person Injured.</p> <p>3. Statement of plaintiff, in answer to a question of her physician, some time after the accident, that she was still suffering pains, is competent.</p> <p>Trial—Offer of Evidence—Showing Materiality.</p> <p>4. Plaintiff having admitted consulting C. for treatment, it was not error to sustain objection to the question whether she said anything to witness about having been with C. for treatment, as it cannot be presumed, and the question does not indicate, that the answer would have been material.</p> <p>Damages—Assessment—Inquest on Default—Findings.</p> <p>5. On an assessment of the damages by the court under Section 185, subd. 2, B. & C. Comp., on default of defendant in an action for personal injuries, the only question for trial being how much plaintiff is damaged, special findings as to the items of damages are not required; Section 158 providing that, on the trial of an issue of fact by the court, its decision shall state the facts found, relating to the issues made by the pleadings, as defined by Sections 109 and 111.</p> <p>Appeal and Error—Review.</p> <p>6. Only errors of law can be considered on appeal, so the findings of fact and the question of excessive damages raised by a motion for new trial cannot be reviewed.</p>

From Baker: William Smith, Judge. The defendant, Ira Brinkley, was convicted of the crime of larceny and from the judgment and sentence which followed, he appeals.

<p>Criminal Law—Appeal—Failure to File Transcript in Appellate Court.</p> <p>Under Section 1479, B. & C. Comp., requiring the clerk of court, where notice of appeal is filed, to transmit copy of notice of appeal, certificate of cause, and judgment roll to the Supreme Court within five days after such notice, it is incumbent on appellant to show that any failure of the clerk to do so was not imputable to appellant; and an affidavit that in proper time he prepared a bill of exceptions, ‘‘which was duly served, settled, and filed, whereupon it was agreed by counsel that the original bill of exceptions might be sent up; that deponent prepared and signed a stipulation, which, for many months, remained with the clerk of the trial court, to be subscribed by the district attorney, and the clerk was relied upon to inform affiant when the bill of exceptions was ready; that he never knew the stipulation had not been signed, or that the transcript had not been filed in this court, until motion to dismiss was interposed”-—did not excuse appellant, and the appeal will be dismissed.</p>

<p>Marriage—Validity—Burden op Proof.</p> <p>1. Under Section 788, subd. 30, B. & C. Comp., declaring that the presumption exists that a man and woman deporting themselves as husband and wife entered into a lawful marriage, and independent thereof, the burden of proof is on the one objecting to the validity of a marriage, however celebrated, whether regular or irregular, or however proved.</p> <p>Marriage—Evidence—Presumptions.</p> <p>2. Proof of marriage, -whether solemnized in strict conformity with law "or not, entered into in good faith and under the belief that the ceremony is legal, overcomes any presumptions arising out of prior meretricious relations, and the burden of proof is on the party questioning the marriage.</p> <p>Marriage—Evidence—Presumptions—Rebuttal.</p> <p>3. Evidence of the declarations and conduct of the parties, together with other proof, held not to rebut the presumption of the existence of a valid marriage between them.</p> <p>Marriage—Evidence—Presumptions—Foreign Marriage.</p> <p>4. The fact that no record of a marriage license required by the law of a sister state can be found many years after an alleged marriage in that state does not overcome the presumption invoked in support of the legality of the marriage.</p> <p>Marriage—Legality—What Law Governs.</p> <p>5. The legality of a marriage must be determined by the law of the state in which the ceremony was performed.</p> <p>Marriage—Evidence—Rebuttal op Presumption.</p> <p>6. Where the failure to procure a marriage license does not invalidate the marriage, but only affects the officer performing the ceremony, the failure to find a record of a license is only a circumstance tending to question the marriage, unless accompanied by cogent testimony rebutting the presumption of law in favor of the validity of the marriage.</p> <p>Marriage—Presumptions—Rebuttal.</p> <p>7. Where there is evidence creating a foundation for the presumption of marriage, the presumption can only be overcome by the most cogent and satisfactory evidence.</p>

From Multnomah: ROBERT G. MORROW, Judge. The defendant, Sam Cochran, was tried and convicted for the violation of the local option law in the City of St. Johns and from the judgment following such conviction, defendant appeals.

