Volume 65 — Oregon Reports

<p>Deeds—Fraud—Evidence.</p> <p>1. Evidence held to justify a finding that a deed was procured by fraud.</p> <p>[As to deeds void for fraud at law, see note in 93 Am. Dec. 596.]</p> <p>Principal and Agent—Fraud—Effect.</p> <p>2. Where a grantee obtained the benefit of a deed procured by his agent’s fraud practiced on the grantor, he was chargeable with the fraud whether he knew or participated in it or not, and the deed must be set aside as against him.</p> <p>[Liability of principal for agent’s fraud as dependent upon whether fraud committed for principal, see note in Ann. Cas. 1912C, 907.]</p> <p>Fraud—Evidence—Circumstantial Evidence.</p> <p>3. Fraud need not be shown by direct evidence, but may be established by circumstantial evidence and by inferences like any other fact.</p> <p>[As to what is sufficient proof of fraud, see note in 65 Am. Dee. 157.]</p> <p>Deeds—V alidity—Fraud—Effect.</p> <p>4. Where a grantee obtaining a conveyance through his fraud practiced on the grantor was induced by the fraud of a third person, who knew of the grantor’s rights, to convey the property to another chargeable with knowledge of the facts, the latter conveyance was tainted with fraud as against the original grantor, who could recover the premises so far as the same had not been passed to an innocent purchaser.</p> <p>Cancellation of Instruments — Jurisdiction of Subject Matter — Suit to Set Aside Deed.</p> <p>5. Tie court, in a suit to set aside conveyances of described real ebtate situated in tbe state on the ground of fraud, has no jurisdiction to order a party to the suit to convey to another party real estate in a sister state not in issue.</p> <p>Cancellation of Instruments — Cancellation of Deed — Belief.</p> <p>6. “Where a conveyance -was set aside on the ground of fraud practiced on the grantor exeept as to a tract conveyed by the fraudulent grantee to an innocent purchaser, the court must compel the grantee to account for the value of the tract sold and compel the grantor to account for the partial payments made by the grantee.</p> <p>[As to right of grantor to cancellation of deed on account of grantee's fraud, see note in Ann. Cas. 1912A, 405.]</p>

<p>Reformation of Instruments — Evidence—Interest of Plaintiff.</p> <p>1. In a suit to reform a deed executed by defendant so as to include lot 5 in section 21, where it was shown that lot 5 was subsequently conveyed to G., that G. prepared and filed a plat of a tract described as the “G. tract” in section 21, and subsequently eonveyed lots therein to plaintiffs -by reference to the plat, it was sufficiently shown that plaintiffs’ lots were in lot 5 to enable them to sue for a reformation of defendant’s deed, especially where defendant had himself conveyed land by reference to the plat of the G. tract.</p> <p>Estoppel — Description of Property- — Reference to Plat.</p> <p>2. A person who eonveys lots described by reference to a plat prepared and recorded by another is bound by such plat.</p> <p>Reformation- of Instruments — Mistake—Sufficiency of Evidence.</p> <p>3. In a suit to reform a deed, evidence held to show that a reference to the northwest quarter of the southwest quarter of a section was inserted by mistake 'for “northwest quarter of the southeast quarter.”</p> <p>[As to reformation of instruments on the ground of mistake, see notes in 30 Am. St. Rep. 621 and 117 Am. St. Rep. 227.]</p>

From Washington: James U. Campbell, Judge. Statement by Mr. Justice Eakin. This is an action by A. L. Kitcbin against the Oregon Nursery Company, Limited.

From Polk: Henry L. Benson, Judge. Statement by Mr. Justice Moore.

From Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an appeal from a judgment in favor of plaintiff, Harry L. Patton, against the Women of Woodcraft. The action is based on a benefit certificate of insurance issued on March 21, 1906, by the defendant to James J. Patton, a member of Mystic Circle No. 24, at Baker, Oregon. The organization consists of a Grand Circle, and local circles.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Eakin. This is an action in ejectment by P. A. Marquam, Jr., against W. H. Ray to recover lots 14, 15, and 16, block 13, Willamette addition to East Portland. Plaintiff is claiming title from Anna, Tommie, and Georgia Riley, and defendant claims title as a purchaser at a sheriff’s sale of the property for the collection of delinquent taxes.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Chief Justice McBride. This is an action by Charles L. Foster against the University Lumber and Shingle Company, a corporation, to recover for personal injuries sustained by plaintiff. The complaint alleges, in substance: That plaintiff was employed by defendant as a sawyer in its shingle-mill.

