Volume 63 — Oregon Reports

From Clatsop: James U. Campbell, Judge. This is a suit by John Hahn against the Astoria National Bank and J. E. Higgins. From a decree for defendants, plaintiff appeals. Respondents move to dismiss appeal. Motion denied, with leave to renew at the hearing on merits.

<p>Courts — Supreme Court — Jurisdiction—Injunction on Appeal.</p> <p>An injunction will not be issued by the Supreme Court to enjoin a proceeding at law in which a cross-bill was filed, until final hearing upon appeal after dismissal of the cross-bill in view of Section 390, L. O. L., providing that the filing of a cross-bill shall stay the proceedings at law and the case shall thereafter proceed as a suit in equity, in which the proceedings may be perpetually enjoined by final decree or allowed to proceed; an injunction not being necessary to protect the appellate jurisdiction, and the continuance of the trial of the legal action being at plaintiff’s peril.</p>

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is a suit by the Van Dusen Investment Company, a corporation, Reba Hobson, Edwin Hobson, and Bertha Halderman, against the Western Fishing Company, a corporation, D. H. Welch and Nancy M. Welch, to determine an adverse claim to a sand bar upon which seines for catching salmon are hauled. The State of Oregon by its land board, consisting of the Governor, Secretary of State, and State Treasurer, on February 17, 1879, executed to John Hobson and A. Van Dusen a deed to real property in Clatsop County near Astoria; the premises being described as follows:</p> <p>“A small island in the Columbia River, situate in sections 8 and 9, township 8 north of range 9 west, W. M., opposite and due north of the donation land claim of John M. Shively, containing 21.37 acres of tideland.”</p> <p>The State Land Board on July 24, 1889, in order more specifically to identify the island, executed to Hobson and to the heirs of Van Dusen a confirmatory deed, wherein the premises were described by metes and bounds coincident with the low-water mark. The State Land Board on August 12, 1889, executed to W. E. Warren a deed purporting to convey real property, containing- 9.62 acres, situate about 500 feet west of and down the stream from the nearest point specified in the confirmatory deed. The State Land Board on August 30, 1902, executed to Lena F. Welch a deed to 2.95 acres about 3,100 feet northwesterly down the river from the nearest point of the island described in the deed executed July 24, 1889. The plaintiffs have secured all the estate of Hobson and of Van Dusen in the island first hereinbefore mentioned; the defendant the Western Fishing Company has obtained a deed from Lena F. Welch of her interest in 2.95 acres of land described in the deed executed to her August 30, 1902; D. H. Welch procured from W. E. Warren a deed to the 9.62 acres mentioned in the conveyance of August 12, 1889; and Nancy Welch holds a tax deed for an undivided half of the real property last described.</p> <p>The island conveyed to Hobson and Van Dusen is a sand bar which at all times has been wholly covered and uncovered by the ordinary flux and reflux of the tides. The lands described in the deeds executed to Warren and to Lena F. Welch have never been exposed, except possibly ' parts thereof at unusual falls of the sea at the mouth of the Columbia River. These parcels of real property, for the sake of brevity, will be designated, in the order in which they were respecitvely conveyed, as tracts numbered 1, 2, and 3. The current, which at the places mentioned usually flows northwesterly, depending upon the state of the tide, has indiscernibly washed away the head of tract No. 1, and at the foot thereof earth, sand, and gravel have been imperceptibly lodged. The deposit, however, has always exceeded the erosion, and though the island, since February 17, 1879, has existed as an entity, it has gradually moved downstream, constantly increasing in area in an ordinarily unperceived manner, and no exposed part of it now remains within the boundaries of the confirmatory deed. In the place formerly occupied by that island the water at low tide is now from 9 to 28 feet deep. Tract No. 2 has been wholly washed away, and the depth of low water, at the place which that shoal originally held, is from 27 to 30 feet.</p> <p>The defendant D. H. Welch having on June 10, 1910, leased, for the purposes of operating seines for taking salmon, the premises specified as tract No. 2, this suit was instituted. The complaint describes by metes and bounds the real property involved herein, which shows that the original area of 21.37 acres had been augmented by accretions to 60.46 acres; the upper line of the island at present being about 1,700 feet west of the lower line of tract No. 1, as conveyed July 24, 1889, and the lower line of such tract now extending to a point about 100 feet easterly and above the upper line of tract No. 3.</p> <p>The cause being at issue was tried resulting in a decree as prayed for in the complaint, and the defendants appeal.</p>

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Justice Burnett. This is an action by O. H. Stubrud against E. J. Frasier. The parties admit that the following writing was executed by them as therein appears: “Eugene, Oregon, Oct. 8th, 1908. “Received of O. H. Stubrud fifty dollars part payment of $1,450.00. the purchase price of the Richard Green property in ‘Sunset Row’ and the Mrs. Chas. Baker property on the northwest corner of 17th and Patterson streets.

From Baker: William Smith, Judge. Statement by Me. Justice Burnett. This is a suit by Florence L. Sherred against the City of Baker, a municipal corporation, Chas. L. Palmer, mayor commissioner of the City of Baker, a municipal corporation; Anderson Finley, commissioner of department No. 2 of the City of Baker, a municipal corporation, and George W. Henry, commissioner of department No. 3 of the City of Baker, a municipal corporation.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Moore. This is an action by Arthur P. Williams, Edwin H. Sayre, William L. Juhring, and Francis J. Dessoir, partners under the firm name and style of R. C. Williams & Company, against A. C. Burdick & Co., Inc., to recover damages for the breach of an alleged agreement.

From Lane: Lawrence T. Harris, Judge. Statement by Mr. Chief Justice Eakin. This is a suit by George F. Sanborn and Charles H. Chick against A. C. Jennings and S. L. Jennings, his wife, to quiet title to a tract of land in Lane County, Oregon. Defendants claim title through a tax deed. The answer alleges the assessment of the property to the owner, Ida L. Donaldson, for the year 1899, and the levy of the tax for that year.

From Multnomah: Calvin U. Gantenbien, Judge. Statement by Mr. Justice Moore. This is an action to recover money.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Moore. This is a suit by J. S. McNair against C. G. Benson, B. M. Benson, and E. P. Dosch to set aside a transfer of an interest in real property, to cancel negotiable promissory notes, to enjoin a disposal of such estate and commercial paper, and to recover money.

<p>From Klamath: Henry L. Benson, Judge.</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Burnett. This is a suit by M. J. Walsh Company, a corporation, against M. Nelson and Henry B. Chase, to foreclose a mechanic’s lien for labor performed and materials furnished in the construction of a building. The defendant Nelson is the lessee and Henry B. Chase the owner of the premises in question. The summons was not served upon the defendant Chase, and hence he is not to be further considered.

From Wasco: William L. Bradshaw, Judge. Statement by Mr. Justice Moore. This is an action to recover money.

<p>Appeal and Error — Review—Record—Setting Forth Errors or Irregularities.</p> <p>1. Under Section 171, L. O. L., providing that no particular form of exception is required, hut that the objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more, a bill of exceptions setting out the entire charge of the court and the instructions refused, and stating that there was evidence on the questions involved in such instructions, is sufficient to present for review the errors in giving and refusing instructions, although appellant in attaching the evidence to the bill of exceptions, as permitted by Section 3, Article VII, of the Constitution as amended in November, 1910 (Laws 1911, p. 7), neglected to attach exhibits received in evidence.</p> <p>Exceptions, Bill of — Setting Forth Errors or Irregularities.</p> <p>2. Section 3, Article VII, of the Constitution as amended in November, 1910 (Laws 1911, p. 7), providing that either party to the appeal may attach to the bill of exceptions the whole testimony, instructions, and any other matter material to the decision of the appeal, is permissive only, and not mandatory; and, as before, if the parties desire to have reviewed errors of law, they must present them by a properly arranged bill of exceptions, setting out so much of the testimony only as is necessary to disclose the point of the objection, except in some exceptional cases, as where a review of a motion for a nonsuit or directed verdict is desired.</p> <p>Damages — Eviction—Duty of Tenant to Minimize Damage.</p> <p>3. In an action by a tenant against his landlord for entering on the premises and destroying the building used by the tenant, resulting in the loss of his stock of goods and prospective profits, where there was evidence that the landlord offered to furnish another building for the use of the tenant, it was error to charge that the jury should disregard such evidence and not consider whether the tenant should have endeavored to minimize his damges, since it was his duty, not only to preserve his stock of goods by storing them somewhere else, but to reduce his damages from the loss of the use of the premises.</p> <p>Tidal — Instructions—Ignoring Evidence.</p> <p>4. In an action by a tenant against his landlord for entering on the leased premises and destroying a building, where there was evidence tending to refute the charge of malice and wantonness, an instruction that if there was any evidence justifying punitive damages the jury should give such damages, was error, amounting in effect to an instruction to disregard defendant’s evidence and consider only that of plaintiff.</p> <p>Appeal and Error — Briefs—Specification of Errors.</p> <p>5. Assigned errors, not discussed in appellant’s brief, will not be considered.</p> <p>ON PETITION POR REHEARING.</p> <p>Trial — Eviction of Tenant — Instructions—Damages—Excluding Issues or Evidence.</p> <p>6. In an action for evicting a tenant it was error to instruct that the jury could not “consider the minimizing of damages at all,” where there was evidence tending to show that plaintiff’s damages were less than lie claimed; such proof being admissible under the general issue.</p> <p>Appeal and Error — Review—Presumptions—Instructions.</p> <p>7. Since instructions are presumed to be followed, an erroneous instruction authorizing punitive damages will not be presumed on appeal to have been disregarded and compensatory damages only awarded, because the amount of the verdict, when compared with' the damages pleaded, might so indicate.</p> <p>Trial — Instructions—Exceptions—Sufficiency.</p> <p>8. An omnibus exception to several instructions is properly overruled if some of them are sound.</p>

