Volume 57 — Oregon Reports

From Lane: James W. Hamilton, Judge. The defendant, James McAvoy, was convicted of assault with a dangerous weapon, and from the judgment and sentence which followed, he appeals.

<p>Pleading — Complaint—Defects—"Waiver.</p> <p>1. Under Section 72, B. & C. Comp., providing that an objection, except the objection that the complaint does not state a cause of action, is waived unless taken by demurrer or answer, the defect in a complaint failing to state a cause of action is not waived by answering over after the overruling of a demurrer.</p> <p>Pleading — Defects—Cured by Verdict.</p> <p>2. A defect in a complaint, failing to state a cause of action, is not cured by the judgment.</p> <p>Bills and Notes — Action Against Indorser — Complaint — Sufficiency.</p> <p>3. A complaint undertaking to state the facts necessary to charge an indorser must aver presentment to the maker, as required by Section 4473, B. & C. Comp., unless presentment is dispensed with, as authorized by Section 4484, and must allege nonpayment and notice of dishonor as required by Section 4491, unless the necessity therefor has been waived under Section 4511, or is not required under Section 4520, to hold an indorser, and a complaint alleging the execution of a note and the indorsement thereof, and averring that the debt is due and has not been paid, is insufficient, as against a demurrer, to charge the indorser.</p>

From Washington: James U. Campbell, Judge. The defendant, John D. Roselair, was tried and convicted of the crime of having killed his wife, and the jury having found him guilty of murder in the first degree, he appeals from the judgment and sentence following such conviction.

From Tillamook: William Galloway, Judge. Statement by Mr. Chief Justice Moore. This suit was commenced August 13, 1907, by J. H. Fildew against J. T. Milner and O. O. Beardsley.

<p>Executors and Administrators — • Removal op Administrator — Grounds.</p> <p>The court in proceedings to remove an administrator for misappropriation of the assets will not determine the truth of the charge, but where the evidence tends to show that the charge may be true, and where the circumstances show that some person should be in charge for whose interest it will be to cause the charge to be thoroughly investigated, the court will remove the administrator, especially where he had been interested as a tenant in common with decedent and was charged with wrongfully appropriating part of the property held in common.</p>

From Multnomah: John B. Cleland, Judge. This is an action of replevin by Charles F. Johnson against Sam Iankovetz, and from a judgment in favor of plaintiff the defendant appeals. Respondent files motion to dismiss appeal. Statement by Mr. Justice Eakin. This is an action of replevin commenced in the justice court for the recovery of two guns of the value of $45.05.

<p>Appeal and Error — Record—Evidence.</p> <p>The sufficiency of the evidence to justify the decree will not be considered, where the testimony is not in the record.</p>

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

From Josephine: Hiero K. Hanna, Judge. This is an action by the McCabe-Duprey Tanning Co. against J. M. Eubanks, commenced in the Justice’s Court of Grants Pass District, Josephine County, Oregon, in which court judgment was rendered in favor of defendant on the pleadings. The circuit court rendered a judgment sustaining a writ of review and remanding the cause with directions to try the said action on its merits.

From Marion: George H. Burnett, Judge. Statement by Mr. Justice McBride. The defendant, George Meyers, was indicted for murder in the first degree committed by shooting one Thomas Eekhart. The evidence as to the immediate fact of the shooting consisted principally of the dying declaration of the deceased and the testimony of defendant. Defendant was occupying a room in a building owned by his father and occupied by his brother Arthur Meyers, and occasionally by himself.

<p>Habeas Corpus — Return—Time to Make.</p> <p>Under Sections 631, 640, B. & C. Comp., authorizing the court in habeas corpus to inquire into the cause of imprisonment, and providing that the return to the writ may be controverted, a return to a writ, made after the date spécified in the writ directing a return, and after the filing of a motion to discharge petitioner, may be considered, and where the return discloses a good cause for the prisoner’s detention the court may remand him to custody.</p>

From Wallowa: John W. Knowles, Judge. The appellant, Tom Tucker, was tried and convicted of the crime of participating in a riot and being sentenced to imprisonment in the penitentiary, prosecutes this appeal. Appellant now moves to dismiss the appeal without prejudice.

From Polk: George H. Burnett, Judge. Statement by Mr. Justice Slater. This is an action by D. H. Simpson against A. C. Miller to recover upon an alleged contract to pay a specific price per thousand feet for certain standing timber. Defendant interposed a general denial of the averments of the complaint. Upon a trial of the issues before a jury plaintiff secured a verdict, and from the judgment entered thereon defendant has appealed.

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice King. Held: and that there were a total of 48 votes cast at the election, 46 for bonds and 2 against bonds, and the result of said election was declared and entereu of record. “ (9) That all tne matters above set forth were declared of record by said board in its minutes. “(10) That said board are now proceeding to and threaten to, and will,…

From Union: John W. Knowles, Judge. Statement by Mr. Chief Justice Moore. This is an action by J. B. Thorsen and J. H. Buell, as administrators, and Mabel Parks, as administratrix, of the estate of H. L. Buell, deceased, against J. A. Hooper and Joseph Hudson to recover money alleged to have been had and received for the plaintiffs' use.

From Multnomah: John B. Cleland, Judge. Statement by Mr. Justice Eakin. This is a suit to enjoin the sale upon execution of lot 3, in block 27, Hanson’s addition to East Portland, and the contention arises upon the following facts: On February 3,1886, C. J. Smith, the husband of plaintiff, and W. T. Jones, became indebted to the defendant bank in the state of Nebraska upon a promissory note in the sum of $2,000.

From Malheur: George E. Davis, Judge. This is a suit by Frank E. Hodgkin against John Boswell, to remove a cloud from the title to a certain lot in the town of Vale, Malheur County, Oregon. From a decree in favor of defendant and dismissing the complaint, plaintiff appeals.