<p>Brokers — Commission—Evidence—Employment.</p> <p>1. Evidence, in an action for a real estate broker’s commission, held to show that plaintiff’s assignor was never employed by the defendant owner.</p> <p>Brokers — Employment Contract — Construction.</p> <p>2. The power of a real estate broker to grant an option for a limited time, and to extend such time, is in the nature of a personal trust, so as to negative an implied power to appoint a subagent for whose services the principal will be liable.</p> <p>[As to the effect on employment of optional or provisional contract by broker, see note in 139 Am. St. Bep. 237.]</p> <p>Trial — Examination of Witnesses — Answer not Responsive' — Motion to Strike.</p> <p>3. When a witness answers a question before an attorney can object, the proper practice is to move to strike out the answer, unless the court, in sustaining the objection, also directs the jury not to consider such answer.</p> <p>Brokers — Commission—Liability of Owner to Subagent.</p> <p>4. Where a real estate broker, merely under his general authority, employs a subagent to procure a purchaser, the principal is not thereby made liable for the subagent’s commission.</p> <p>[As to subagents and their relation to'the principal and to.the agent appointing them, see note in 50 Am. St. Bep. 110.]</p> <p>Vendor and Purchaser— Ofier to Sell Land — Time of the Essence.</p> <p>5. Time was of the essence of an offer to sell land to a certain purchaser, providing he accepted the proposal within a time stated.</p> <p>Brokers — Duration of Employment.</p> <p>6. Where a broker is employed to procure a purchaser within a fixed time, his agency, unless extended, terminates at the expiration of that time.</p> <p>Brokers — Commissions—Liability of Owner to Subagent.</p> <p>7. Where a subagent, employed by a real estate broker under his general authority, was directed by the broker to continue his efforts after an option, which he had procured a purchaser to take on the land, had been declared canceled, the principal was not liable for a commission on a sale by reason of the subagent’s acts pursuant to these directions.</p> <p>Brokers — Commissions—Liability of Owner to Subagent.</p> <p>8. That an owner consented to sell to a purchaser procured by a subagent of his broker, with knowledge that the purchaser had been so procured, did not constitute a ratification of the subagent’s employment or render him liable to the subagent for a commission; the provision of the statute of frauds (L. O. L., § 808), that an oral agreement employing an agent or broker to sell real estate for a commission shall.be void, requiring that a principal’s ratification of an oral agreement respecting a broker’s compensation be in writing.</p> <p>Words and Phrases — “Void.”</p> <p>• 9. Where a statute declares a particular act to be void, and its performance, without authority,’is denounced as a misdemeanor, for which a penalty is prescribed, the word “void,” as thus used, is occasionally held to mean what its technical sense would imply and not to mean “voidable.”</p> <p>Trial — Taking Case from Jury — Motion for Nonsuit or Directed Verdict.</p> <p>10. Motions for a judgment of nonsuit and for a directed verdict in defendant’s favor are tantamount to demurrers to the evidence, and the same rule for determining the sufficiency of the testimony is applicable to each.</p>

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. About March 30,1908, the Beeman-Spaulding-Woodward Company, hereinafter called the corporation, applied to the Hibernia Savings Bank, to be called the bank, for a loan of $2,500. The bank officers drew up a note of that date, of which here follows a copy: “$2,500.

Prom Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. This is an action at law by Peter Wagenaar against the Beeman-Woodward Company, a corporation, P. P. Olodius, Julius Beeman and Milton G. Smith, to recover the amount due on a promissory note executed by the defendants, of which here follows a copy: “$3000.