<p>Curtesy—Constitutional Provisions—Effect.</p> <p>1. While the Constitution of Oregon, Article XV, Section 5, providing that the property of married women shall not be subject to the debts and contracts of the husband, changes the common law as to property rights of married women, except as modified by a statute giving a married woman the right to devise her real estate subject to the curtesy estate of the husband, and deprives the husband of the control, rents, and profits of the wife’s realty, it does not expressly or impliedly cut off the husband’s curtesy estate.</p> <p>Curtesy—Statutory Provisions.</p> <p>2. Section 5544, B. & C. Comp., prior to its amendment by Laws 1907, p. 152, c. 87, providing that, when any man and his wife shall be seised in her right of any estate of inheritance in lands, the husband shall on the wife’s death hold the lands for his life as tenant by the curtesy, though the husband and wife may not have had issue born alive, when considered in connection with Sections 5234, 5244, 5246, 5247, and 5250, giving a married woman the right to devise her property by will to the same extent as the husband, etc., gives to the surviving husband a life estate as tenant by the curtesy in all land of which the deceased wife had been seised of an estate of inheritance at any time during the marriage ; the seisin required as incident to the curtesy estate being seisin of the wife.</p> <p>Courts—Decisions—Stare Decisis.</p> <p>3. The decisions that Section 5544, B. & C. Comp., prior to its amendment by Laws 1907, p. 152, c. 87, providing that the husband on the death of the wife shall hold the lands of the wife for his life as tenant by the curtesy gives to the surviving husband a life estate as tenant by the curtesy in all land of which the deceased wife had been seised of an estate of inheritance at any time during the marriage, establish a rule of property, and under the rule of stare decisis they will not be overruled.</p>

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice McBride.

From Tillamook: William Galloway, Judge. Statement by Mr. Justice Eakin.

<p>Taxation—Equalization of Assessments,</p> <p>1. In view of the act of 1907 (Laws 1907, p. 450), defining the duties of the board of equalization, and which requires (sections 1, 2, and 3) the board to increase or reduce the valuation of property assessed so that the same shall be the full cash value thereof, it is not a ground for reducing an assessment of land below its true value that it is assessed higher than adjoining land, but, if the latter is assessed under its actual value, it is the duty of the board to increase its assessment, and not reduce the assessment of the land of a party complaining of the inequality.</p> <p>Scope op Review—-Writ op Review.</p> <p>2. The scope of the writ of review is to review the determination of the lower tribunal when it is has exceeded its jurisdiction or exercised the same erroneously in making such determination, and original relief cannot be secured thereby.</p>

From Tillamook: William Galloway, Judge. This is a proceeding by the Nehalem Packing Company to review the action of the board of equalization of Tillamook County in refusing to reduce the valuation of certain property assessed to plaintiff for the year 1907. From a judgment in favor of defendant the plaintiff appeals.

From Marion: George H. Burnett, Judge. Statement by Mr. Chief Justice Moore. This is an action to recover damages for an alleged breach of a written agreement.

From Tillamook: William Galloway, Judge. The defendant, Howard Edmunds, was indicted, tried and convicted of the crime of selling intoxicating liquors in violation of the local option law, and from the judgment following such conviction, he appeals.

<p>Appeal and Error—Filing Printed Abstract—Excuse for Failure.</p> <p>1. It is 'no excuse for noncompliance with Supreme Court rule 4, 50 Or. 571 (91 Pac. viii), requiring appellant, within 20 days after the transcript is filed in a civil case, to serve and file his printed abstract of the record, for failure to do which there may be an affirmance or dismissal, that it was an oversight of his attorney due to press of business through sickness of his partner.</p> <p>Costs—On Appeal—Bad Faith—Penalty.</p> <p>2. The evidence of an appeal in bad faith must be clear and convincing to authorize the statutory penalty.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Moore. . This is an action by Stella Laury against the Northern Pacific Terminal Company to recover damages for a personal injury.

From Multnomah: Thomas O’Day, Judge. This is an action by Hattie Dornsife against L. 0. Ralston to recover for injuries received from an assault and the necessary medical treatment resulting therefrom,, From a judgment for plaintiff, defendant appeals. Motion to strike from the files a bill of exceptions.