From Lake: George Noland, Judge. Isaac N. Harrell was tried and convicted of murder in the first degree. This is an application for certificate of probable cause and a stay of execution pending an appeal from a judgment of death.

From Coos: Jambs W. Hamilton, Judge. This is a suit by J. S. Edmunds against N. H. Welling to foreclose a mechanic’s lien. From a decree in favor of plaintiff, defendant appeals. Submitted without argument under the proviso of Rule 16 of the Supreme Court. 50 Or. 580 (91 Pac. VIII).

From Baker: William Smith, Judge, Statement by Mr. Justice Eakin. This is a suit to settle certain water rights.

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by the Portland Railway Light & Power Company against the Railroad Commission of the State of Oregon; from a decree in favor of defendant, plaintiff appeals.</p>

<p>Judgment — Foreign Judgments — Effect—Enforcement.</p> <p>1. Under Section 750, B. & C. Comp., providing that the effect of a judicial record of a sister state is the same in Oregon as in the state where made, except that it can only be enforced by an action, a memorandum of a judgment of a sister state cannot, by being recorded under a lien docket in Oregon, become an incumbrance on real property therein or authorize an execution based on such entry.</p> <p>Judgment — Foreign Judgment — Faith and Credit.</p> <p>2. The full faith and credit clause of the federal constitution (Section 1, Article IV, Constitution) and Rev. St § 905 (U. S. Comp. St. 1901, p. 677) passed in conformity therewith, merely establish a rule of evidence, and do not fix a criterion of jurisdiction.</p> <p>Courts — Decisions of Federal Supreme Court — Conclusiveness.</p> <p>3. The construction of the full faith and credit clause of the federal constitution involves a federal question, and its interpretation by the federal Supreme Court is controlling.</p> <p>Judgment — Foreign Judgment — Conclusiveness.</p> <p>4. Neither the full faith and credit clause of the federal constitution (Section 1, Article IV, Constitution) nor Rev. St. § 905 (U. S. Comp. St. 1901, p. 677), passed in conformity therewith, prevents an inquiry into the jurisdiction of the court of a sister state by which a judgment rendered therein is offered in evidence and a copy of the record, though duly authenticated, may be contradicted as to the facts necessary to give jurisdiction, or where it appears in a collateral proceeding in another state that such facts did not exist, the record is a nullity, though it may contain recitals that the facts did exist.</p> <p>Judgment — Foreign Judgment — Actions—Evidence.</p> <p>5. The decree of proof required in an action on a foreign judgment is governed by the rules or pleading prevailing where the action is brought, except that the procedure in such state cannot impair the efficacy of the judgment of a sister state, or deny an adequate remedy for its enforcement.</p> <p>J udgment — Foreign J udgment — Actions—Pleadings.</p> <p>6. Notwithstanding Section 8Y, B. C. Comp., providing that in pleading a judgment of a court of special power it is not necessary to allege the facts conferring jurisdiction, a party who in alleging a judgment of a subordinate tribunal of a sister state elects to set forth the facts conferring power to hear and determine the case, must state all the facts necessary to give jurisdiction.</p> <p>Divorce — Alimony—Statutory Power.</p> <p>7. The power to award permanent alimony on granting a divorce is statutory.</p> <p>Evidence — Laws op Other States.</p> <p>S. Where the decisions of the Supreme Court of a sister state construing a statute thereof are not offered in evidence, the court will examine such decisions only so far as they interpret the rules of the common law existing in the sister state, independently of the statutes.</p> <p>Courts — Jurisdiction—Record.</p> <p>9. A court of general jurisdiction which takes cognizance of a cause pursuant to statutory authority and not in conformity with the common law, becomes an inferior court and its proceedings are subject to all the incidents applicable to an inferior court, so that its record must affirmatively show that jurisdiction of the person against whom a judgment was rendered, was secured in the manner prescribed in order that the judgment shall not be open to attack, as no presumptions can be invoked to supply any omissions.</p> <p>Evidence — Laws op Other States — Presumptions.</p> <p>10. In the absence of any showing to the contrary the court will assume that the common law rules in force in Oregon are in force in a sister state.</p> <p>Evidence — Judicial Notice — Laws of Other States.</p> <p>11. The court will not take judicial notice of the statutes of a sister state, and a party relying thereon must plead and prove them.</p> <p>Attorney and Client — Relation—Statutes.</p> <p>12. Section 1058, B. & C. Comp., defining the authority of an attorney, recognizes the common-law authority of an attorney to represent his client long enough after an entry of judgment in his client’s favor to enable him to supervise the collection thereof, by authorizing an attorney a: any time within three years after the entry of judgment to acknowledge satisfaction thereof on receiving the sum adjudged to be due his client.</p> <p>Attorney and Client — Relation.</p> <p>13. Where an attorney has appeared in an action for a party who is defeated, the entry of the judgment therein concludes his relation to the cause.</p> <p>Divorce — Foreign Judgment — Validity.</p> <p>14. Under St. Wisconsin 1898, Section 2420, conferring on the circuit courts the powers, according to the usages of law and equity, necessary to complete jurisdiction of causes and parties, and Sections 2348, 2362, 2364, 2367, 2369, 2823, giving the circuit court jurisdiction of actions for divorce with power to award the wife alimony and allowance for the maintenance of the children of the parties, and authorizing the court from time to time to alter the judgment as to alimony or allowance and the payment thereof, and providing that when a party to an action shall have appeared by an attorney the service of papers shall be made on the attorney, a decree of divorce is conclusive as to the severance of the marriage tie, but is not final as to the award of alimony or the allowance for the maintenance of the children as to which the authority of the attorney continues, empowering him, in the absence of any notice of retirement or substitution, to apply to the court for a reduction of the alimony or allowance, and to resist any request by plaintiff for an increase thereof, and a judgment for arrears of alimony rendered on service of notice of the application on defendant’s attorney is valid and will be enforced in Oregon.</p> <p>Attorney and Client — Relation of Parties — Notice of Retirement.</p> <p>15. An attorney of record must notify the attorney of the adverse party of his retirement from a cause, and until he does so the service of any notice in the action on him is effectual, and in the absence of such notice or order of substitution it cannot be said that such attorney is not empowered to represent his client.</p> <p>Attorney and Client — Relation of Parties.</p> <p>16. A contract of a firm of attorneys to represent a client in a litigation is joint, requiring each member of the firm to perform such services as are required, and continues until the conclusion of the cause, unless sooner determined, and the fact that one of the attorneys of the firm permanently removes from the state does not prevent the remaining partner from continuing in the employment, and the adverse party may treat the remaining attorney as the attorney, so that service of notice on him is tantamount to a personal service on the client, under a statute providing that when a party shall have appeared by an attorney, the service of papers shall be made on the attorney.</p> <p>Divorce — Judgment—Vaudits.</p> <p>17. Under St. Wisconsin 1898, Sections 2367, 2369, authorizing the court awarding alimony to enforce payment thereof by execution or otherwise; and providing that after an award of alimony the court may revise the same and make a new determination, the court has plenary power to determine the amount of alimony in arrears and render judgment for that sum, and enforce payment thereof by execution.</p> <p>Divorce — Alimony—Power of Court.</p> <p>18. The authority to grant divorce and award alimony, though statutory, carries with it such powers as are expressly given and such as may necessarily be incidental to its exercise.</p> <p>Execution — Enforcement.</p> <p>19. Under the statutes authorizing courts of equity to issue executions a decree, to be enforceable by execution, must contain the positive constituents of a judgment at common law, and direct the payment of a sum of money by one party to another.</p> <p>Judgment — Foreign Judgment — Actions.</p> <p>20. An action at law lies for the recovery of money based on a decree of a court of equity of a sister state.</p> <p>Oosts — On Appeal — Stenographer's Fees.</p> <p>21. In a legal action, money paid by a party to the official stenographer as legal fees must be taxed in the trial court, and cannot be entered on appeal as disbursements.</p> <p>Costs — Disposition on Appeal — Expense op Bill op Exceptions.</p> <p>22. Where a transcript of the testimony is filed below, appellant, in order to review the judgment, must prepare a bill of exceptions, and expenses incident to the clerical work are not a part of the disbursements on appeal.</p> <p>Appeal and Error — Costs.</p> <p>23. Only such legal charges as have been paid or promised to be paid to the clerk for preparing a transcript on appeal may be recovered as a disbursement, so that expenses saved by plaintiff’s counsel himself preparing the appeal transcript inured to the benefit of the other party upon reversal.</p>