Prom Clackamas: James U. Campbell, Judge. Statement by Mr. Chief Justice McBride. This is a suit by J. P. Lovelace against Alexander Meyer, C. 0 ’Donovan and Katherine M. Dwyer to foreclose a mortgage given to secure a promissory note for $1,250, with interest at 6 per cent per annum.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit by N. Day and C. H. Wheeler against the City of Salem, a municipal corporation, Charles Elgin, recorder, Ira Hamilton, city marshal of said City of Salem, Fred Rice, E. D. Allen, Harry P. Minto, respectively assessor, county clerk and sheriff of Marion County, Oregon, to enjoin the collection of taxes.

From Tillamook: William Galloway, Judge. Statement by Me. Chief Justice McBride.

<p>Vendor and Purchaser — Option of Sale — Rescission—Contract—Mutual Mistake.</p> <p>1. Where complainant received from defendants an option for the sale of certain selections of unsurveyed public land, both parties believing that the descriptions when surveyed would contain 400' acres, and by reason of the fact that the land was subsequently included in fractional townships the descriptions contained only 224.41. acres, complainant was entitled to rescission because of a material deficiency in the quantity of land arising from a mutual mistake of the parties, though there was no fraud.</p> <p>[As to options to purchase, see note in 118 Am. St. Rep. 597.]</p> <p>Vendor and Purchaser — Contract—Rescission—Mistake.</p> <p>2. Innocent and mutual mistake alone is sufficient to justify rescission of a contract for the sale of land when the mistake is so material that, if the truth had been known to the parties, the agreement would not have been made.</p> <p>[As to rescission for negligent mistake of one party, see note in Ann. Cas. 1913A, 432.]</p> <p>Cancellation of Instruments — Mutual Mistake.</p> <p>3. The party against whom a contract for the sale of real property, made under mutual mistake of material facts, will not be specifically enforced, is generally entitled to rescind.</p>

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice Moore. This is an action by S. B. Stewart against George Will to recover a broker’s commission for the alleged negotiation of the sale of real property.

<p>Insurance — Life Insurance Companies — “Cash Capital.”</p> <p>A resolution of the stockholders and directors of a life insurance company which declares that the assets of the company shall constitute its capital set apart as a basis of credit for the policy-holders and creditors and not subject to withdrawal converts the assets into cash capital within Section 4610, L. O. L., providing that no insurance corporation shall be permitted to do business until it shall have a paid-up cash capital equal to a specified sum, and the assets cannot be withdrawn or diverted by the corporation.</p>

<p>Appeal and Error — Harmless Error — Ruling on Nonsuit,</p> <p>1. Though plaintiff, when he rested, had not offered sufficient proof to warrant submission of the cause, a ruling denying a nonsuit will not be disturbed where such failure was supplied by evidence subsequently introduced.</p> <p>Appeal and Error — Findings—Conflicting Evidence.</p> <p>2. The -Supreme Court will not consider any conflict in the evidence; that being settled by the verdict of the jury.</p> <p>Evidence — Admissions.</p> <p>3. A pleading served in another action, if material, may be used in evidence, though the party offering such evidence was not a party to the action in whieh the pleading was served.</p> <p>[As to admissibility against pleader of pleading superseded by amended pleading, see note in Ann. Cas. 1913A, 1132.]</p> <p>Evidence — Admissions—Judicial Proceedings.</p> <p>4. In an action against defendants, as partners, to recover for advertising, plaintiff offered in evidence a complaint filed by the defendants, as partners under the same firm name, against another person, which alleged that the complaining partners “were and now are conducting a general real estate and brokerage business” under the name and style, etc., and sought to recover commissions for the sale of realty under an agreement made in 1908, the complaint being verified by one of the partners in February, 1911. Held, that the complaint was admissible in evidence in the present action on the question of whether defendants were partners between December 31, 1908, and August 1, 1910.</p>