From Columbia: Thomas A. McBride, Judge. This is a suit by Christine M. Salene against S. W. Isherwood, A. F. Smith, Charles A. Burckhardt, George W. Hoyt, and William T. Muir to enjoin them from hunting on plaintiff’s farm and from maintaining any scows, house-boats or other structures upon any of the waters on or adjacent to plaintiff’s premises. From a decree in favor of defendants, plaintiff appeals.

<p>Mechanics' Liens—Enforcement—Sufficiency of Evidence.</p> <p>Evidence held to show that the amount demanded had been paid defendant’s contractor to plaintiff and that plaintiff had credited the amount to the contractor’s account instead of to defendant’s account.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice McBride. This was an action brought by James Higgins Company against L. T. Torvick, to recover damages for breach of a contract of sale of potatoes. That part of the contract which, is in writing is as follows: “Jas. Higgins Co., “317 and 319 Drum Street, Corner Oregon, “San Francisco, Cal. “L. T. Torvick has this day sold to Jas. Higgins Co. the following goods, viz.: Mt. Angel, at 80c per bushel about 500 sks.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. This is an action brought by Mary C. Francis against the Mutual Life Insurance Company of New York, to recover on an alleged contract of insurance.

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Slater.

From Tillamook: William Galloway, Judge. The defendant, W. Langworthy, was tried and convicted of violating the local option law and from a judgment and sentence to pay a fine he appeals.

<p>Pleading—Cross-Comflaint—Nature and Office.</p> <p>1. Section 391, B. & C. Comp., provides that in an action at law, where defendant is entitled to relief arising out of facts requiring the intervention of a court of equity and material for his defense, he may, on filing his answer, also as plaintiff, file a complaint in equity in the nature of a cross-bill. Held, that where defendant in a law action has an equitable right, which if worked out would defeat recovers'-, he must file a complaint in the nature of an equitable cross-bill, and the facts which he sets forth must not only be such as require interposition of equity, but the relief sought must be material to the defense. He is not restricted to the averment of merely defensive matter, but may set forth any facts entitling him to affirmative relief, though the facts and relief must in some degree form a defense either entire or partial to the action at law.</p> <p>Pleading—Cross-Complaint—Sufficiency.</p> <p>2. In an action o:i a note executed by defendant, he filed a complaint in the nature of a cross-bill, under Section 391, B. & C. Comp., which alleged that he had purchased land from plaintiff on an understanding that conveyance was not to be made until full payment had been made, and that the note was given as the first installment of the purchase price; that thereafter he assigned a half interest in the purchase to a third person, and subsequently he and the third person assigned all their interest to a certain corporation. It was charged that plaintiff had violated the terms of the contract, had ousted the corporation from the possession of the land, and it was prayed that it be decreed that plaintiff! had no right to enforce payment until he had complied with the conditions of the contract, and that the court decree the contract to be still in force. Held, that the cross-complaint was demurrable, sir^ce it in effect sought specific performance, and, conceding that failure of consideration appeared, the defense was available at law, and defendant could not refuse to pay because plaintiff had refused performance, since that would work an injury to defendants assignee, and the complaint showed that the real interest was in the corporation, notwithstanding the fact that defendant was a stockholder and president thereof.</p>

From Grant: George E. Davis, Judge. Statement by Mr. Chief Justice Moore. This is a suit by C. G. Guernsey against J. E. Marks and Mary I., his wife, to foreclose a mortgage of certain real property in Grant County, given by them to the plaintiff to secure the payment of a promissory note executed by the defendant, J. E. Marks, to the plaintiff March 2, 1907, for $250, and payable in three months with interest thereon at the rate of 10 per cent per year until paid.

From Multnomah: Thomas O’Day, Judge. Statement by Me. Justice Slatee. This is a suit by the Equitable Savings & Loan Association against John D. Hewitt and others. On September 13, 1907, this suit was begun to foreclose a mortgage on lot 5, block 9, of John Irving’s First addition to East Portland, now in the city of Portland.

From Coos: James W. Hamilton, Judge. This is an action by Stanley Oldland against the Oregon Coal & Navigation Company. From an order setting aside the judgment in favor of the defendant and granting a new trial, and a judgment in favor of the plaintiff at the new trial, defendant appeals. Respondent now files motion to dismiss the appeal.