<p>Attachment — Defects in Writ — Seal—Omission—Effect.</p> <p>1. A court clerk’s omission to attach his seal to a writ as required by law is a remediable irregularity only when the statutes authorize such amendment, and, since circuit clerks are required to affix their seals to process issued by them, an attachment is void where such a clerk omitted his seal on the writ; the provision of Section 102, B. & C. Comp., permitting amendment of “proceedings” in furtherance of justice, not being enough to authorize amendment by affixing the seal.</p> <p>Courts — Jurisdiction—Nonresidence.</p> <p>2. A court of general jurisdiction can exercise authority over all property within its territorial limits when brought before it by due process, and it may dispose of it by judgment or decree, though the owner is a nonresident not found within the court’s jurisdiction, and neither appears nor answers.</p> <p>Judgment — Process to Support — Jurisdiction of Person and Property.</p> <p>3. If personal service of summons has been made on defendant in attachment within the state, or if he has appeared or answered, personal judgment may go against him and general execution issue thereon, but, when otherwise, power to render judgment is limited to property brought before the court by valid attachment.</p>

From Multnomah: John B. Cleland, Judge. Statement by Mr. Chief Justice Moore. This appeal originated in two actions instituted by G. Simon against L. Trummer and his sureties, the United States Fidelity and Guaranty Company, a corporation, to recover damages for breaches of injunction bonds.

From Multnomah: Earl C. Bronaugh, Judge. The defendant, Chester C. Holloway, was convicted of assault with a dangerous weapon, and from the judgment following such conviction he appeals. The State now files motion to affirm the judgment.

<p>From Polk: William Galloway, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit to foreclose certain mortgages given to secure two promissory notes executed by A. G. and M. L. Roberts in favor of Ladd & Bush. The first note is for the sum of $1,000, and with interest at 8 per cent, dated March 21, 1905, and due 10 months after date. The second note is for $2,000, with a like rate of interest, and is dated December 4, 1908, due one day after date. Both notes are secured by mortgages upon the lands hereinafter referred to. The evidence tends to show that in the month of November, 1902, defendant Williamson, who is a son-in-law of defendant Roberts, entered into a contract with J. P. Emmett for the purchase of about 131/2 acres of land for the sum of $540, paying $132 shortly after the contract was executed, and agreeing to pay the balance in equal installments. He immediately went upon the tract, and erected a house and made other valuable improvements; that in 1904, he was in default in his payments to Emmett and applied to Roberts for assistance. Roberts agreed to pay the balance due Emmett, and, as the place was small, he purchased 13 acres of land adjoining the first tract, taking the deeds from Emmett to both tracts in his own name, but agreed to convey them to defendant Williamson on repayment of the purchase money advanced by him. Williamson testified that the conveyances were so arranged as security to Roberts, and also to prevent certain creditors of his from embarrassing him</p> <p>by actions. The proceeds of the first $1,000 note were used largely to pay Emmett for the land, and advances were made by Roberts from time to time to pay for picking and caring for the hops raised by Williamson on the place. The proceeds of the hops produced on the place were retained by Roberts, but the evidence as to their amount and value is very meager, and it seems probable that they did not exceed the taxes paid by Roberts and the interest and advances made by him for the picking. In 1905 Williamson executed to plaintiffs a chattel mortgage for $700 to be used in the cultivation of the hops then being raised on the land in question and in said mortgage represented that he was a tenant of Roberts on the land, and that Roberts was the owner. The evidence tends to show that plaintiff believed that relation still existed when the last mortgage was executed and had no notice that Williamson claimed any other interest. The court below found in favor of plaintiff as to the first mortgage of $1,000, but held that the second was without consideration and found for the defendant. From this decree plaintiff appeals.</p>