<p>Submitted on Briefs.</p> <p>From Yamhill: George H. Burnett, Judge.</p> <p>This is an action by Traugott Wirth against John Richter, From a judgment in favor of defendant for $6.50, plaintiff appeals. A statement of the case is set forth in the opinion.</p> <p>Submitted on Briefs without argument under the proviso of Rule 18 of the Supreme Court. 56 Or. 622 (117 Pac. xi).</p>

<p>From Multnomah: Robert G. Morrow, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>The defendant, Roy Goodhue, was charged in the justice’s court with the crime of offering for sale and selling squares of butter cut from tub or packed butter, and not marked “tub butter,” in violation of the statute (Section 4, c. 179, Laws of 1911), which makes it—</p> <p>“Unlawful for any person * * to cut from any tub or packed butter any roll, or square or print of butter and offer' the same for sale, except the same be sold in wrappers plainly printed with the words ‘tub butter.’ * * . provided, however, that nothing in this section shall prevent any person * * from cutting butter from tubs or packs manufactured at any plant owned or operated by that person * * within the State of Oregon and from selling the same under the wrapper prescribed for Oregon creamery butter; provided, however, that not more than twenty days shall have elapsed between the time of manufacture and the time of cutting or molding said butter. * * ”</p> <p>The defendant demurred to the complaint—</p> <p>“For the reason that the act of the legislative assembly under which said information is filed is unconstitutional and void, and for the further reason that said act contravenes Section 8 of Article I and Section 2 of Article IV of the Constitution of the United States and Section 1 of the Fourteenth Amendment to the Constitution of the United States and the laws of Congress regulating interstate commerce.”</p> <p>The defendant was convicted, and he appealed to the circuit court, by which demurrer was sustained and the case dismissed, and the State appealed.</p>

<p>From Umatilla: Henry J. Bean, Judge.</p> <p>This is a proceeding by petition of Mabel Young to set aside a decree. For former opinion, see 59 Or. 348 (116 Pac. 95, 1060).</p>

<p>Specific Performance — Contracts Enforceable — Certainty — Description of Subject-Matter.</p> <p>1. To justify specific performance of an oral agreement to convey land, the land must be so described as to render its identity certain, in order that the court may make a specific decree that a particular tract of land be conveyed.</p> <p>Specific Performance — Contracts Enforceable — Certainty — Description of Subject-Matter.</p> <p>2. In an oral agreement to convey land, a description of the premises as “the twenty acres, including a barn and two houses, running to the river below and above the rapids, including the rapids,” is too indefinite to justify specific performance of the agreement.</p> <p>Specific Performance — Part Performance of Oral Contracts.</p> <p>3. To justify specific performance of oral agreements to convey land, there must have been performance of the agreement by plaintiff to such an extent as to render it inequitable to deny him the specific relief claimed.</p> <p>Specific Performance — Inadequate Remedy at Law.</p> <p>4. A person performing services for another, under an oral agreement to convey land in payment thereof, cannot have specific performance of the agreement, where he has a plain, adequate, and complete remedy at law to recover, the value of his services.</p> <p>Specific Performance — Part Performance of Oral Contracts — Acts Constituting.</p> <p>5. By an oral agreement, defendants agreed that if plaintiff would procure an option to purchase certain land they would buy the land and convey a part to plaintiff in payment of his services. Plaintiff procured the option, and after it had expired defendants purchased the land direct from the owner. Held, that there was not such part performance of the oral agreement as would take the case out of the statute of frauds; the payment of the purchase price, either in money or service, not constituting sufficient part performance. .</p>

<p>From Marion: William Galloway, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is a suit by T. D. Jones and 58 others to enjoin the collection of certain assessments levied by Ordinances 821 and 876 of the city of Salem. The circuit court entered a decree sustaining the assessment by the first ordinance, and held that made by the latter to be void. Both parties appeal therefrom. On January 25, 1909, the common council of the city of Salem passed a resolution declaring that it deemed it expedient to construct a sewer on all the territory lying south and east of the district drained by the Court street and Ferry street sewers and directing the city engineer to prepare plans and specifications for such construction. On April 25, 1910, plans and specifications for the contemplated work were presented at an estimated cost of $140,678.81. These were adopted and filed in the office of the city.recorder. On the’ same date the council adopted a resolution stating that it proposed to establish a sewer district, to be known as the South Salem district, and to construct a sewer therein, “according to the maps, plans and specifications prepared by the city engineer of said district at the expense of the property • benefited thereby and situated within the boundaries of said district.” The city recorder was directed to publish the following notice for 10 days in a daily newspaper of the city:</p> <p>“Notice of Intention to Establish a Sewer District, and Construct a Sewer System for South Salem.</p> <p>“Notice is hereby giyen that the common council of the City of Salem, Oregon, deems it expedient and proposes to construct a sewer system to be known as the South Salem sewer district, at the expense of the benefited property within said district, which said district and said sewer system is more particularly described in the maps, plans and specifications prepared by the city engineer and on file at the office of the city recorder, and which said maps, plans and specifications are hereby referred to the same as if they were fully written herein.</p> <p>“This notice is published for 10 days by order of the common council of the city of Salem, Oregon, and the date of the first publication thereof is the 27th day of April, 1910. W. A. Moores, City Recorder.”</p> <p>This notice was published for the required period as directed. Thereafter, pursuant to the direction of the council, the city recorder published a second notice for three days, giving the time the council would assess upon the property liable therefor its proportionate share of the cost of the construction of the South Salem sewer,, according to the maps, plans, and specifications adopted. On June 27, 1910, the council enacted Ordinance 821, levying an assessment upon the property benefited, for the construction of the South Salem sewer as designated and described on the maps, plans; and specifications theretofore adopted for such sewer, and on file at the office of the city recorder, and declaring the proportionate cost to each owner of property liable for assessment within the district, making the same a lien on the property so assessed for the cost of the construction of the sewer. The council on December 19, 1910, without further notice, passed Ordinance No. 876, declaring a deficit of $43,307.92 in the cost of the sewer, and levying an assessment upon the property therefor, both of which assessments were entered in the docket of city liens.</p> <p>Plaintiffs allege that a portion of the property assessed is situated in thickly populated parts of the city, and is of great value; that other portions are located in rural sections, are of small value, and comprise tracts of land, which, by reason of the physical topography, are unsuitable for building purposes and can never be benefited by the proposed improvements; that other parts lie below the grade of the proposed sewer, and cannot be benefited thereby; and, further, that the .assessment was made without regard to the direct benefits which would result from the improvement.</p>

<p>Appeal and Error — Notice of Appeal — Description of Judgment.</p> <p>1. The undertaking on appeal may he examined to identify the judgment appealed from, to sustain the sufficiency of the notice of appeal.</p> <p>Appeal and Error1 — Notice of Appeal — Description of Judgment.</p> <p>2. A notice of appeal which fails to specify the party securing the judgment appealed from or the party against whom the judgment was rendered is sufficient when aided by the undertaking on appeal, which designates the party against whom the judgment was secured and the party in whose favor it was rendered.</p> <p>Appeal and Error — Transcript on Appeal — Time to Pile.</p> <p>3. Where notice of appeal was served within six months from the judgment appealed from, and no objection was taken to the undertaking filed at the same time, the appeal, under Section 550, L. O. L., became perfected five days later, and a transcript filed within 30 days from that time was filed within the time prescribed by section 554.</p> <p>Appeal and Error — Abstract of Record — Defects.</p> <p>4. Where the failure of appellant to attach to the abstract a table of its contents, as required by rule of court, is not willful, and a reasonable excuse is made for the omission, appellant may be relieved of his default.</p> <p>Appeal and Error — Dismissal—Termination of Controversy.</p> <p>5. Though defendant in ejectment answered that he was in possession as tenant of R., and set up R.’s title, yet R. not having become a defendant, either on her own application or the requirement of plaintiff, as authorized by Section 326, L. O. L., or by order of court, plaintiff’s appeal will not be dismissed on the ground of termination of the controversy, because of plaintiff, after the judgment for defendant, having commenced a suit aginst R. to determine an adverse claim to the property, which resulted in a decree of dismissal, time to appeal from which has expired, without appeal being taken.</p> <p>New Tidal — Motion—Time of Piling.</p> <p>6. A motion for a new trial, filed within 20 days from the filing of the decision, was seasonably filed pursuant to Section 176, L. O. L.</p> <p>New Trial — Motion—Hearing.</p> <p>7. Section 175, L. O. L., requiring the motion for new trial to be heard before expiration of the term, does not apply where decisions are filed and entered in vacation.</p> <p>Appeal and Error — Record—Construction.</p> <p>8. Where the findings in the record are entitled “In the Circuit Court * * after the * * Term” of such court, the record conclusively shows that the term had expired when the judgment was' entered.</p> <p>New Trial — Motion—Irregularity.</p> <p>9. The want of a signature to the motion for new trial, being a mere irregularity and not misleading, did not render the motion a nullity.</p> <p>New Trial — Motion—Waiver of Irregularity.</p> <p>10. Irregularities in plaintiff’s motion for new trial were waived, where the defendant appeared and argued the motion.</p> <p>Appeal and Error — Record—Conclusive Effect.</p> <p>11. -A recital in the record that the defendant appeared and argued plaintiff’s motion for a new trial was conclusive.</p> <p>New Trial — Motion to Vacate Order — Time of Filing’.</p> <p>12. Where no motion was made during the term to vacate a valid order granting a new trial, a motion for such purpose could not be entertained subsequent to the expiration of the term.</p>