<p>Appeal and Error — Trial by Court — Findings—Evidence.</p> <p>1. On appeal, in an .action at law tried before the court without a jury, the Supreme Court will examine the evidence only to ascertain if there ‘is any competent evidence to support the findings.</p> <p>Appeal and Error — Findings—Evidence.</p> <p>2. Where, in an action for the price of nursery stock sold under a contract which did not fix the price of plum trees, various lists of priees of trees of exactly the same size and similarly named were put in evidence as having been furnished with the stock, a finding fixing the price of the plum trees at the same rate as mentioned in the contract for prune trees could not be disturbed on appeal, on the ground that it was sustained by no evidence.</p> <p>Sales- — Contract—Delay in Making Payments- — Forfeiture of Payments.</p> <p>3. A contract for the sale of nursery trees provided that the buyer should, in the fall, advance so much per thousand buds, and in,the next spring advance a like amount for grafting all trees not previously budded, the amount so paid “to be deducted from the bill at the last delivery of stock,” and also provided that if the payments therein provided for were not made payments theretofore made could be forfeited. Held, that, the contract being an entirety, a mere delay by the buyer in making payments, without any conduct indicating an intent to abandon the contract, did not authorize the seller to declare a forfeiture of the advance payments and to refuse to credit such payments on the account for the trees delivered.</p> <p>[As to the rate that a rescission of sale by buyer must be in toto, see note in Ann. Gas. 1912A, 660.]</p>

From Multnomah: Robert G. Morrow, Judge. Statement by Mr. Justice Burnett. This is a suit by John Deckenbach, Adam Deckenbach, Jacob Deckenbach, George Deckenbach and Catherine D. Leinbart against Johanna Deckenbacb to set aside a deed and to remove a cloud from plaintiffs ’ title.

From Hood River: William L. Bradshaw, Judge. Statement by Mr. Justice Burnett. This is a suit by L. D. Firebaugb against Leon M. Bentley and Jennie C. Bentley to set aside a deed on the ground of a mutual mistake. On April 16, 1909, tbe defendants conveyed to the plaintiff the northwest quarter of the southeast quarter and the northeast quarter of the southwest quarter of section 16, township 2 north, range 11 east, Willamette meridian, containing 80 acres.

From Multnomah: Calvin U. Gantenbein, Judge. The defendant, E. E. Wedemeyer, was convicted of the crime against nature, and from the judgment and sentence imposed he appeals.

From Malheur: Dalton Biggs, Judge. Statement by Mr. Chief Justice McBride. This is an action by J. J. Gleason against T. A. Den-son and Charles C. Cramer upon a promissory note. The complaint alleged that on April 11, 1912, the defendants executed in favor of one Y. S. Green, or order, a promissory note for the sum of $225, with interest at the rate of 10 per cent per annum from date until paid, with provision for reasonable attorneys’ fees in case of suit.

<p>Reformation of Instruments — Evidence—Sufficiency.</p> <p>In a suit to reform a mortgage so as to include in tlie description certain omitted property, evidence held that the mortgage was intended to include a one-third interest of the mortgagor in a power company, that was not embraced in the instrument.</p> <p>[As to reformation of mortgages and grounds therefor, see note in 65 Am. St. Rep. 617.]</p>

From Morrow: David R. Parker, Judge. Statement by Mr. Justice Burnett. This is a suit by Brace B. Kelley against S. P. Devin, surviving executor of the last will and testament of Norman A. Kelley, deceased, Delia E. Southwortb, J. Griggs Kelley and Laura Weir, to enforce the specific performance of a contract.