<p>Trusts — Agreements—Duty of Trustee.</p> <p>1. Where a mortgagee of an unpatented mining claim, who contracted with a judgment creditor of the mortgagor to foreclose the mortgage and acquire the claim, and hold the title in trust to protect the parties under their hens, and to do at his own expense the necessary assessment work to' maintain his title, purchased the claim at a foreclosure sale, and executed an instrument reciting 'that, as trustee for himself and the judgment creditor, he purchased the claim, the mortgagee was vested with the legal title in trust, and he could not abandon the performance of his duty as trustee without rendering himself liable to the judgment creditor.</p> <p>Trusts — Sales by Trustee — Validity.</p> <p>2. A trustee may convey his interest which he may have individually in the subject-matter of the trust.</p> <p>Trusts — Duty of Trustee — Abandonment of Trust.</p> <p>3. A trustee may not abandon the trust and substitute another in his place as trustee without the consent of “the beneficiary, but he must proceed in the execution of the trust, and cannot terminate it by his act or default.</p> <p>Trusts — Trustees—Appointment by Court.</p> <p>4. On the refusal of a trustee to act, equity will either compel him to act, or will appoint another trustee in his place.</p> <p>Trusts — Agreement Creating Trust — Rights of Parties.</p> <p>5. Where a mortgagee of an unpatented mining claim, who contracted with a judgment creditor of the mortgagor to foreclose the mortgage and acquire the title of the claim in trust to preserve the rights of the parties under their liens, and to do the assessment work necessary to preserve his title, and who agreed to sell the claim jointly with the adjacent claim of the judgment creditor at any time within three years, and, in case no sale was made within that time, the lien of the judgment creditor should not be affected by the mortgage sale, but he should receive out of the claim the amount due him subordinate to the mortgage, purchased the claim and then failed to do the assessment work, the judgment creditor could himself do the assessment work if not prevented by the mortgagee, or one claiming under him, and tack the expense on to his lien, and, if prevented, he could apply to equity for a substituted trustee for that purpose, but his right to enforce his lien created by the contract was dependent on the event that no sale of the claims was made within three years.</p> <p>Trusts — Agreement Creating Trust — Rights of Parties.</p> <p>6. Where a mortgagee of an unpatented mining claim who contracted with judgment creditors of the mortgagor to purchase the claim at a mortgage foreclosure and hold it in trust for the parties under their liens, and to do the assessment work necessary to preserve the title, purchased the claim at a mortgage foreclosure, and then employed one of the judgment creditors to supervise the assessment work and repairs, at a monthly salary to be paid by the mortgagee, the claim of the judgment creditor for salary and for damages sustained while in the performance of his duties was personal against the mortgagee, and recoverable only in an action at law.</p>

<p>Trial — Findings - of Fact — Sufficiency.</p> <p>1. Findings of fact by the court must include all the material issues, though, where it adopts the theory of one of the parties antagonistic to the theory of the adverse party, a statement of all the facts involved is not always essential.</p> <p>Trial — Findings of Fact — Sufficiency.</p> <p>2. Where, in an action for services in effecting a sale, the answer admitted the performance of the services and alleged an accounting and settlement and payment of the sum agreed to be due plaintiff, and the reply denied the allegation, a finding that defendant was indebted to plaintiff in the sum sued on was only a conclusion of law and did not dispose of the issues.</p>

From Douglas: James W. Hamilton, Judge. This is a suit by A. J. Levins against W. H. Stark and H. H. Stark, partners, doing business under the firm name and style of Stark Lumber Company, and T. E. Bledsoe, trustee in bankruptcy. From a decree foreclosing certain alleged loggers’ liens in favor of plaintiff, defendants appeal.

From Union: John W. Knowles, Judge. This is a suit by John Shaw against T. N. Proffitt and Joe Carter enjoining defendants from in any manner interfering with a certain canal or ditch built by plaintiff across the lands of defendants, under an irrevocable license. From a decree in favor of plaintiff, defendants have appealed.