<p>From Douglas: James W. Hamilton, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>Abram Thrush, who is about 87 years old, in 1902 executed to each of four of his children a deed to a portion of his real estate: To Emry H. Thrush, 80 acres; to Abram Lincoln Thrush, 112% acres; to Orville H. Thrush, 40 acres; and to Mary Thrush, 40 acres, as a final disposition of so much of his property.- The deeds were placed in the custody of Mary Thrush not to be delivered to the grantees therein until the death of the grantor who was to have the possession and the proceeds therefrom during his life. A few months before this suit was commenced, Abram Thrush procured from Mary the deeds in favor of the plaintiff and Abram Lincoln Thrush and destroyed them, and on November 19, 1909, executed to plaintiff a deed to 40 acres of the tract included in the first deed to him, and conveyed to Abram Lincoln Thrush the other 40 acres included in the first deed to plaintiff. Thereupon plaintiff brought this suit against Abram Thrush, Abram Lincoln Thrush, and Mary Thrush to cancel the later deed to Abram Lincoln Thrush of date November 19, 1909, and to remove the cloud cast upon plaintiff’s title thereby.</p> <p>To this complaint the defendant Abram Thrush answered, alleging that the deeds executed in 1902 were not delivered and were subject to his control, and that he destroyed them for the purpose of making other disposition of his property.</p> <p>Upon the trial the court found that the deed executed in 1902 in favor of the plaintiff was delivered to Mary Thrush to be held by her until the death of Abram Thrush, and then to be delivered to the grantees; that it was not subject to recall by the grantor; and rendered a decree accordingly.</p>

From Douglas: James W. Hamilton, Judge. This is a suit by Abram Lincoln Thrush against Abram Thrush and Mary Thrush to set aside a deed to certain lands in Douglas County. There was a decree in favor of plaintiff, and defendants appeal.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice McBride. This is a suit brought by Agnes Butts, as administra-trix of the estate of H. D. Winters, deceased, against the defendant, Will E. Purdy, to have declared void and canceled an alleged deed from H. D. Winters, plaintiff’s intestate, to defendant.

From Clatsop; James U. Campbell, Judge. Statement by Mr. Justice Moore. This is an action by the State, on the relation of Edmund B. Tongue, Prosecuting Attorney of the Fifth' Judicial District, against the City of Astoria, Alfred Kinney and others to determine the validity of an alleged amendment of the charter of the City of Astoria, and involves the inquiry whether or not a petition invoking an exercise of the initiative power was filed within the time limited therefor.

<p>From Multnomah: John P. Kavanaugh, Judge.</p> <p>Statement by Mr. Justice.McBride.</p> <p>This is a mortgage foreclosure by Eugene La Forest against Charles Downer, C. P. Downer, his wife, Union Guaranty Association, a corporation, R. T. James, Fox & Co., a corporation, New Era Paint Co., a corporation, Julius H. Lensch, Elam Shaw and Julia O’Connell. The facts are as follows:</p> <p>In July, 1908, defendant Julia O’Connell was the owner of the north one-half of lots 1 and 2 in block 3 in Howe’s addition to the City of Portland. ' On July 29, 1908, Mrs. O’Connell, being in litigation with her husband and other parties, applied to Charles Downer and his wife, who were friends of hers, for counsel and advice in her troubles, and, acting upon Downer’s advice, gave him a warranty deed to the property, which recited a consideration of $1.00, upon the verbal promise by him to hold it in trust for her. She continued to reside upon the property until after the execution of the mortgage hereafter mentioned. In October, 1908, Charles Downer applied to William G. Beck, who was engaged in the business of loaning money, for a loan of $1,000 upon the property, and produced an abstract showing the title to be vested in him. It was discovered by Beck that Piggott & Finch, a firm of attorneys, had brought an action against Mrs. O’Connell for attorney’s fees and had attached the property as hers. Whereupon Beck notified Downer that the loan would not be made until the matter was arranged, and thereafter Downer, by fraudulently assuring Mrs. O’Connell that such a writing was for her protection, induced her to sign the following letter, prepared by him:</p> <p>“Portland, Oregon, October 9th, 1908.</p> <p>“Mr. Wm. G. Beck:</p> <p>“I sold my wright and tittle to the North End of Lots One and Two (1. & 2.) and Lots Eight Nine and Ten (8. 9. & 10) Block Three. (3) In Howe’s Addition to the City of Portland, County of Multnomah, To Charles. Downer, and recived A satisfactory price therefrom, And be it further understood that the Summons I recived from from Messrs. Piggott and Finch, have nothing to do with the Sail of the Property. As Mr. Downer was the Owner of the Property before I signed Eney papers in Piggott & Finch Office to open A new suit Against Dennis. O’Connell, And Mr. Downer, with his Own monn'ey Paid to the said Piggott and Finch. The sum of Three Hundred and Fifty Dollars for Me. For which I have now a receipt paid in full,</p> <p>“Yours respectful</p> <p>“Mrs. Julia O’Connell.”</p> <p>Upon the’ receipt of this, the loan was made, Beck’ paying out of the money advanced $170 to satisfy the claim under the attachment. Downer, after placing mortgages to the amount of $4,200 upon this and other property of Mrs. O’Connell, absconded. This suit was brought to foreclose the mortgages. Downer defaulted, and Mrs. O’Connell defends upon the ground that plaintiff took the mortgage with notice of her equities. There was a decree for defendant, and plaintiff appeals.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is a suit by W. S. Chapman, against Multnomah County, and is brought to set aside a conveyance executed by one of plaintiff’s predecessors in title. An amended complaint having been filed, the defendant moved to strike it out on certain grounds specified in the motion. The motion was overruled on April 22, 1909.

Submitted on Briefs without argument. From Clatsop: JAMES A. Eakin, Judge. Statement by Mr. Justice Burnett. This is a suit by the Whitney Company, Limited, against John Smith, for the specific performance of an agreement, in writing, to convey real property.

From Josephine: Frank M. Calkins, Judge. Statement by Mr. Justice McBride. This is an appeal from a judgment of the circuit court of Josephine County, whereby Nina B. Lathrop was awarded $3,000 in an action to recover upon an insurance policy, issued by the Modern Woodmen of America, a corporation, upon the life of Charles M. Lathrop. There was a former appeal and reversal of a judgment in favor of plaintiff, which is reported in 56 Or. 440 (106 Pac. 328: 109 Pac. 81).

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice McBride.

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

From Multnomah: ROBERT G. MORROW, Judge. Statement by Mr. Justice Burnett. This is a suit by the Victor Land Company, a corporation, against Charles Emmett Drake. The complaint is in the usual form for determining an adverse claim to real property not in the actual possession of any other person than the plaintiff.

From Polk: William Galloway, Judge. Statement by Mr. Justice Bean. This is a suit for partition by Thomas Crowley and another, against Nellie E. Grant and another.

<p>Municipal Corporations — Initiative Petition — Ordinance—Printed Copy — Error.</p> <p>Astoria City Ordinance No. 3315, Section 9, relating to the initiative power, provides that the auditor and police judge shall cause to be printed a true copy of the title and text of an ordinance to be submitted to a referendum vote or amendment, and that it shall be their duty to furnish a printed copy of such measure to any person offering to register as an elector in such city. Held, that where a proposed ordinance for the organization of a sanitary and reclamation district involving the expenditure of a large sum of money to be raised by assessment and managed by a commission composed of particular individuals, as printed for the voters, misstated the name of one of the members of the commission as the same appeared in the initiative petition, the defect was fatal.</p>

From Josephine: Frank M. Calkins, Judge., Statement by Mr. Chief Justice Eakin. This is a suit by T. K. Anderson, T. K. Anderson as administrator of the estate of H. A. Williamson, deceased, and Albert Phillips, against Emma G. Eobinson and Grant Phegley. This suit in its purpose was ancillary to other cases pending between the same parties in interest.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Chief Justice Eakin. This is an action by Clementine F. Lewis against the Northwestern Warehouse Company, a corporation, to recover rental for wharfage.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Chief Justice Eakin. This is an action by E. M. Rowley against Frank A. Hager, F. R. Schikora and the Woodburn Orchard Company, a corporation.

<p>Reformation of Instruments — Insurance Policies.</p> <p>1. If tbe property insured was mis-described in tbe policy by mutual mistake of tbe parties, equity bas power to reform it, and compel payment of tbe policy as reformed.</p> <p>Reformation of Instruments — Contracts—Insurance Policies— Failure to "Examine Contracts.</p> <p>2. Insured’s failure to examine Ms policy is not a bar to a suit to reform it for mis-description of .the property, and enforce it as reformed.</p> <p>Reformation of Instruments — Actions—Sufficiency of Evidence.</p> <p>3. In an action to reform an insurance policy by correcting a mis-description of the property insured, and to enforce it as reformed, evidence held to show that the intention of- the parties was to insure whatever property insured had on the premises.</p>

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

From Washington: James A. Eakin, Judge. Statement by Mr. Justice Burnett. This is a suit by H. D. Leo against Amelia J. Deitz to compel specific performance of a contract to convey real property.