<p>Municipal Corporations — Initiative and Referendum — Ordinance— Construction—“Immediately.”</p> <p>_ 1. A -city ordinance providing for initiative and referendum petitions declared that when a petition is filed the police judge must compare the signatures with the handwriting of the electors on the registration books and determine whether the petitioners are entitled to have the proposed measure submitted, and provided that “immediately” on the filing of any petition, signed by the required number of voters the auditor and police judge should cause a notice thereof to be given by publication in a daily newspaper. An initiative petition was filed October 31st, and the publication of the notice was not commenced until November 5th. A Sunday intervened. Held, that the notice was published “immediately,” for the word must be so construed as to give effect to each provision of the ordinance.</p> <p>Municipal Corporations—Initiative Petitions—Notice—Publication— Sufficiency.</p> <p>2. The purpose of a provision in an ordinance providing for initiative and referendum that the notice of the filing of an initiative petition shall be given by publication, together with a brief statement of the tenor and effect of the petition, is to furnish information of the measure to be submitted, and the publication of the petition in full is a sufficient compliance with the ordinance.</p> <p>Municipal Corporations—Initiative Petitions—Notice—Publication—Time of Publication.</p> <p>3. Where the notice of the filing of an initiative petition was published from November 5th to November 15th, inclusive, in a newspaper published daily, except on Monday, and on Monday, November 11th, an extra edition was printed containing the notice, which issue was distributed to the subscribers, there was a compliance with the ordinance requiring the publication of the notiee in a newspaper for eight successive days.</p> <p>Municipal Corporations—Public Improvements—Assessment—Nature of Improvement.</p> <p>4. Where a large part of the business section of a city was built over mud flats, so that the buildings and streets rested on piling driven into the mud- flats, and great quantities of filth and sewage constantly accumulated, tainting the atmosphere with loathsome odors, causing an unsanitary condition, the city could construct bulkheads at the cost of all the property of the city, and fill in tide lands at the cost of the property benefited, each owner being equally responsible for the unsanitary condition.</p> <p>[As to the validity of municipal laws and regulations in regard to health, see note in 47 Am. St. Rep. 541.]</p> <p>[As to the purposes for whieh a municipality may levy assessments and taxes, see note in 16 Am. St. Rep. 365.]</p> <p>Municipal Corporations — Nuisance—Ordinance.</p> <p>5. The declaration by a municipal legislative body that a particular use of land creates a nuisance is not conclusive,- but the question is subject to judicial inquiry when properly, brought before the courts.</p> <p>Municipal Corporations — Nuisance—Ordinance.</p> <p>6. The adoption by the voters of a city, through the initiative power, of .an amendment to the city charter providing for the reclaiming of tide lands at the cost of the property benefited thereby is a declaration of the law-making body of the municipality that the condition of the tide flats constitutes a nuisance, and when sustained by evidence is valid.</p> <p>Constitutional Law — Police Power — Reclamation of Property.</p> <p>7. All property is held by the owner subject to the reasonable exercise of the police power exercised by the state or by a municipal corporation so to regulate the use of property as not to impair the public health.</p> <p>[As to police power and the fourteenth amendment, see note in 25 Am. St. Eep. 882, 888.]</p> <p>Municipal Corporations — Police Power — Reclamation Districts.</p> <p>8. It is within the police power of the state to authorize by statute a municipal corporation to fill lots within its limits so as to prevent stagnant water or other nuisance thereon, and to provide for the expense of the improvement against the lots so filled.</p> <p>Constitutional Law — Municipal Corporations — Local Improvements— Reclamation of Lowlands — Assessments.</p> <p>9-. A provision in a city charter for the reclamation of tide lands at the cost of the property benefited is not in conflict with the fourteenth amendment to the federal Constitution, where there is ample provision for the giving of notice before the amount of assessment against any property becomes fixed.</p>

From Marion: Percy R. Kelly, Judge. Statement by Mr. Justice Eakin. This is an action by A. B. Spencer against Legene S. Barnes upon a judgment of a sister state. Plaintiff recovered judgment in the Superior Court of Los Angeles County, California, against the defendant for the sum of $71,625, on thé 29th day of July, 1912. Thereafter defendant duly filed a motion to set aside such judgment, and for a new trial.

From Coos: James W. Hamilton, Judge. Statement by Mr. Justice Burnett. This is a suit by the Merchant Land Company, a corporation, against J. H. Barbour to determine an adverse claim to certain lands in Coos County, Oregon.

From Wallowa: John W. Knowles, Judge. Statement by Mr. Chief Justice McBride.

From Baker: William Smith, Judge. This is a suit by the Co-operative Copper & G-old Mining Company, a corporation, against Charles H. Law. The facts are fully set forth in the opinion.