<p>Justices of the Peace — Salary—Statutes—Construction.</p> <p>Section ,2663, B. & C. Comp., enacted in 1891, provides that the county-court shall at certain times establish justice of the peace districts, to be composed of one or more precincts. Section 2669 provides that each district shall have one resident justice. Section 3001, enacted in 1895, provides that justices of the peace in all cities in the State having 50,000 or more inhabitants shall receive an annual salary of $2,000. Held, that it is the location of the district, and not the place of residence of the officer, that determines his right to a salary, and that where, on the date of a iustice’s election, the boundary of a city was extended to embrace certain Drecincts, in one of which the justice resided, and forming part only of a district, such justice was not entitled to the $2,000 salary, though he resided in the city.</p>

<p>Limitation of Actions — Running of Limitations — Barring of Remedy.</p> <p>1. The running of limitations on a note does not extinguish the right, but merely the remedy.</p> <p>Limitation of Actions — Bar of Debt as Affecting Security.</p> <p>2. A mortgage to secure the payment of the debt evidenced by a note may be enforced though the remedy on the note is barred by limitations, and though the mortgage is, for certain purposes, a mere incident of the note, and passes with it.</p> <p>Limitation of Actions — Partial Payment — Effect.</p> <p>3. A partial payment on a contract for the payment of money tolls the statute of limitations, because such payment operates to continue and keep in force the original promise.</p> <p>Statutes — Construction—Meaning of Words.</p> <p>4. The rule that, where general words in a statute follow an enumeration of particular things, such words include only such things as are of the same kind as those specifically enumerated, is but a rule of construction to aid in ascertaining the meaning of the legislature, and it does not warrant the court in confining the meaning of the statute within narrower limits than that intended by the legislature.</p> <p>Limitation of Actions — Mortgages — Part Payment — “Evidence of Indebtedness.</p> <p>5. A mortgage is an evidence of indebtedness within Section 25, B. & C. Comp., providing that payment of principal or interest on any bill of exchange, promissory note, bond, or “other evidence of indebtedness,” shall make limitations run from the time of such payment, and a part payment on a note, or on the mortgage securing it, tolls the statute as to the mortgage.</p> <p>Vendor and Purchaser — Bona Fide Purchaser — Constructive Notice.</p> <p>6. Under Section 5359, B. & C. Comp., providing that conveyances of real property not recorded within five days after their execution are void as to subsequent good-faith purchasers, the recording of a mortgage is constructive notice to subsequent purchasers; but a mortgagee who has recorded his mortgage may assume that the mortgagor continues to own the property, and he may deal with him as such owner, and, though he has notice of a transfer by the mortgagor, he may assume that the purchaser has informed himself of the condition of the title, and has taken it subject to the mortgage.</p> <p>Limitation of Actions — Mortgages—Part Payment.</p> <p>7. Under Sections 5, 24, 25, B. & C. Comp., fixing the time for the commencement of actions on notes and on sealed instruments, and providing that the effect of any payment of principal or interest shall not be altered by the fact that no promise is sufficient evidence of a new contract unless the same is in writing and signed by the party to be charged, and that any payment of principal or interest on any bill of exchange, note, bond, or other evidence of indebtedness shall make limitations commence from the time of such payment, a part payment by a mortgagor, made after he has conveyed the property, but before the running of limitations, arrests the operation of limitations, but a payment after the debt has been barred does not revive the debt to the prejudice of his grantee.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice McBride. A petition was filed for a county road across the premises of plaintiff, and the viewers appointed by the county court reported in favor of granting the road and assessed plaintiff’s damages at $225.

<p>Master and Servant — Injury to Servant — Contributory Negligence.</p> <p>An employee loading lumber on a vessel was injured by lumber falling because of a defect in the winch. To do his work he was compelled to stand near the suspended timbers and while the winch was lowering the same down. When the winchman was about to lower the timber he called to the men to stand back, and they all did so. At the time of the accident the employee was about eight feet from a perpendicular line from the suspended timber. Held, that plaintiff was, as a matter of law, free from contributory negligence, as he had a right to anticipate that the winch would perform its functions.</p>

<p>Waters and Water Courses — Public Lands — Rights op Settlers.</p> <p>1. A settler upon the public domain, by diverting water from a natural stream for domestic use, for irrigation or manufacturing purposes, may acquire a right to use the amount so diverted so far as it is put to a beneficial use for actual needs.</p> <p>Waters and Water Courses — Water Rights — Priorities.</p> <p>2. Water rights acquired from the same stream have priority in the order of the time' of diversion.</p> <p>Waters and Water Courses — Public Lands — Rights op Settlers.</p> <p>3. A settler on the public domain acquires no right in waters' of a stream diverted in excess of his actual use and needs.</p> <p>Waters and Water Courses — Water Rights — Nature.</p> <p>i. The right under an appropriation of waters from a stream is appurtenant to the land for which the water is diverted.</p> <p>Waters and Water Courses — Irrigation Water Rights — Scope.</p> <p>5. The quantity of water acquired by appropriation for irrigation purposes must be determined by the amount of land irrigated and the quantity of water needed therefor.</p> <p>Waters and Water Courses — Irrigation Water Rights — Increasing Acreage — Date op Appropriation.</p> <p>6. Where the acreage irrigated under an appropriation of water has not increased materially for several years, an appropriation for additional acreage dates from the increased diversion.</p> <p>Waters and Water Courses — Irrigation Water Rights — Priorities— Pleading — Sufficiency.</p> <p>7. A complaint to determine the priority of irrigation water rights is insufficient where it does not definitely describe plaintiff’s lands, and does not show that any particular land needed irrigation, does not specify the amount of water diverted nor the amount needed to the acre, or for any specific land, and does not show how much water plaintiffs’ grantors acquired a right to use; an allegation that plaintiffs were entitled to all the water in a creek during the dry season being too indefinite.</p>

From Multnomah: William N. Gatens, Judge. This is an action by Fred A. Williams and S. S, Dill, doing business under the firm name and style of Dill Contract Company, against the Mount Hood Railway & Power Company, a corporation, and the Mason Construction Company, a corporation, for work performed by plaintiffs in clearing the right of way for the railroad of the defendant, Mount Hood Railway & Power Company.

From Crook: William L. Bradshaw, Judge. The defendants, C. H. Erickson and Bettie Erickson, were jointly indicted, tried and convicted of assault with a dangerous weapon, and from the judgment thereon they appeal.