From Multnomah; Henry E. McGinn, Judge. On Motion to Dismiss Appeal. Statement by Mr. Justice McBride. On March 24, 1911, A. C. Emery recovered judgment against George Arthur Brown for $1,065.65 with costs. On the 17th of April, 1911, defendant served a notice of appeal and filed his undertaking, and, no exception being taken thereto, his appeal became perfected on April 27, 1911.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. The defendant, Wong Si Sam, and one Low Soon, were indicted for the crime of murder in the first degree, charged with the killing of one Seid Wah Bing on the 20th day of December, 1911, by striking him on the head with a hammer, and cutting his- throat with a cleaver and razor. Wong Si Sam was tried separately and convicted of murder in the second degree.

<p>From Crook: William L. Bradshaw, Judge.</p> <p>The defendant, John Billups, was convicted of violating the local option law, and he appeals.</p>

<p>From Crook:' William L. Bradshaw, Judge.</p> <p>The defendant, C. A. Ramsey, was convicted of selling intoxicating liquors in violation of the local option law, and from the judgment imposed, he appeals.</p>

<p>From Crook: William L. Bradshaw, Judge.</p> <p>The defendants, Perry Smith, Harry Keener, Dave Biggerstaff, Billy McGee, George Gardner, George At-well, George B. Brown, William Snell, and James Green were severally convicted of selling intoxicating liquors, and appeal.</p>

From Wallowa: John W. Knowles, Judge. This is a suit by J. D. Day against J. H. Green and W. E. Pickering, partners, doing business under the firm name and style of Pickering & Green. From a decree in favor of plaintiff, defendants appeal.

From Union: John W. Knowles, Judge. Statement by Mb. Justice Bubnett. This is an action by George J. Wagener against the United States Nat. Bank of La Grande, to recover the sum of $66.33 which it is alleged the defendant received from the plaintiff for the use of the latter and has not repaid. The action was tried on the general issue tendered by the answer and resulted in a verdict and judgment for the plaintiff for the amount claimed, and the defendant appeals.

From Clackamas: James U. Campbell, Judge. The defendant, William Marlin Hardin, was convicted of the crime of statutory rape upon his stepdaughter, Eva Phelps, formerly Eva Woods, a girl under the age of 16 years, and from a sentence following such conviction he appeals.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Mary J. Scholl, as administratrix of the estate of Charles Scholl, deceased, against C. T. Belcher. The complaint contains two counts each nearly identical with the other.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Chief Justice Eakin. This is an action by R. E. Baker against E. F. Sea-weard, to recover $750 money had and received by defendant for the use of plaintiff. The facts out of which the action arose are that the plaintiff owned and managed two brands of sheep in Malheur County, and about October 20, 1910, intended visiting Colorado Springs for his health, to be gone about two months.

From Coos: John S. Coke, Judge. Statement by Mr. Justice Bean. This is a proceeding by Lewis Strong against Coos County for a writ of review. The defendant appeals from a judgment of the circuit court sustaining a writ of review and setting; aside an order of the county court of Coos County denying a petition for the establishment of a county road.

<p>From Klamath: Henry L. Benson, Judge.</p> <p>This is an action by the Big Basin Lumber Company, a corporation, against the Crater Lake Company, a corporation. The facts are fully stated in the opinion.</p> <p>Submitted on briefs without argument under the proviso of Rule 18 of the Supreme Court. 56 Or.- 622 (117 Pac. XI).</p>

From Malheur: Dalton Biggs, Judge. Statement by Me. Justice McBride. This is an action by the Nevada Ditch Company, a corporation, against the Pacific Livestock Company, a corporation, to recover $10,000 damages sustained by the plaintiff corporation and its stockholders and water users on account of the alleged unlawful and wrongful diversion of waters which said corporation and its stockholders are entitled to under a former decree of this court.

From Baker: William Smith, Judge. Statement by Mr. Justice Bean. This is a suit in equity by Eva G. Guinn against the Sumpter Valley Railway Co., a corporation, David Eccles and Grant Geddes, for the cancellation of two deeds to certain lots. From a decree in favor of defendants, plaintiff appeals.

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by the State of Oregon against Clatsop County to collect a balance of $4,207.50 State taxes apportioned t.o that county for the year 1909. The trial court sustained a demurrer to the complaint and dismissed the action. Plaintiif appeals.</p> <p>The substance of the allegation of the complaint are as follows:</p> <p>“That Clatsop County is an organized political division of the State of Oregon, with defendant William A. Sherman as county treasurer; that the Governor, Secretary of State, and State Treasurer, acting as a board, met an organized on February 2, 1909, to ascertain the amount of revenue necessary for State purposes for the ensuing year, and to adjust and equalize the assessments for the several counties of the State; that they met from time to time until the 24th day of February, 1909', when they duly adjusted such assessments and apportioned the amount of revenue among the several counties in the manner authorized by Chapter 14, General Laws of Oregon, 1909; that they sent due notice thereof to the respective counties of the State; that the proportion of the State revenue so apportioned to Clatsop County was $31,237.50, one half of which came due May 1, 1909, and the other half November 1, 1909; that on April"26, 1909, defendant William A. Sherman, as county treasurer, paid the sum of $13,515 on the first half of the State taxes, leaving a balance of $2,103.75 unpaid; that on October 26th of the same year another payment of $13,515 was made on the, second half of the taxes, leaving a like balance thereon; that no part of these sums has been paid; and that the same is now due, with interest from the time delinquent.”</p> <p>The defendants filed a general demurrer, which was sustained by the court. The plaintiff not desiring to plead further, the court rendered judgment, dismissing the action.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean. This is an action by the Peters & Roberts Furniture Company, a corporation, against the Queen City Fire Insurance Company, of Sioux Falls, South Dakota, a corporation, to recover on a fire insurance policy. The cause was tried before a jury, resulting in a verdict and judgment in favor of plaintiff for $2,406.61, from which defendant appeals. The complaint is in the usual form.

<p>Waters — Appropriation.—Riparian Rights — Injunction.</p> <p>1. While one may maintain either his riparian right or his right as an appropriator, he cannot claim title to water in both characters, the assumption of one being the abandonment of the other, hence one claiming 500 miners’ inches of the water of a stream, and attempting to enjoin others from in any way hindering the entire flow, will he held to he asserting rights as an appropriator hy which alone an exclusive use can he had, and not as a riparian proprietor.</p> <p>Waters — Injunction—Evidence.</p> <p>2. The drastic remedy of injunction will not he granted to protect water rights, unless, not only the appropriation hy notice, hut also the actual application of the water to the intended use and the necessity of the use for the purposes in question, he clearly shown.</p>

<p>Railroads — Injuries to Shipper — Evidence—Sufficiency.</p> <p>1. In a shipper’s action for personal injuries sustained while loading cattle on cars, evidence held to present a question for the jury whether defendant was negligent in failing to provide a running hoard on the fence around its loading pens for the use of shippers.</p> <p>Carriers — Carriage of Dive Stock — Nature of Carriers’ Duties.</p> <p>2. Carriers of live stock are common carriers.</p> <p>Railroads — Carriage of Dive Stock — Loading and Unloading— Injuries to Shipper.</p> <p>3. It is the duty of carriers of live stock to provide suitable and necessary means and facilities for receiving and loading stock, and such duty is not waived or shifted to the shipper because he loads or unloads them himself.</p> <p>Railroads — Injuries to Shipper — Proximate Cause.</p> <p>4. Where a shipper in loading cattle on a car was compelled, because of the absence of a running board on the fence of the loading pen, to sit astride of the fence and place his leg and foot inside the pen, where the stock in their natural efforts to avoid being forced into the car crowded against his foot and injured it, the absence of the running board was the proximate cause of the injury.</p> <p>Negligence — “Proximate Cause.”</p> <p>5. “Proximate cause” is probable cause. It does not mean the last act of cause or act nearest to the injury, but such act wanting in ordinary care as actually aided in producing the injury as a direct and existing cause. It need not be the sole cause, but must be a concurring cause, such as might reasonably have been contemplated as involving a result under the attending circumstances. 'It is such cause as would probably lead to injury, and which actually has led to it. It need not appear that the injuries complained of resulted instantly and immediately from the act, since the law regards one act as the proximate cause of another without regard to the lapse of time where no other cause intervenes between such act and the injuries, but there must be nothing to break the casual connection between the act and the injuries.</p> <p>Railroads — Shipper’s Injuries — Contributory Negligence.</p> <p>6. Where a carrier of live stock failed to provide a running board on the fence around its loading pens for the use of shippers in loading stock, the shipper was not guilty of contributory negligence in sitting on the fence in order to force the stock into the car, since he. either had to use such instrumentalities as the company furnished or fail to ship his stock.</p> <p>Railroads — Shipper’s Action for Injuries — Evidence—“Negligence.”</p> <p>7. Where it was claimed that a carrier was negligent in failing to provide a running hoard on the fence around its loading pens, evidence that other roads similarly situated provided such a running hoard, and that it was in common and general use,'was competent, since “negligence” is the failure to do what an ordinarily prudent person would do under the circumstances, and such evidence tended to show that ordinarily prudent carriers would furnish such a running hoard.</p> <p>Railroads — Shipper’s Action for Injuries — Evidence.</p> <p>8. Where it was claimed that a carrier of live stock was negligent in failing to provide a running hoard on the fence around its loading pen, and there was evidence that its yardmaster had charge of the pens and carried the key thereto and was the person who removed the running boards, evidence that plaintiff told the yardmaster that the absence of the running hoard was a source of danger, and asked him to replace it, was competent; the testimony tending to show that the yardmaster was a vice-principal, and that notice to him was notice to the company.</p> <p>Damages — Evidence—Loss of Earnings.</p> <p>9. In an action for personal injuries, evidence of plaintiff’s earnings under an arrangement to act as agent still in force at the time of the accident was competent to show his earning capacity, although there was no binding or continuing contract, and no fixed salary.</p> <p>Damages — Evidence—Loss of Earnings.</p> <p>10. In an action for personal injuries involving loss of earnings, evidence fairly indicating plaintiff’s capacity to earn money in his usual vocation and the probability of his being able to do so in the future should be admitted, but evidence consisting of mere guesswork and speculation upon what might happen in the future should be excluded.</p> <p>Harriers — Carriage of Live Stock — Receipt for Shipment.</p> <p>11. Live stock was accepted by a carrier for shipment when it gave permission to load it on its cars, whether or not it was so accepted when it allowed the stock to be placed in its stock pens.</p> <p>Appeal and Error — Review—Technical Errors.</p> <p>12. Where the parties have had a fair trial, and were given an opportunity to present the case on the merits, the judgment will not he reversed for trifling and technical errors which have not occasioned an unjust verdict.</p>