From Union: John W. Knowles, Judge. This is a suit by the Bank of Commerce, Limited, against Charles Bertrum to restrain the defendant from disposing of a certain interest in logs, lumber and other property in Union County, upon which plaintiff claims to have a mortgage given by one W. R. Kivette. From a decree in favor of defendant, plaintiff appeals.

From Wallowa: John W. Knowles, Judge. The defendant, A1 Emmons, was convicted of the crime of violating the local option law 'and from the judgment which followed, he appeals.

<p>Licenses—Delegation op Power to City—Occupations—Attorney at Law.</p> <p>1. Under Roseburg* City Charter (Sp. Laws 1905, p. 40), Chap. 5, Sec. 34, authorizing the city to license “all such callings, trades and employments as the public good may require,” a license fee may be imposed on the occupation of attorney at law.</p> <p>Licenses—Delegation of Power to City—Construction' of Statutes.</p> <p>2. Statutes granting power to a city to license occupations are to be strictly construed.</p> <p>Licenses—Delegation of Power to City—Construction of Statutes —“Puelic Good/-’</p> <p>3. In Roseburg city charter (Sp. Laws 1905, p. 40), c. 5, § 34, authorizing the city “to license and regulate all such callings, trades and employments as the public good may require,” the words “public good” are sufficiently broad to include the raising of revenue if, in the judgment of the city council, revenue is needed.</p> <p>Statutes—Construction—Statutes Adopted Prom Other States.</p> <p>4. Where a statute of another state is adopted, it is presumed to have been adopted with the construction placed on it by the courts of that state.</p> <p>Municipal Corporations—Violation of Ordinances—Jurisdiction.</p> <p>5. Under Roseburg city charter (Laws 1905, p. 46), § 48, giving the recorder the jurisdiction and authority of a justice of the peace within the city limits, he may try persons charged with violation of a city ordinance.</p> <p>Municipal Corporations—Violation of Ordinances—Construction of Charter—Necessity of Ordinance.</p> <p>6. Roseburg city charter, § 48 (Laws 1905, p. 46), provides that “the recorder shall possess the jurisdiction and authority of a justice of the peace within the city limits. * * There shall be no right of appeal from the decision of the recorder for the violation of any ordinance unless the sentence be for imprisonment for ten days or more, or for the payment of a fine exceeding $20. * * He shall pay over to the city treasurer all moneys collected in the recorder’s court as fees and costs in trials for violation of city ordinances.” Held, that the recorder is authorized to try causes for violation of city ordinances, independent of any ordinance to effectuate and define the methods or procedure in such court.</p>

From Wheeler: Robert R. Butler, Judge. Statement by Mr. Justice King. Two suits involving the same parties and the same legal points are here presented together. In the first it appears from the complaint that the defendant, F. M. Templeton, gave two promissory notes, each for the principal sum of $480, to plaintiff, A. E. Stewart, and on the same date executed to plaintiff, D. M. Stewart, two like notes of equal amounts.

<p>Navigable Waters—Obstructions—Riparian Rights.</p> <p>1. The damming of a stream, navigable a portion of the year, to create artificial freshets for the purpose of floating logs, may be restrained where the banks of the stream are thereby washed, to the injury of the adjacent landowners.</p> <p>Navigable Waters—Restraining Obstruction—Estoppel.</p> <p>2. Neither failure to object to the construction of a dam across a stream to create artificial freshets for floating logs, nor encouragement in such construction by a member of plaintiff’s family, will estop plaintiff, an abutting landowner, to sue to restrain maintenance of such dam, where the dam would have been constructed regardless of anything that might have been said in respect thereto.</p> <p>Navigable Waters—Obstruction—Injunction—Defenses.</p> <p>3. In an action by an abutting landowner to restrain the maintenance of a dam to create artificial freshets for floating logs, it is no defense that this method of floating the logs is less injurious to plaintiff’s land than to float them without thus raising the water.</p> <p>Appeal and Error—Failure to Take Cross-Appeal.</p> <p>4. Though trial de novo is had on appeal in equity (Section 555, B. & C. Comp.), respondent cannot urge inadequacy of the award in his favor in the absence of a cross-appeal.</p> <p>Mr.' Justice McBride dissenting.</p>