From Baker: William Smith, Judge. Statement by Mr. Chief Justice Moore. This is an action of claim and delivery, commenced in the circuit court of Baker County, by W. C. Fox against Louis Tift.

<p>Deeds — Validity—Undue Influence.</p> <p>1. Where a party who was old, sick from an incurable disease, and broken in mind and body from the excessive use of stimulants, so that he was incapable of realizing the nature of the transaction, was induced to execute a deed which purported to convey the great bulk of his property to defendant H., to the exclusion of her brother and sister, whose claims were as great as her own, and the party, after his partial recovery, treated the property as his own and disposed of it by will, the deed will be set aside as obtained by fraud and undue influence.</p> <p>Deeds — Evidence—Undue Influence — Fraud.</p> <p>2. Where the evidence discloses that the grantor at the time of executing the deed to the defendant, was old, sick from an incurable disease, broken in mind and body from the use of stimulants, and the difficulty that he labored under to understand the English language, the secrecy with which the transaction was conducted, together with the undue haste in recording the deed after the death and prior of the burial of the grantor, held, sufficient to establish that the daughter took a fraudulent advantage of her father’s age and weakness of mind to secure the deed, and the same will be set aside.</p> <p>Deeds — Evidence—Burden of Proof.</p> <p>3. Considering the relation of the parties, the frequently expressed intention of deceased to provide fairly for his other relatives, the fact that he had already made a will to effectuate that intention, the unreasonableness and injustice of the conveyance, the mental and physical weakness of the deceased and the secrecy observed concerning the transaction, the burden of proof was upon the grantee to establish by clear testimony that the deed in question was the voluntary act of the grantor.</p>

From Washington: James A. Eakin, Judge. Statement by Mr. Justice Slater. This is a suit by A. J. Langley against Abraham L. Kesler, Mary J. Kesler, John Kesler, Elizabeth Kesler, Charles Kesler and Anna Kesler, to quiet title to a parcel of land approximately 50 by 100 feet, being a part of lot 3, block 27, in the city of Forest Grove of this State. All the facts have been agreed upon, either by admissions in the pleadings or by stipulation.

From Multnomah: Robert G. Morrow, Judge. This is an action by J. F. Reising against the city of Portland, a municipal corporation in the county of Multnomah and State of Oregon, to recover the salary alleged to be due plaintiff, as a detective on the police force of the city. From a judgment rendered in favor of plaintiff upon the pleadings, defendant appeals.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Justice Eakin. This is an appeal from a judgment of the circuit court dismissing a writ of review which was issued for the purpose of reviewing the action of the district boundary board of Douglas County in the following matter: On October 20, 1908, legal voters in school districts Nos. 19 and 106 of that county, which are adjoining districts, petitioned the board to change the boundary between those districts.

From Umatilla: Henry J. Bean, Judge. The defendant, Thomas Murrell, was convicted of selling intoxicating liquors in violation of the local option law, and he appeals.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Eakin.

From Coos: James W. Hamilton, Judge. Statement by Mb. Justice Slater. This is a suit by Alexander Urquhart against George Belloni to quiet his title to 111 acres of land, of which but 17.90 acres are in actual controversy. This small piece of land, triangular in shape, forms the northwest half of lot 3, section 18, were that lot bisected by a diagonal line running from its southwest corner to a point near the northeast corner; such lot being nearly rectangular.

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Slater. This is an action by L. Y. Keady against the United Kailways Company to recover money upon a contract. The complaint contains 25 separate causes of action, all of which, except the last, are upon claims assigned to plaintiff. Each of the 24 assigned causes of action first set forth are identical as to the character of the contract upon which the right to recover is based.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Slater. This is an action by N. C. Longfellow against John W. Huffman and Arnold R. Huffman, partners under the firm name and style of Huffman & Son to recover damages for an alleged breach of a contract, made by defendants to sell and deliver to plaintiff some lambs, the product for the years 1905 and 1906, of a certain flock of sheep owned by defendants.

<p>Railroads — Operation—Injuries to Persons on Tracks — Licenses— Duty to Warn.</p> <p>1. A railroad company owes licensees wlio cross its tracks no duty to warn them of passing trains; the track itself being a sufficient warning.</p> <p>Appeal and Error — -Prejudicial Error- — Instructions—Failure to Gtve.</p> <p>2. Where a jury, in an action against a railroad company for an injury received by a licensee on the track, requests an instruction as to whether or not it was negligence for the railroad to permit persons to cross its track without signals of warning, the failure of the court to instruct them that it is not negligence is reversible error.</p>

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

From Umatilla: Henry J. Bean, Judge. Statement by Mr. Justice Eakin. This is a suit by Samuel Loney, John B. Knight, Elmer B. Knight and Mary Knight, against Joseph C. Scott, and involves the right to the possession and ultimate ownership of three placer mining claims situated in the northwest portion of Umatilla County.

Statement by Mr. Justice McBride. This is a petition for a writ of habeas corpus. The petition was made at the instance of Archie M. Jerman, whose connection or relationship to the prisoners and the subject-matter does not appear.