From Yamhill: Percy R. Kelly, Judge. Statement by Mr. Justice McBride. This is a suit by M. Thurber to enjoin the listing of plaintiff’s property by the municipal authorities of the city of McMinnville for the purposes of municipal taxation within said city.

<p>From Marion: Percy R. Kelly, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action of ejectment commenced by the city of Silverton against Edna J. Brown and J. M. Brown, to recover possession of half of a street between Water Street and Silver Creek, a distance of approximately 43 feet. The cause was tried before a jury, and a verdict rendered in favor of defendants. From a resulting judgment, plaintiff appeals.</p> <p>Plaintiff claims that defendants have wrongfully taken possession of a portion of Main Street. Defendants deny this, and allege that defendant Edna J. Brown is and has been the owner, in fee simple, of the property since December 5, 1883. They pleaded the statute of limitations, asserting that Mrs. Brown and her grantors have been in the exclusive, adverse possession of the tract since 1867, under color of title. Plaintiff joins issue by its reply, and avers that defendant Edna J. Brown is estopped from claiming that she is the owner in fee simple and in possession of the real property, for the reason that Polly L. Price, the person from whom she derived her title, laid out the town of Silverton (now the city of Silverton), causing the plat thereof to be recorded, and by such plat dedicated the streets shown thereon to the public, with a statement therein that Main Street was 66 feet wide, extending to Silver Creek; and that Mrs. Price sold lots and tracts to the public generally by reference to the plat.</p> <p>There was evidence introduced tending to show substantially the following facts: The original town of Sil-verton was laid out about the year 1854 by Mrs. Polly Price on a part of her donation land claim. In 1865 a survey of the town was made and a plat filed, a photographic copy of which is in the record. Water Street is the nearest street to the creek, which runs parallel therewith, or nearly so. The land between that street and Silver Creek has never been subdivided into blocks and lots, but has always been conveyed by metes and bounds. At any early day there was a road leading into the town of Silverton from the south, crossing the creek at a ford below the point where it is claimed by plaintiff that Main Street intersects the creek, and where a bridge was after-wards constructed. The bridge was rebuilt from time to time, practically in the same location, until the erection of the present structure, which is wider than the earlier ones, and a little downstream. The end of the bridge furthest from the part of the street in question is further up the stream than the other end, crossing the creek somewhat at an angle. There is no record of the county road from the south, or of its survey; but there is some evidence of a resurvey made of such road some time in the 70’s. At the timé Mrs. Brown purchased the property, there was a wooden building thereon. This was burned about September, 1885. Shortly after she erected a two-story frame building, which projected some 5 or 6 feet over the line claimed by the city, with an outside flight of stairs leading to the second story, 31/4 or 4 feet wide, also on the disputed tract. In 1904 the wooden building was removed and a brick one constructed, extending 11 feet over the contested tract. The remainder of the area in controversy has been used for a storehouse for wood, shingles, and other things. Of late there has been a retaining wall built near the bank of the creek, and also on a line with the northerly side of the bridge, extending near the south line of the land in controversy to a point on Water Street, 13 feet and 5 inches from the corner of the brick building; thence northerly to such corner. On top of this wall there is a sidewalk leading to the approach of the bridge. For some time the sidewalk in front of the brick building on Water Street 'has extended southerly past the line of dispute. Main and Water Streets are the two principal thoroughfares in Silverton. Prior to the time of the construction of the wooden building by Mrs. Brown in 1885, there had been a butcher shop and a shoe shop on the land. The butcher shop was built near the creek in 1861 or 1862, with a sidewalk leading from it to the bridge and also to Water Street. According to some of the evidence, it remained there about four years. It appears that Main Street has never been used its full width to an extension of its northerly line across Water Street and the tract in litigation. It is conceded that the land in dispute is described in the mesne conveyances from Polly L. Price to defendant Edna J. Brown.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice Burnett.

<p>Indictment — “Communication.”—“Threat.”</p> <p>1. An indictment charging that defendant “did by a written communication threaten injury to A. G., etc.,” is a sufficient allegation that there was a delivery to A. G., being substantially the words of the statute (Section 1929, L. O. L.); a threat being a declaration of a purpose to work an injury to another and designedly put forth by the individual making the threat, either directly or indirectly, so as to operate upon the mind of the person threatened, and a “communication” being that which is communicated or imparted; intelligence; news; a verbal or written message; and these two words in the indictment include not only the utterance of the threat, but also the bringing the same to the notice of the person threatened.</p> <p>Criminal Daw — Evidence—Statements Before an Officer.</p> <p>2. Section 1781, L. O. L., providing tliat at a preliminary examination the magistrate must inform defendant that he may make any statement he sees fit in explanation, but that his failure to do so cannot he used against him, relates to judicial confessions and not to extrajudicial confessions, hence does not relate to a writing made to the district attorney, and such a writing, made under no compulsion and without any inducements, is admissible in evidence.</p> <p>Criminal Daw — Evidence—Handwriting.</p> <p>3. Under Section 7 88, L. O. L., providing that evidence respecting the handwriting may he given by a comparison with writings admitted or treated as genuine by the party against whom the evidence is offered, a writing voluntarily made by defendant in the sheriff’s office was admissible.</p> <p>Threats — -Instr uctions.</p> <p>4. In a prosecution for threats under Section 1929, L. O. L., both the authorship and promulgation of the offending document must be brought home to the defendant; and to instruct that, if the jury were satisfied that defendant wrote the instrument, “or the communication was delivered,” to the party threatened, he should be found guilty was error.</p>

From Sherman: David R. Parker, Judge. Statement by Mr. JUSTICE McBride. The defendant, Albert Hill, was jointly indicted by the grand jury of Sherman County with Walter Hill for the larceny of two mares, the property of Todd Bros. The evidence introduced by the State tended to show: That the mares were last seen by the owners about May 28, 1911, and at that time they were upon the range in Sherman County, near the premises of the owners.

From Douglas: John S. Coke, Judge. •Statement by Mr. Justice McBride. The defendant, Max Weiss, was indicted by the grand jury for the crime of selling 12 bottles of beer in prohibition territory. The testimony shows that these 12 bottles were sold from defendant’s cold storage warehouse, which contained nothing but beer, by one J. J. White, an employe of defendant. The defendant was convicted, and appeals.

Submitted on briefs on motion to dismiss; From Union: John W. Knowles, Judge.' Statement Pee Curiam. This was originally a proceeding begun to recover for the use of the State of Oregon certain property in Union County as upon an escheat. The State having obtained judgment, the ease was brought here on appeal and reversed in an opinion reported at 55 Or. 419 (103 Pac. 512: 104 Pac. 967: 106 Pac. 444).

<p>Waters and Water Courses — Public Water Supply — Rates— Bonds — Ordinance Surrending Governmental Powers.</p> <p>An issue of bonds for the construction of waterworks was authorized, and thereafter the council adopted an ordinance attempting to fix the water rates, taking from the people the right to sell or lease the water plant, or to grant any water franchise during the life of the bonds. Held, that while a city contracting in its proprietary capacity may make contracts authorized by charter and necessary in carrying out its purposes, even though the terms of such contracts extend beyond the term of the officer acting, that as the ordinance attempted to limit governmental or legislative powers its terms were ultra vires and void.</p>