<p>Dedication—Acts Constituting—Intention.</p> <p>1. An intention of the owner, as evidenced by Ms acts and the acts which he permits or encourages, is controlling on the issue of dedication.</p> <p>Dedication—Highways—Acts Constituting—Presumptions.</p> <p>2. A dedication of land alongside a highway and used by the public, but so situated as to indicate that it does not form a part of the highway, cannot be deemed dedicated without strong evidence of an intent on the part of the owner to dedicate.</p> <p>Dedication—Highways—Parol Dedication.</p> <p>3. A dedication of land for a highway by parol must be evidenced by some act evincing a clear intent to dedicate.</p> <p>Dedication — Highways—Parol Dedication.</p> <p>4. The acts and declarations of an owner do not establish a dedication of land for a highway unless they are deliberate, unequivocal, and. decisive, manifesting a positive intent to dedicate.</p> <p>[As to what amounts to a dedication of highway, see note in 57 Am. St. Rep. 749.]</p> <p>Dedication — Highways—Evidence.</p> <p>5. Evidence held not to show a dedication of land for a public highway.</p> <p>Highways — -Prescription.</p> <p>6. A highway cannot be established by prescription unless there has been an actual adverse use, general, uninterrupted for the statutory period under a claim of right, and a mere user of a highway unaccompanied by acts showing a use under a claim of right is insufficient.</p> <p>Highways — -Prescription—Evidence.</p> <p>7. Where the use of land by those traveling pn it was not under a claim of right adverse to the owner, who merely permitted travel for convenience, the use did not establish a highway by prescription, though continuing for the statutory period.</p> <p>[As to whether adverse possession of highway creates title by prescription, see notes in 32 Am. Dee. 719; 14 Am. St. Eep. 278; 76 Am. St. Eep. 492.]</p> <p>Highways — Prescription—Receipt of Taxes.</p> <p>8. The receipt by a city of taxes paid by the owner of land is inconsistent with the claim of the city to hold the land by prescription for a public highway.</p> <p>[As to the essentials of adverse possession, see notes in 28 Am. St. Eep. 158; 88 Am. St. Eep. 701.]</p> <p>Dedication — Interests Conveyed — Eight of Way.</p> <p>9. A conveyance of a tract with a right of way over a tract retained by the grantor -creates a right of way appurtenant to the tract conveyed which passes by a subsequent conveyance of the tract without specific mention.</p> <p>[As to public or private right of way over land conveyed in the aspect of encumbrance, see note in 125 Am. St. Eep. 454.]</p>

<p>Wills—“Testamentary Capacity.”</p> <p>1. One in such mental condition as to understand what he is doing, recall what property he owns, and intelligently select the object of his bounty, possesses testamentary capacity.</p> <p>[As to testamentary capacity as contrasted with marriage capacity, see note in Ann. Cas. 1913B, 1239.]</p> <p>Wills—Probate—Undue Influence.</p> <p>2. A will executed by one possessing sufficient capacity to understand what he is doing, recall what property he owns, and intelligently select the objects of his bounty, is properly admitted to probate where made in accordance with an often-expressed design and with no evidence of undue influence.</p> <p>[As to undue influence, see note in 31 Am. St. Bep. 670.]</p>

From Harney: Dalton Biggs, Judge. Statement by Mr. Justice Eakin. The defendant, John M. Taylor, was indicted for the crime of murder in the first degree for the killing of Albert H. Perry and Robert Settlemyer on December 21, 1911, and upon trial was convicted of said crime. Whereupon judgment of the death penalty was rendered. Thereafter, on December 12, 1912, the governor of the State of Oregon commuted the said sentence to life imprisonment.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. The plaintiff, H. J. Bellarts, a voter and taxpayer residing in the city of Portland, Multnomah County, Oregon, makes defendants of T. J. Cleeton, county judge, the .commissioners and county clerk of the county, and the auditor of the city.

Statement by Mr. Chief Justice McBride. This is an original proceeding in mandamus by Abigail Scott Duniway and others against the City of Portland to test the validity of the recent revision of the city charter of Portland, substituting a commission form of government for the present government by mayor, city council, etc., the present charter being similar to the usual municipal charter.