<p>Mechanics’ Liens — Materialman's Lien — Right to Lien.</p> <p>Defendant heating company contracted by four separate contracts with defendant railroad company to furnish heating apparatus in a roundhouse, storehouse, office, oilhouse, and powerhouse, constituting four separate buildings, to be constructed by the railroad company; the contracts providing that the heating company should “furnish all of the labor and material required for the installation” of the various apparatus. Plaintiff furnished the heating company with material used in installing the improvements, including the power plant, which was installed to furnish power for machines in the roundhouse repair shop, hot water for the boiler washer and steam for the pipes in the roundhouse, and to transmit steam and water to the boiler washer, but the steam pipes connecting the boiler washer and those in the roundhouse and the boiler and hot-water tank in the powerhouse, as well as the connecting shaft, were put in by the railroad company and were not included in the heating company’s contract, nor furnished by plaintiff. Plaintiff claimed a lien on all of the buildings erected for material furnished the heating company and used in the construction of the roundhouse, office, storehouse, oil-house and power plant, but did not identify the material as going into any particular building. Section 5640, B. & C. Comp., gives every person furnishing materials for use in the construction of any building, a lien thereon for materials furnished at the instance of the owner of the building, or his agent, and provides that every contractor, or person having charge of the construction of any building, shall be deemed the agent of the owner. JSeldj that since the lien given by the statute was upon each building for the material entering into its construction, unless the owner has treated several structures as one, plaintiff was not entitled to a lien on all of the buildings for the materials furnished, not having contracted with the railroad company and not having connected itself with either of the original contracts between that company and the heating company.</p>

From Malheur: George E. Davis, Judge. Statement by Mr. Justice Slater. This is a suit by Minnie 0. Hansen against William Jones, enjoining a sale under execution of plaintiff’s real property, alleged to be her homestead.

<p>From Malheur: George E. Davis, Judge.</p> <p>This is a suit by Minnie O. Hansen against Jones & Co. From a decree in favor of plaintiff, defendants appeal.</p>

From Columbia: Thomas A. McBride, Judge. This is an action by John Dibblee against the Astoria & Columbia River Railroad Company, to recover damages for stock killed upon the right of way of defendant by a moving train. From a judgment in favor of plaintiff, defendant appeals.

From Baker: William Smith, Judge. Statement by Mr. Justice Eakin. This is a proceeding to review a judgment of the justice’s court. From the record it appears that an action was commenced in the justice’s court for Huntington precinct, by defendant Thomason, against the petitioner, Whittier, to recover $94.50 upon a debt.

From Douglas: James W. Hamilton, Judge. Statement by Mr. Chief Justice Moore.

From Marion: GEORGE H. BURNETT, Judge. Statement by Mr. Chief Justice Moore. This is an action by Mary E. Watson, as administratrix with the will annexed of the estate of Mary A. McLench, deceased, against F. G. McLench to recover $1,658.30, the amount of three promissory notes, which sum it is alleged, the plaintiff’s testator, as surety for the defendant, was compelled to pay for him.

From Multnomah: George H. Burnett, Judge. Statement by Mr. Justice McBride. Held: at which there were cast for the amendment 10,087 votes, and against it 6,061, and on June 21st the mayor proclaimed that the amendment had been adopted.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice Eakin. On April 1, 1908, defendant, Lem Woon, jointly with Yee Gueng, was charged by information with the crime of murder by killing Lee Tai Hoy on March 7, 1908, and upon a separate trial was found guilty of murder in the first degree, and appeals from a judgment thereon. The homicide was committed in a building at the corner of Fourth and Pine streets, in Portland, Oregon.

From Multnomah: Earl C. Bronaugh, Judge. Statement by Mr. Justice King. In April, 1908, defendant, Yee Gueng, with Lem Woon, was jointly charged with the murder of Lee Tai Hoy. The homicide occurred as the decedent was ascending a stairway on the outside of the building where he lived, at the corner of Fourth and Pine streets, in Portland.

<p>Counties — Employment of Detective — Ratification.</p> <p>1. The employment of a detective by a county, though irregular, was ratified by the action of the county court in allowing the bill for his services and directing payment thereof by the county.</p> <p>Counties — Debt Limit — Constitutional Inhibition — Application.</p> <p>2. A constitutional debt limit imposed on a county is applicable only to indebtedness voluntarily incurred, and not to such as cannot be avoided without danger to the peace and good order of the community, and hence the fact that the limit had been reached was no valid objection to the county’s liability for the services of a detective employed to assist in enforcing the liquor law.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is an action by C. W. Slade and W. T. Davis against the Utah Construction Company, a corporation, to recover money alleged to be due upon contract. The facts are as follows: In 1907 the Northwestern Railroad Company was engaged in constructing a railroad near Huntington, Oregon.

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Burnett. This is a suit by Ella Talbot against Vincent Cook. The complaint was framed for the purpose of determining an adverse claim, interest, or estate of the defendant in the tract of land in question, and to quiet the title of plaintiif therein, pursuant to Section 516, B. & C. Comp.

From Jackson: Hiero K. Hanna, Judge. Statement by Mr. Justice McBride. This is a suit by Frances M. Snyder, as executrix of the estate of Victor E. Snyder, deceased, and as administratrix of the partnership estate of Snyder & Co., against John Harrington, surviving partner of the partnership estate of Snyder & Co., and J. Ehwegen.

From Marion: William Galloway, Judge. This is a suit by Anna Ulmén against the Town of Mt. Angel, a municipal corporation, to enjoin the defendant from draining certain streets into a gully which extends along plaintiff’s residence property. A decree was rendered by the trial court in favor of plaintiff and defendant appeals.