From Multnomah: James W. Hamilton, Judge. Statement by Mr. Justice Moore. This is an action by Louis P. Thornton, as administrator of the estate of Ruth A. Thornton, deceased, against the Portland Railway, Light & Power Company, a corporation, to recover damages resulting to her estate by reason of her death which was caused by being knocked down and run over by one of the defendant’s cars.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a suit by James Gladstone Howe, a minor, by Carrie Howe Sherwood, his guardian, against L. E. Kern, Helen M. Kern, his wife, Joseph H. Nash and School District No. 1, of the city of Portland, Multnomah County, Oregon, a corporation. The facts disclosed by the record are as follows:</p> <p>James Howe, who died on June 24, 1901, made a will on March 14, 1898, and among other things provided:</p> <p>“Third — I give, bequeath and devise unto my said wife, Carrie Howe, all that property platted and dedicated by me as Howe’s Addition to the city of Portland and comprising about seventy-two lots, more or less, to be used or disposed of by her for the benefit of herself and my said infant son, and I expressly request that my wife provide for the education and maintenance of my said son out of the proceeds of said lots; provided, that three of the lots of said Howe’s Addition be held in trust by my said wife for my stepson, William Leon Wheatly, the same to be selected and deeded to said William Leon Wheatly by my said wife whenever in her judgment she shall deem it proper or advisable to do so. Provided, further, that this devise to my wife shall also be subject to the conditions and limitations hereinafter expressed.</p> <p>“Fourth — I give, bequeath and devise unto my wife, Carrie Howe, and my infant son, James Gladstone Howe, share and share alike, that piece or parcel of land containing about 5% acres of land lying to the east of and adjoining the said Howe’s Addition to the city of Port-' land, said interest of my wife being also subject to the conditions and limitations hereinafter expressed.”</p> <p>“Sixth — I hereby appoint my wife, Carrie Howe, the legal guardian of my infant son, James Gladstone Howe, and request she be allowed to act as such guardian without bonds.”</p> <p>Item 7 provides the conditions upon which the devises to the wife shall depend, and she is nominated executrix without bonds.</p> <p>By the inventory and appraisement of the property of the estate, the 72 lots mentioned in item 3 of the will are valued at $14,600, and the 5%-acre tract mentioned in item 4 is valued at $5,750.</p> <p>On April 3, 1901, Carrie Howe, the executrix, filed a petition in the county court for the sale of real estate for the purpose of paying the debts of the estate, the expenses of administration, and for the support of the widow and minor child, who was five years of age and the only heir of the decedent. It appears from the petition that there was no personal property of the estate; that the funeral expenses were $227.50, the delinquent taxes $39.25, taxes for the current year $166.53, expenses of administration already incurred, $73.25; that petitioner is without means to support herself and son; that the debts secured by mortgages are $1,300; that there is' a mortgage on block 5 for $600, one on blocks 6 and 7 for $400, and one on blocks 1, 2, and 8, and lots A and B for $300. She prays for an order directing her to sell at private sale any part of the real property for cash or on terms of one-third cash and the payment of the balance to be secured by mortgage.</p> <p>The court made an order on May 6, 1901, licensing the executrix to sell at private sale such part or parts of block 3, which is appraised at $1,500; block 4, appraised at $2,500; lots 23 and 24 of block 7 in Wheatland Addition to East Portland, appraised at $15; and the 5%-acre tract, appraised at $5,750 — as may be necessary to pay the debts and expenses of administration. On and prior to September 8, 1902, she had sold 12 lots in blocks 2 and 3 for $1,455, and three other lots in block 2 for $400, the date of which sale does not appear, making $1,855 received from sales prior to the sale of the 5%-acre tract, which was more than sufficient to pay the mortgage debts. This tract was sold to defendant Kern on December 1, 1902, for $3,750; $1,750 being paid in cash, and the remainder being secured by mortgage due in one year.</p> <p>The final account, filed April 23, 1903, shows that the total amount received in cash from all sales, including the $400 collected for rent of the 53/4-acre tract, was $4,006, over and above the $2,000 deferred payment; that the total debts and expenses paid, including the mortgage debts, was $3,256.88.</p> <p>On April 4, 1903, the executrix brought suit for specific performance against defendant Kern, he having refused to execute the mortgage to pay the deferred payment of $2,000, the purchase price of the 5%,-acre tract, and on May 12, 1903, Kern answered the complaint. He set out items 3, 4, and 7 of the will, and among other defenses alleged that the plaintiff, as executrix, could not give him a good title to the tract for the reason that no petition for an order of the sale of the real property herein mentioned had ever been made, stating the necessity of the sale.</p> <p>The minor child was made a party defendant in the suit on July 3, 1903, on motion of defendant Kern, and summons was duly served on him on that date, and, on motion of defendant, Karl Stephan was appointed guardian ad litem for the minor. On the same day defendant Kern filed what he terms a cross-bill, under the title of the suit, which is, in fact, a complaint to quiet title to the property against the minor. Stephan, the guardian ad litem, accepted service of the cross-complaint on July 8, 1903; but no summons was issued or served on the minor. The guardian ad litem answered the cross-bill, admitting the justice of the complaint, and consenting to the decree. On July 16, 1903, the court made findings, and rendered a decree to the effect that the county court acquired jurisdiction of the minor and of the land in the proceeding to sell the same; that Kern acquired title thereto, and adjudged that the minor had no interest therein. On August 23, 1907, Kern sold and conveyed by a warranty deed, for a valuable consideration, 2*4 acres of the 5%-acre tract to defendant Joseph H. Nash, and on September 14, 1907, he sold and conveyed to the defendant school district No. 1 of Multnomah County, Oregon, for valuable consideration, 2*4 acres of the tract, and the school district has erected a school building thereon at an expense of $37,000.</p> <p>Plaintiff brought this suit on May 26, 1910, alleging the facts, which are briefly stated above, for the purpose of having declared void the proceedings of the county court authorizing the sale of the minor’s interest in the 5%-acre tract, and that the decree of the circuit court, in relation thereto, be held for naught, and the conveyances be declared void, alleging want of jurisdiction of the county court to authorize such sales, and alleging collusion and fraud between Carrie Howe, executrix, and Kern, in bringing the cross-bill and the proceeding therein, to bar the title of the minor.</p> <p>Defendant Kern and wife answered, admitting some of the allegations and denying the others. Defendant Nash and the school district answered separately, setting out the proceedings of the county court, relating to the sale, and the proceedings of the circuit court quieting the title of Kern to the property; also, pleading the same facts as an estoppel against the plaintiff, and alleging that defendants are innocent purchasers thereof for value, without notice of any defect in the title.</p> <p>Upon the trial of the suit the court made findings and rendered a decree that defendant Nash and the school district, respectively, are the owners in fee simple of the tracts conveyed to them, by Kern, and that the plaintiff has no interest therein, from which decree plaintiff appeals.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Bean. This is an aciton by W. B. Hunter against D. H. Harris for contribution as co-surety on a note.

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. JUSTICE MOORE. This is an action by Oliver K. Jeffery against Ella M. Smith and O. M. Smith, her husband, to recover the possession of lots 1, 2, and 3, in fractional block 330, in Portland, and damages for an alleged wrongful occupation of the premises.

From Multnomah: William N. Gatens, Judge. Statement by Mr.- Justice Bean. This is an action by Louis Vanyi against the Portland Flouring Mills Company, a corporation, to recover for personal injuries. The cause was tried before a jury. A verdict was rendered in favor of plaintiff, and a judgment entered thereon, from which defendant appeals.

<p>Intoxicating Liquors — Wrongful Sale — Evidence.</p> <p>1. In a prosecution for violation of the local option law, the State was entitled to show that accused received large shipments of liquor into dry territory a short time before the alleged sale to show the character of his business.</p> <p>Criminal Law — Best Evidence — Receipts.</p> <p>2. Where a drayman signed original receipts for liquor received from a carrier, consigned to accused in dry territory, and delivered the liquor, such receipts were not objectionable in a prosecution for violating the local option law as not the best evidence.</p> <p>Intoxicating Liquors — Wrongful Sale — Question for Jury.</p> <p>3. Where, in a prosecution for violating the local option law, it was proved that accused had received large shipments of beer at his place of business, and three days after the alleged sale the sheriff seized over four barrels of bottled liquors in accused’s place of business, whether the liquor so seized was the same liquor that was shipped in by accused, and was in his store at the time of the alleged sale, was for the jury.</p> <p>Intoxicating Liquors — Local Option Law — Violation—Government License — Effect.</p> <p>4. Section 4937, L. O. L., provides that the issuance of a license or internal revenue special tax stamp by the Federal Government to any person for the sale of intoxicating liquors shall he prima facie evidence that such person is selling intoxicating liquors. Held, that a special tax stamp authorizing accused to engage in the business of a retail dealer in “malt liquors” was prima facie evidence that accused was a retail liquor dealer, though the forms of the special tax stamp used by the Government did not describe the liquors as intoxicating as in the statute, but referred, one to “malt liquors,” and the other merely to “liquors.”</p> <p>Criminal Law — Weight of Evidence — Detectives.</p> <p>5. Where a prosecution for violating the local option law depended for proof of a sale on the evidence of a detective, who was fully cross-examined and was corroborated by the circumstances, the weight to be given to his testimony was for the jury.</p>