<p>From Umatilla: HENRY J. Bean, Judge.</p> <p>Statement by. Mr." JUSTICE Eakin.</p> <p>This is a suit in equity originally commenced by plaintiff, Desire St. Dennis, known also as Jerry St. Denis, against Reinhold Harras, for the purpose of having canceled a lease, given by plaintiff to defendant, for the reason that the same was secured by fraud and that plaintiff was not capable of executing it. After defendant filed his answer in the case, and before the commencement of the trial, plaintiff moved the court for a voluntary nonsuit, which was denied, because the answer set up a counterclaim; and thereafter plaintiff moved the court to dismiss the amended complaint which was allowed. On July 13, 1908, the trial proceeded upon the issues raised by the answer and reply. The lease, the cancellation of which was sought by plaintiff, was executed on February 24, 1908, at Walla Walla, Wash., by Desire St. Dennis, party of the first part, to Eeinhold Harras, second party; and, so far as it is important on this appeal, is as follows:</p> <p>“That the party of the first part has leased and let, and by these presents does lease and let unto the party of the' second part those certain lands in Umatilla County, Oregon, known as the Jerry St. Dennis ranch, located on the Umatilla reservation in said Umatilla County, and consisting of six hundred and forty (640) acres, and including the home place where the party of the first part now resides, for the period of ten years from the date hereof, and party of the second part agrees to pay to the party of the first part for the use and occupancy of said land the sum of $3.00 per acre per annum to be paid yearly in advance on the 24th of February of each and every year. It is hereby understood and agreed that the party of the second part takes this lease subject to all the rights which one James Bell may have in and to the same by reason of a lease heretofore executed to him by the party of the first part hereto, the party of the second part to have possession of the twenty acres known as the home place from and after the execution of this lease.”</p> <p>The basis for the affirmative relief sought by defendant’s answer' is that since the execution of the lease plaintiff has represented to others that he was drunk when he executed the lease, and did not understand the terms, and sought to discredit the lease and on April 22, 1908, made another lease of the same premises to one Dudley, and has placed other persons in possession of the premises, claiming by deed thereto adversely to defendant; that on June 29, 1908, defendant assigned his right, title and interest under this lease to D. W. Bailey, who is now the owner thereof; that at the time of the execution of the lease neither of the parties thereto knew the description by legal subdivisions of the land; that it was intended by the parties thereto that the Jerry St. Dennis ranch included and referred to property described as follows: S. W. of N. W. 14 and lots 4 and 5 in section 4; the E. y% of N. E. 14; W. i/2 of N. E. 14; E. i/2 of N. W. 14; N. W. 14 of S. E. 14; N. E. 14 of S. E. 14, all in section 5; the N. W. 14 of S. W. 14 and lot 7 in section 4, township 8 N. range 35 E.; and the N. 14 of N. W. 14 of section 13, township 3 N., range 34 E., being what is known as the St. Dennis home place, where he now lives and has heretofore resided—that because the lands are not described in the lease by legal subdivisions plaintiff has declared his purpose to repudiate the same; that defendant has paid to plaintiff as rent upon the lease the sum of $241. Defendant prays that the lease be reformed and decreed to include the lands above described; that the lease be adjudged valid; that plaintiff, and all persons claiming under him subsequent to February 24, 1908, be enjoined from interfering with the premises; and that D. W. Bailey be substituted as defendant in this suit.</p> <p>The reply admits that plaintiff did make his mark to the lease referred to, but that, through the procurement of the defendant, he was so intoxicated that he did not understand the consequences of his act or know what he was doing; admits that he has since represented that, if he signed the lease referred to, it was when he was drunk and irresponsible; denies the payment to him of any sums on said lease, and all other allegations not so admitted, and affirmatively alleges that defendant procured plaintiff to become intoxicated and while in that condition, for the purpose of cheating plaintiff, obtained his signature to the lease; alleges that there is no ranch on the reservation known as the Jerry St. Dennis ranch containing 640 acres or more than 160 acres; and that plaintiff does not own more than 80 acres on the reservation, and that the lands described in the answer are located bn the reduced Umatilla reservation, being allotments to the Walla Walla band of Indians, under the act of Congress of March 3, 1885, and that the following portions of said allotted lands have not been patented to the allottees or their heirs, viz.: E. 1/2 of N. E. 14 of section 5; lots 4 and 5, and the S. W. % of N. W. Uj, of section 4, containing 151 acres; and the E. 14 of N. W. *4 of section 5, and lot 7 of section 4, but that the title still remains in the United States government, and plaintiff prays that the defendant take nothing by this suit.</p> <p>The cause was tried upon these issues before the court, who found in favor of defendant, and rendered a decree accordingly, and plaintiff appeals.</p>