<p>Counties — County Warrants — Limitations.</p> <p>1. The statute directing the publication of notice that unpaid county warrants which have been issued more than seven years must be presented for payment within 60 days, or they will be canceled, creates a special limitation, which does not begin to run until the publication has been made.</p> <p>Counties — Warrants—Nature of Instrument.</p> <p>2. A warrant drawn in favor of a claimant whose claim against a county has been audited by the county court is a non-negotiable instrument payable on demand so far as it is subject to defenses in the hands of an innocent person.</p> <p>Counties — Warrants—Actions.</p> <p>3. A county warrant is payable on demand, and, when a request for payment is made to the proper party and payment has not been made, an action lies on it, in the absence of a statute to the contrary.</p> <p>Limitation of Actions — County Warrants — Actions—Limitations.</p> <p>4. Sections 2898-2900, L O. L., providing for the publication of notice for presentation of unpaid county warrants which have been issued more than seven years, or they will be canceled if not presented within 60 days, and Section 2959, requiring the county treasurer to pay county warrants on presentation, and providing that, where there are no funds in the treasury, he shall indorse on the warrant “Not paid for want of funds,” the date of presentation, and his signature, whereupon the warrant shall draw legal interest until notice is given by publication that there are funds to redeem it. take a county warrant containing the indorsement of the treasurer out of the class of liabilities designated in Section 6, declaring that an action on a contract must be commenced within 6 years after the accrual of the action, and make the limitation of 6 years begin with the publication of the notice, and a cause of action on such a warrant is not barred until the expiration of the 60 days after publication of the notice.</p> <p>Appeal and Error — Disposition op Case on Appeal.</p> <p>5. 'Where the facts as found by the trial court are not controverted, the Supreme Court, on appeal from an erroneous judgment, will remand the case, with directions to correct the conclusions of law, and render proper judgment.</p>

<p>Appeal and Error — Consent Decree.</p> <p>In a suit for an accounting and to recover money collected as road taxes, the agreement between the parties, not that the court should give a decree for either party, but that the court might determine the issues during vacation did not preclude an appeal from the findings, under Section 548, B. & C. Comp., forbidding an appeal from a judgment or decree rendered by consent or on default.</p>

From Union: JOHN W. KNOWLES, Judge. Statement by Mr. Justice McBride. The defendant, Orley Chandler, was indicted by the grand jury of Union County for the crime of perjury. On the trial, Frank Parker, an inmate of the State penitentiary, was produced by the State as a witness, and gave evidence material to the prosecution.

From Josephine: Hiero K. Hanna, Judge. The defendant, Will Mack, was indicted for the crime of murder in the first degree and upon trial was convicted of murder in the second degree and from the judgment and sentence following such, conviction, he appeals.

From Multnomah: Robert G. Morrow, Judge. This is a suit by Dan Kellaher and 181 others to enjoin the city of Portland from enforcing an ordinance taxing vehicles used upon the streets of said city. From a decree in favor of the city, plaintiffs appeal. Plaintiffs now make application for an injunction restraining the defendant from collecting certain license under a city ordinance, the validity of which is the subject of this suit. Statement by Mr. Chief Justice Eakin.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice Eakin. The town of Joseph, afterward reincorporated as the “City of Joseph,” was incorporated by act of legislature in the year 1887 (Sp.

From Multnomah: Thomas O’Day, Judge. Statement by Mr. Justice Eakin. This is an action by Thomas Darling against S. A. Miles to recover damages suffered by reason of the fraudulent representation made by defendant in the sale of certain lots.

<p>Vendor and Purchaser — Construction of Contract — Options—“Unilateral Contract.”</p> <p>1. A contract for purchase of land acknowledged receipt of $300, and provided that the vendor should furnish an abstract of title and warranty deed conveying a marketable title satisfactory to the purchaser’s attorney, the purchaser to have five days in which to examine the title; and, if not satisfactory, the vendor to refund the payment. Held, that the contract was unilateral, the purchaser not binding himself to perform unless the title should prove satisfactory and not contracting to forfeit anything on failure to perform, and was a mere option to purchase which could be converted into a valid contract of sale, binding upon both parties by an unqualified acceptance by the optionee within the time prescribed therein.</p> <p>Vendor and Purchaser — Contract—Acceptance.</p> <p>2. Evidence held not to show a bona fide acceptance of the option by the optionee.</p> <p>Vendor and Purchaser — Contracts—Failure of Title — Remedy of Purchaser.</p> <p>3. Where title to land was not satisfactory to the purchaser, his only remedy was a return of the purchase money, and he could not compel the vendor to clear up the title.</p> <p>Specific Performance — Persons Entitled to Enforce Performance.</p> <p>4. Where a person who had contracted to sell land and give a title satisfactory to the purchaser’s attorney had lost an unrecorded deed from her grantor to her, and was only able to give a warranty deed which she offered to do but which was refused by the purchaser because of the absence of the unrecorded deed, the purchaser could not subsequently compel her to do the very thing which she had previously offered to do and which he had refused to accept, though she had in the meantime acquired another deed in place of the lost one.</p> <p>Frauds, Statute of — Sufficiency of Writing — Option to Purchase.</p> <p>5. An option to purchase, being in writing, was sufficient as against the grantor to take the agreement constituted by its acceptance out of the statute, though the acceptance was not written.</p> <p>Vendor and Purchaser — Options—Acceptance.</p> <p>6. An option to purchase is not binding until the option has been unqualifiedly accepted.</p> <p>Vendor and Purchaser — Options—Acceptance.</p> <p>7. There was no unqualified acceptance of an option to purchase by the grantee stating that an abstract submitted was satisfactory, but that it vested title in a third person, and that a deed from the grantor with a deed from such person to the grantor would be satisfactory; nor by the grantee telling the representative of one of the parties that he was ready and willing to complete the transaction, suggesting a meeting for that purpose, and that “it was O. K. with” the deed from the third person.</p> <p>Vendor and Purchaser — Option—Nudum Pactum.</p> <p>8.. An option to purchase without consideration is nudum pactum until accepted, and, in effect a mere offer.</p> <p>Vendor and Purchaser — Option—Consideration.</p> <p>9. An option to purchase is not sustained as to consideration by an advance payment made by the grantee, to be returned on his determination not to accept.</p> <p>Judgment — Issues.</p> <p>10. There can be no judgment against a party for money which he has tendered in court and concerning which no issue has been joined.</p>