<p>Jury — Overruling' Challenge for Cause — Effect of Peremptory Challenge.</p> <p>1. Although the trial court may have erred in overruling a challenge for cause, the error is cured by the exercise of a peremptory challenge against the juror in question.</p> <p>Jury — Challenge for Cause — Effect of Failure to Exercise Peremptory Challenges.</p> <p>2. Until a defendant’s peremptory challenges are exhausted, he cannot complain of the overruling of his challenge for cause to any particular juror who afterwards serves on the panel, since peremptory challenges are provided to enable the defendant to secure a fair and impartial jury; and, unless he exercises them when occasion arises, he is in a sense leading the court into error which he might have cured.</p> <p>Jury — Competency—Formation or Expression of Opinion.</p> <p>3. Section 121, subd. 2, L. O. L., makes the existence of a state of mind on the part of a juror which satisfies the trier that he cannot try the issue impartially and without prejudice to the substantial rights of a party a disqualification, and Section 123, Ij. O. L., provides that a juror’s formed or expressed opinion upon the merits is of itself insufficient to sustain a challenge, unless the court is satisfied that the juror cannot disregard his opinion and- try the case impartially. On a trial for murder defendants challenged for cause, on the ground cf a formed opinion, a juror who was not acquainted with deceased, or with defendants or any persons in the neighborhood, who had heard some reports of the inquest and some statements about confessions by defendants, and who admitted an opinion conditioned on the truth of what he had heard, but who, on a searching examination by the defendants, stated that he could give fair and impartial consideration to the testimony as to such confessions, that he would have to hear the evidence before reaching a conclusion, and that he would take the law from the court and render verdict according to the evidence, and who was instructed by the court that the State would have to prove premeditation in order to convict of murder in the first degree. Held, in view of the advantage of the presiding judge in seeing and hearing the juror, and in the absence of anything to show that the trial had not been fair, there was no error in overruling the challenge.</p> <p>Homicide — Evidence—Deliberate and Premeditated Malice— “Murder in the First Degree.”</p> <p>4. Under Section 1893, L. O. L., defining murder in the first degree as a homicide with deliberate and premeditated malice, or in the commission or attempt to commit any rape, arson, robbery, or burglary, the State, charging a killing while in the commission of such other offenses, need not prove deliberate or premeditated malice; but, as malice is'not necessarily excluded by such other offenses in which homicide results, defendants cannot complain if the State elects to predicate the murder upon a killing with deliberate and premeditated malice.</p> <p>Homicide — Evidence—Motive—Possession of Money.</p> <p>5. While the State is not bound to prove a motive for homicide, it may do so, and may show that decedent was in the possession of money at the time of his death and that defendants had like property immediately afterwards, although such circumstances create no presumption, and are open to explanation.</p> <p>Criminal Law — Evidence—Confessions While in Custody.</p> <p>6. The fact that a confession is made to an officer, or while the defendant is in custody, does not render it inadmissible as a confession.</p> <p>Criminal Law — Evidence—Confessions—Promise or Inducement.</p> <p>7. In a prosecution for murder, it appeared that, while one of the defendants was in jail on another charge, a newspaper reporter interviewed him in the presence of a detective after telling defendant that he was a reporter, that he need not say anything, that he intended to publish what he said, and that, if called upon, he would testify in court as to what he said, and defendant, without hope or inducement, related a general history of his life and mentioned the name of deceased, upon which one of those present said: “Now, George, tell the truth about this matter. Get that load off your stomach, and you will feel better” —that the other defendant was subpoenaed by the grand jury, told by the district attorney that he was not bound to say anything, and that, if he did, it might be used against him, and related to one of the grand jury his participation in the homicide. Held, in view of the warnings given to both defendants, that the adjuration to the first contained no element of compulsion or inducement, and that the statements of both were admissible as voluntary confessions.</p> <p>Criminal Law — Appeal—Discretion of Trial Judge — Admission of Evidence.</p> <p>8. The admissibility of a confession is in the first instance a mixed question of law and fact to be determined by the trial judge, to whose discretion much latitude must be given, so that his decision thereon will not be disturbed, unless there is apparent and manifest error.</p> <p>Criminal Law — Admissibility of Evidence — Other Offenses and Character of Accused.</p> <p>9. In a trial for murder, where statements of one of the defendants were introduced to the effect that the other had confessed to him complicity in the killing of various persons in different parts of the State, and where the evidence for defendants tended to show that they were below the average grade of intelligence, the refusal to permit defendants to show in detail that one of them had no connection with any of the homicides mentioned in his statement to the other on the ground that it indicated that that defendant had a weakness of mind, and a propensity to confess crimes of which he was innocent, so as to raise a probability that the confession in evidence was also false, was proper; since the argument applied only to the weight to be given to such a confession, and since its admission would have confused the issue, and led to an irrelevant investigation.</p> <p>Criminal Law — Evidence—Confessions—Nature and Sufficiency as Admission of Guilt.</p> <p>10. A confession is admissible as an exception to the general rule against hearsay, and after admission defendant may show that he made no such confession, and may also give evidence tending to establish his innocence of the crime charged, or to overcome the evidence given against him by the prosecution.</p> <p>Criminal Law — Trial—Instructions—Insanity.</p> <p>11. In a trial for murder, where the State introduced confessions by the defendants, and the defendants thereupon introduced evidence tending to show that one of them was weak-minded, and had a propensity to confess crimes of which he was innocent, an instruction on insanity, if erroneous, was harmless.</p> <p>Criminal Daw — Trial—Argument of Prosecuting Attorney.</p> <p>12. The court sustained objections by defendants to the statements of the prosecuting attorney in his closing address with a caution to the jury not to regard such statements. Held, in view of a bill of exceptions giving only the interpretation placed thereon by the defendants and not the language itself, that the statements were not reversible error.</p>

<p>States — Statutory Provisions — “Any Person.”</p> <p>1. The State may maintain, ejectment under Section 325, L. O. L., providing that any person having a legal estate in real property and a present right to the possession thereof may recover such possession- by an action at law; the common-law rule that the king cannot be disseised having no application, since disseisin is not necessary under tlie statute, and “any person” being broad enough to include artificial as well as natural persons.</p> <p>States — Actions—Capacity to Sue.</p> <p>2. The State may maintain actions in its own name to enforce its rights and redress its wrongs without express statutory authorization.</p> <p>States — Rights of Action by State.</p> <p>3. Under Section 2634, L. O. L., giving the Secretary of State the custody, care, and control of the Capitol Building and grounds, ejectment to recover the possession of rooms in the Capitol Building is properly brought in the name of the State on relation of the Secretary of State instead of in the name of the Secretary of State, since the statute does not give him exclusive possession of such building and grounds.</p> <p>States — Actions—Parties—Relators.</p> <p>4. Where a suit is not for the purpose of enforcing a private right of the relator, but to enforce a public right in the interests of the people, he may bring the action in the name of the State to enforce the public right, even though he has no interest in the subject of the litigation.</p> <p>Parties — Demurrer—Misjoinder of Parties.</p> <p>5. If the Secretary of State is improperly joined as a co-plaintiff with the State in ejectment to recover possession of rooms in the State Capitol, the misjoinder should be cured by a motion to strike out and is not a ground of demurrer.</p> <p>District and Prosecuting Attorneys — Statutory Provisions.</p> <p>6. Under Section 17, Article VII, of the Constitution, providing for the election of prosecuting attorneys and prescribing their duties, is still in force notwithstanding the amendment of Article VII in 1910 (Laws 1911, p. 7), which makes no reference to this subject, in view of Section 2 thereof, providing that the courts, jurisdiction, and judicial system, except as expressly changed thereby, shall remain as at present constituted until otherwise provided by law.</p> <p>Attorney General — Statutory Provisions.</p> <p>7. Under Section 17, Article VII, of the Constitution, providing for the election of prosecuting attorneys who shall be the law officers of the State and of the counties within their districts and shall perform such duties pertaining to the administration of law and general police as the legislative assembly may direct, does not prohibit the legislature from providing, as they have by Section 2670, L. O. L., that the Attorney General shall, when requested by certain State officers, defend any action, suit, etc., in which the State is a party or interested.</p> <p>Constitutional haw — Legislative Power — Scope.</p> <p>8. The power of the legislature is unlimited in all matters of legislation except in so far as it is limited by the constitution.</p> <p>States — Actions—Form of Remedy.</p> <p>9. The State, having a right to bring ejectment, may exercise such right even though the same purpose could be accomplished by mandamus and the remedy by ejectment is neither speedy nor adequate.</p>

<p>From Union: John W. Knowles, Judge.</p> <p>Statement by Mr. Justice McBride.</p> <p>This is a suit brought by L. S. Kelsey to enjoin Charles Bertram from interfering with plaintiff in the construction of an irrigating canal across certain lands claimed by defendant and through or under a sawmill maintained and operated by said defendant. The complaint alleges that plaintiff is the owner of certain arid lands near the town of North Powder, in Union County, and that he is the owner of the right to build and construct an irrigating canal to ..convey the water from the tailrace of the North Powder Milling Company’s flouring mill, in said town, to his land near Clover Creek, in said county, said proposed canal being about seven miles in length, and also of a right granted by H. 0. Gorham, the owner of the land claimed by defendant, to construct said ditch over said land, for which property defendant had a lease for four years, expiring about October 1, 1911; that about April 27, 1910, while defendant was in possession of the property under the lease from Gorham, and while plaintiff was surveying and locating the line of said canal, he entered into an oral contract with defendant, whereby defendant granted him the right to construct and maintain the canal over and across said sawmill property, in consideration of which plaintiff agreed to furnish defendant and said sawmill property water from said canal to fill and keep full the log pond of said sawmill, and to build and maintain over the canal a suitable logway for transporting logs over the same to the log pond or mill; that thereafter, in pursuance of such agreement, plaintiff entered upon the construction of the canal, and during the summer, fall, and winter of 1910 built nearly all of it, at an outlay of over $5,000, and built said canal over all but about 30 feet of the sawmill property, and was proceeding to complete the same over the mill property, when he was stopped by defendant, who had plaintiff arrested for trespass, and threatened to continue such arrests from day to day and to hinder and delay plaintiff; that defendant’s lease has expired, but he still continues to interfere with plaintiff in his work, and threatens further so to do, unless plaintiff ceases to construct the canal across said premises. A preliminary injunction issued, and defendant answered by a generad denial, and also alleged ownership of the mill, and claimed that he was entitled to possession of the land by virtue of a lease from Gorham, which was made for six years, with an option to defendant to purchase the property at any time within six years, and that he still had the right under such lease to occupy the property for the term of-years, and during said time to become absolutely the owner of the premises by paying the price mentioned in the lease. Defendant denied having made any agreement whatever with plaintiff, or having given him any permission to construct his canal across the property, and alleged that the construction' of the same would irreparably damage the property and render the same valueless. The court found for the plaintiff on all the issues, and defendant appeals.</p>