<p>Appeal and Error—Appealable Orders.</p> <p>Under Section 547, B. & C. Comp., authorizing an appeal from a final order affecting a substantial right and in effect determining the action, so as to prevent a judgment therein, an order sustaining a demurrer to an amended complaint was not appealable, since it did not settle the controversy, as, under Section 101, the court could have permitted a further amendment, or allowed plaintiff to file a new primary pleading.</p>

<p>Criminal Law—Appeal—Requisites por Transfer of Cause—Filing Transcript in Time.</p> <p>1. Section 1479, B. & C. Comp., provides that on appeal the clerk must within five days after notice, or within such further time as the court may allow, transmit a certified copy of the notice of appeal, certificate of cause, if any, and judgment roll to the cleric of the Supreme Court. Section 1481 provides that the appellate court upon motion may order the appeal dismissed if the return he not made as provided by Section 1479. Held, that unless a transcript is filed within the time allowed by law, or within a further time, if allowed, the appeal will be dismissed, though, if failure of the clerk to so file the transcript is not due to appellant’s negligence, the appellate court will, order the transcript sent up after expiration of the time allowed.</p> <p>Criminal Law—Appeal—Requisites for Transfer of Cause—Filing of Transcript.</p> <p>2. It not appearing that the clerk was even requested to send up the transcript, or that any effort was made within the five days to have the time for filing extended, but the only excuse for failure to file in time being that counsel was waiting to have the bill of exceptions settled, which was unsigned among the papers in the clerk’s office, the appeal will be dismissed.</p>

From Marion: George H. Burnett, Judge. Statement by Mr. Justice Slater. Plaintiffs, J. L. Smith, J. M. Smith and May Hunter, who are three of the nine heirs at law of one J. Me Smith, deceased, brought an action in. ejectment against defendant to recover three-ninths of a particular quarter section of land in Marion County, which their father in his lifetime had owned.

<p>Vendor and Purchaser—Contract—Nature and Form—Sale or Option.</p> <p>1. Where a written contract bound the owner of land to sell it to plaintiff for $1,500, and to execute a deed on payment on or before April 12, 1907, but that if plaintiff within that time elected not to purchase, the contract should be null and void, it was not a mere option, but a contract of sale.</p> <p>Vendor and Purchaser — Sale — Purchaser's Default — Tender — Demand of Payment.</p> <p>2. Where time was not of the essence of a contract for the sale of land, the vendor could not put the vendee in default, so as to escape specific performance on tender of the balance due with interest, without tendering a deed and demanding payment.</p> <p>Vendor and Purchaser—Default—Enforcement of Forfeiture.</p> <p>3. Intent to forfeit money paid by vendee on contract for the sale of land must clearly appear before the court will permit the vendor to retain both the money and the land because of the purchaser’s default in making payments within the time required.</p> <p>Vendor and Purchaser—Rights of Vendor—Title—Security for Deferred Payments.</p> <p>4. Under an executory contract for the sale of land, the vendor, in the absence of language in the contract indicating some other intent, is the holder of the legal title as security for deferred payments.</p> <p>Vendor and Purchaser—Forfeitures—Default in Payments.</p> <p>5. Where no forfeiture is declared by the terms of a contract for the sale of land, equity will relieve the vendee against a mere failure to pay the purchase price on the day named.</p>

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

<p>From Union: John W. Knowles, Judge.</p> <p>On Motion to Affirm Judgment. .</p>

From Multnomah: George H. Burnett, Judge. Statement by MR. Justice Eakin. This defendant, J. Thorburn Ross, is charged, by information, jointly with Geo. H. Hill, T. T. Burkhart, and John E. Aitchison, with the crime of larceny, committed in Multnomah County, Oregon, and upon change of venue the case was transferred to Marion County for trial.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice Moore. This is an action by N. C. Longfellow against John W. and Arnold R. Huffman, partners as Huffman & Son, to recover damages for an alleged breach of an agreement.

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Slater. The defendant C. P. Elwert, on November 16, 1905, leased his building in Portland to one Hutchinson, for the term of one year, for rooming house purposes, at a stipulated rental, payable monthly in advance,, on the 16th of each month.

From Lake: Lawrence T. Harris, Judge. This is a suit brought by Minnie B. Temple against F. W. Osburn, Trustee; S. W. Brown, The Eugene Loan & Savings Bank, J. J.'Walton and Emma Walton, his wife, S. P. Ness and Mary S. Ness, his wife, E. 0. Potter and Emily B. Potter, his wife, and A. C. Woodcock, for the purpose of quieting title to cértain lands in Lane County, Oregon. From a decree in favor of defendants, plaintiff appeals.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice McBride. This is an action brought by Ernest Peterson, ás administrator of the estate of Victoria Beatrice Peterson, deceased, against the defendant company.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Chief Justice Moore. This is a suit by George W. Collins against A. Creason to enforce the specific performance of a contract to convey real property.

<p>Master and Servant—Compensation of Servant—Allowance.</p> <p>Where one employed to manage a business was guilty of culpable negligence in conducting the business and in making a record of his transactions, he was not entitled to such compensation as would be a fair allowance, had he conducted the business carefully and kept an accurate account.</p>

From Lane: Lawrence T. Harris, Judge. This is a suit by Edna Comegys against T. G. Hendricks as executor of the last will and testament of Arthur Comegys, deceased, and Presley Comegys, to determine an adverse interest in real property, in such a decree was rendered in favor of plaintiff upon the pleadings, and defendants appeal.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chief Justice Moore. This is the suit of an insane person by his guardian to have an alleged contract declared void, to establish and enforce a trust in real property, and to compel the defendants to execute to the ward a deed of the premises.

<p>Elections—Contest—Nature of Proceedings.</p> <p>1. The determination of election contests is a judicial function only to the extent that such determination is authorized by statute.</p> <p>Elections—Contest—Nature of Proceedings.</p> <p>2. The statutory mode of contesting elections is a special proceeding, and the powers of the court in which the proceeding is brought, as well as the mode of procedure, must be determined by the statute alone.</p> <p>Intoxicating Liquors—Local Option—Election—Contest.</p> <p>3. The local option law (Laws 1905, c. 2), does not specifically provide for contesting an election on the question of prohibiting the sale of intoxicants within a county, but Section 9 provides that the provisions of the general election law shall apply so far as applicable to all matters and proceedings not specified in the local option law. Section 2839, B. & C. Comp., permits one desiring to contest the election of any person to any office to give notice thereof in writing to such person, which notice shall be served as a summons, filed with the county clerk, and entered as an appeal case upon the docket of the circuit court. Held, that Section 2839 only applied to contests involving the right to particular persons to an office, and did not authorize a determination of the validity of an election by popular vote under the local option law, so that the circuit court had no jurisdiction to determine such question.</p>

<p>Evidence—Findings.</p> <p>Evidence examined and hold sufficient to justify the findings and decree rendered by the lower court.</p>

From Marion: William Galloway, Judge. Statement by Mr. Justice McBride. This, is a suit brought by James K. Sears, a citizen and taxpayer of Oregon, against Geo.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice McBride. This suit was brought by J. Francis Drake against M. B. Rankin to compel an accounting in relation to a certain alleged partnership business between them.

From Coos: James W. Hamilton, Judge. Statement by Mr. Chief Justice • Moore. This is an action by the Pioneer Hardware Co., a corporation, against Geo. N. Farrin, to recover money.

From Polk: Reuben P. Boise, Judge. Two indictments were found against Tom Gilbert for murder in the first degree—one for killing an Indian and the other for killing an Indian woman, both crimes having been committed on November 28, 1882, in Polk County, Oregon, and upon trial, the defendant was found guilty and sentenced to death, and he appeals.

From Josephine: Hiero K. Hanna, Judge. Statement by Mr. Chief Justice Moore. This is an action by E. M. Albright, Carl Wintjen and Ed. Burke against Martin Browne to recover the possession of personal property, or its alleged value, in case control thereof cannot be secured. The complaint is in the usual form, except that it does not aver any demand was made for the delivery of the specified goods.

From Washington: Thomas A. McBride, Judge. Statement by Mr. Justice Slater.