<p>From Union: JOHN W. KNOWLES, Judge.</p> <p>Statement by Mr. Justice Moore.</p> <p>This is an action' by Mary A. Jones, as administratrix. of the estate of her husband, John T. Jones, deceased, against Union County, to recover damages resulting from his death which was caused by the falling of a bridge on a public highway. The' negligence alleged as a basis for the recovery is the failure of the defendant to keep the bridge in proper repair in consequence of which it fell.</p> <p>The answer denies such want of care and avers inter alia that the injury was caused by the failure of Jones to place planks beneath the wheels of a traction engine, the steering gear of which he was managing when he was hurt.</p> <p>The reply admits that no lumber was used except the decking of the bridge, but denies that the failure to place beneath the wheels of the engine any planks contributed to the injury sustained. The case was tried, and, a judgment having been rendered for the plaintiff, the defendant appeals.</p>

<p>From Umatilla: Gilbert W. Phelps, Judge.</p> <p>Statement by Mr. Chief Justice Eakin.</p> <p>This is a suit by F. W. Paine and J. G. Paine against The Milton, Freewater & Hudson Bay Irrigation Company, a corporation, W. C. Gallaher and Mary Gallaher, his wife, M. 0. Beauchamp and Mary Beauchamp, his wife, J. B. Krumbah and Mary Krumbah, his wife, F. B. Smith and Mary Smith, his wife, J. W. Jones and Mary Jones, his wife, G. M. Lockwood and Mary Lockwood, his wife, F. C. Morley and Mary Morley, his wife, J. E. Boyer and Louise H. Boyer, his wife, Fred Griesler and Mary Griesler, his wife, R. E. Record and Mary Record, his wife, Herman Markman and Mary Markman, his wife, W. F. Gentry and Mary Gentry, his wife, R. H. Wellman and Mary Wellman, his wife, F. J. Meihoff and Mary Meihoff, his wife.</p> <p>The facts as disclosed by the record are as follows:</p> <p>The defendant company was incorporated the 22d day of January, 1903, under the laws of Oregon, for the purpose of diverting water from the Walla Walla River and its branches for irrigation and other purposes, to construct dams, ditches, and reservoirs for that purpose, and particularly to take water not otherwise diverted or used, to be applied in winter and spring irrigation, namely, between October. 15th and the following May 15th, for use, sale, rental, or distribution, and to collect rents, rates, and compensation for the same, or for its own use for purposes of irrigating lands lying in said county (Umatilla), and for supplying water for household and domestic consumption on ranches and dry land within said county; and for that purpose appropriated a large amount of water, namely, 6,000 inches from said stream. The capital stock is $5,000, consisting of 50 shares of the value of $100 each. The stock was all subscribed on and prior to May 31, 1904, mostly by farmers owning lands under the ditch- Seven shares were subscribed by C. J. Bowers, and seven shares by the plaintiffs, Paine Bros. Soon thereafter F. W. Paine, a member of the firm of Paine Bros., purchased the seven shares subscribed by Bowers, and from Shaw one share, and plaintiffs now own those 15 shares; but they own no land to which the water can be made available. Much of the stock in defendant corporation, other than that owned by plaintiffs, has been transferred and the shares divided into fractions, one transfer being of 1-48 of one share. The expense of the construction of the ditch was about $9,000, and the extension and maintenance of the same has far exceeded that sum. The record does not show how much water has been sold annually, but sales have been made at an annual rental of $1.50 per acre, and the receipts of the company have not been sufficient to pay the expense of maintenance; and in April, 1911, the company was in debt about $4,000. With a view to meet said indebtedness and to accumulate a fund of $2,000 for betterments, the directors offered to sell perpetual water rights to the extent of 2,000 inches at $3 an acre, subject also to an annual maintenance charge of $2 an acre, or so much thereof as should be needed for that purpose, and agreed that no greater or larger sum than $2 per acre per year should ever be charged a purchaser for maintenance or ditch fee, and that the company should reduce the amount thereof every year to the actual and necessary cost of maintenance; and that in case of any unusual damage or break in the main canal, or any lateral, by flood or otherwise, resulting in damage or loss to the company or others, the repair of such canal or lateral, and the payment of all damages resulting therefrom over and above the said $2 per acre per annum, should be borne pro rata by the water users. Many sales of water were made under that offer, four of the directors being also purchasers upon the same terms as others, and deeds were issued accordingly. The policy of the company was to sell only to stockholders — they being entitled to no water on the credit of the stock alone — and the amount of stock owned by any one had no relation to the amount of water he should be allowed to purchase, or to the price to be paid; for instance, John E. Boyer owns less than one share and purchased 115 inches of water, and Mark-man owns one-fourth of a share and purchased 140 inches, and others in ■ the same or greater proportion. All sales were made upon the basis of 1 inch of water per acre; the stock being valued at this time from $300 to $400 a share. These sales were all made without the knowledge of or notice to the plaintiffs. (In the pleadings and briefs the “cubic inch” is used as the basis of measurement, probably as a fractional part of one cubic foot per second; but a cubic inch per second would be only 25-1000 of a miner’s inch. However, we will assume that the miner’s inch, under six-inch pressure, was intended instead of the cubic inch, as it is so described in the contract of sale.)</p> <p>The trial court made findings in favor of defendants and dismissed the suit, and plaintiffs appeal.</p>

<p>Principal and Surety — Scope and Extent of Liability.</p> <p>1. The sureties on a bond given by a contractor for the construction of a school building under Section 6266, L. O. L., requiring contractors on public work to give a bond for the benefit of laborers and materialmen, are not liable for materials furnished to the contractor’s partner and charged to him individually, although used in the construction of the building, since the bond, being statutory, should be strictly - construed, and the sureties may demand that those claiming its benefits shall bring themselves fairly within its terms.</p> <p>Principal and Surety — Scope and Extent of Liability.</p> <p>2. Sureties on a bond conditioned for the liability of a single person are not liable for debts contracted by a firm of which he is a member, except where the principal, after executing the bond, takes in a partner, and the goods are delivered to him, and charged to his individual account.</p>

From Baker: William Smith, Judge. Statement by Mr. Justice McBride. This is a suit by Frank E. Hodgkin against John Boswell to set aside a tax deed and remove a cloud from plaintiff’s title to lot 4, in block 25, in the town of Vale, Oregon. The cause was heretofore before this court, and is reported in 57 Or. 88 (110 Pac. 487).

<p>Evidence — Written Instruments — Duplicates—“Original Instrument.”</p> <p>Where a declaration of trust is made in duplicate by the same impression of the typewriter, and signed at the same time, each party taking one, either is admissible as an original.</p>

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>Statement by Mr. Justice Bean.</p> <p>This is an action by S. W. Lacey against The Oregon Railroad & Navigation Company, a corporation, The Oregon Short Line Railroad Company, a corporation, and The Denver & Rio Grande Railroad Company, a corporation, to recover $292.50, damages for loss of and injury to personal property caused by the alleged negligence of the defendants in transporting the goods as common carriers from Telluride, Colorado, to Portland, Oregon, and failure to deliver the same to plaintiff. The trial court directed a verdict in favor of defendants, and plaintiff appeals. It appears that on September 20, 1910, plaintiff delivered to the K,io Grande Southern Railroad Company, at its station at Telluride, Colorado, one sewing machine (crated), one trunk of tools (crated), one box of books, and one box of household goods, to be shipped by way of Salt Lake City, Utah, to Portland, Oregon, prepaying the freight, which amounted to $29.85, to destination. This shipment was routed over the line of the Rio Grande Southern Railroad Company from Telluride, Colorado, to' Ridgeway," Colorado; thence over the line of the Denver & Rio Grande Railroad Company to Sale Lake City, Utah, continuing over the Oregon Short Line Railroad to Huntington, Oregon; and thence over the line of the Oregon Railroad & Navigation Company to Portland, Oregon. When the shipment arrived in Portland, the trunk of tools was missing, and the box of household goods was broken and several articles lacking. Plaintiff alleges that the defendants carelessly and negligently lost the trunk of tools and permitted the box of household goods to be opened, its contents rifled, and a part taken therefrom. This action was brought against the Oregon Railroad & Navigation Company, a corporation, the Oregon Short Line Railroad Company, a corporation, and the Denver & Rio Grande Railroad Company, a corporation. On motion of counsel for the Denver & Rio Grande Railroad Company, the service of summons and complaint upon that defendant was quashed, and the other defendants answered. At the close of plaintiff’s case, the answering defendants interposed a motion for a nonsuit, which was denied by the court. Testimony was introduced by the defendants, after which they moved for a directed verdict upon several different grounds, among them, the following: (1) That there was no evidence that the goods were injured or destroyed through any negligence of the answering defendants; (2) that whatever presumption, if any, existed, to the effect that the goods in controversy were received by the Oregon Railroad & Navigation Company, was overcome by the testimony, which is uncontro-verted, that a shortage occurred at Salt Lake City, before the goods were delivered to either of these defendants; (3) that the plaintiff’s remedy is an action against the initial carrier; (4) that the goods were moved under the terms of a written limited liability bill of lading.</p>