<p>Criminal Law — Appeal—Bill of Exceptions.</p> <p>1. Errors occurring at the trial cannot be reviewed in the absence of a bill of exceptions.</p> <p>Criminal Law-Appeal — Satisfaction of Judgment.</p> <p>2. In view of Section 1371, L. O. L., providing that a felony is a crime whieh is punishable by imprisonment in the penitentiary, and that, when such a crime is also punishable by a fine or imprisonment in a county jail, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the penitentiary, where accused was fined and also committed to the penitentiary, but was paroled if he paid the fine, which he did, the payment was not voluntary and satisfied the judgment only pro tanto, the judgment as to .the imprisonment still standing, and he could appeal from the judgment.</p> <p>[As to which judgments may be appealed from, see note in 20 Am. St. Bep. 178.]</p> <p>Criminal Law — Sentence—Fine and Imprisonment.</p> <p>■3. Under Section 1950, L. O. L., providing for an alternative judgment of imprisonment in the penitentiary, in the county jail, or by a .fine, the court has no jurisdiction to impose a fine and also sentence to the penitentiary.</p> <p>[As to invalidity of sentence of fine and imprisonment where the law imposes these punishments as alternatives, see note in 55 Am. St. Rep. 268.]</p> <p>Criminal Law — Appeal—Objections—Jurisdictions.</p> <p>4. Objections going to the jurisdiction of the court may be first raised in the Appellate Court.</p>

From Yamhill: Percy R. Kelly, Judge. This is an action by C. F. Daniels and W. J. Bishop, partners in business under the firm name and style of Daniels & Bishop, against M. L. Morris and E. L. Morris. There was a judgment for plaintiffs and defendants appeal.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Bean. This is an action by M. H. Triphonoff against J. W. Sweeney, S. M. Blumaner, and Isaac Blumaner, partners doing business under the firm name and style of the J. W. Sweeney Construction Company, and J. W. Sweeney, S..M. Blumaner and Isaac Blumaner, to recover money. The cause was tried before a jury, and a verdict found in favor of plaintiff. From a judgment rendered thereon, defendants appeal.

From Multnomah: William N. Gatens, Judge. This is a suit for divorce by Beatrice L. Gadsby against Walter M. Gadsby. From a decree dismissing the amended complaint of plaintiff and the cross-complaint of defendant, the plaintiff appeals.

<p>Deeds — Description—Certainty—-Reservation.</p> <p>1. Where a deed excepts land described as one acre lying in the northeast corner of a lot, and the corner was round and irregular, so that it was possible to lay off an acre with the base given in a half dozen different ways, the exception was too indefinite to include any particular land, unless the parties by their subsequent conduct have identified it.</p> <p>[As to description as construed by subsequent acts of the parties, see note in 35 Am. Dec. 373.]</p> <p>Quieting Title — Necessary Parties.</p> <p>2. In a suit to quiet title to a particular block in a large lot of land, a railroad which claimed no interest in that block is not a proper party, even though the defendant had claims to land in the lot which might conflict with those of the railway company.</p>

From Gilliam: David R. Parker, Judge. The defendant, Robert Morgan, was convicted of murder in the first degree, and he appeals. Submitted on briefs under the proviso of Rule 18 of the Supreme Court: 56 Or. 226 (117 Pac. xi).

From Malheur: Dalton Biggs, Judge. Statement by Mr. Justice Eakin. On June 25, 1908, the defendant C. W. Thebaud made, executed and delivered to the First Bank of Yale, afterward reorganized as the United States National Bank of Vale, the plaintiff herein, his promissory note in the sum of $1,250, subsequently assigned to the plaintiff.

<p>Reformation of Instruments — Grounds—Pleadings—Sufficiency.</p> <p>1. The complaint, in a suit to reform an instrument on the ground of mistake of facts, must distinctly allege what the original agreement was, or point out clearly wherein there was a misunderstanding, and that the mistake was mutual and did not arise from gross negligence of plaintiff, or that his misconception originated in the fraud of defendant.</p> <p>[As to pleadings, etc., in suits to reform instruments, see note in 65 Am. St. Rep. 496.]</p> <p>Cancellation of Instruments — Grounds—Mutual Mistake — Pleading— Sufficiency.</p> <p>2. A complaint in a suit to cancel a lease, whieh alleges that it was the opinion of the parties thereto that a prior lease would expire April 1, 1912, while in fact it did not expire until April 1, 1913, but which does not allege that the termination of the prior lease could not have been discovered by reasonable diligence, or that the parties intended to make the new term begin with the ending of the prior term, does not state a cause of action on the theory of mutual mistake, under the rule that to entitle one to relief on the ground of mutual mistake it must appear that the fact misapprehended could not have been discovered by the exercise of reasonable diligence.</p> <p>[As to mistakes for whieh an instrument may be reformed or canceled, see note in 117 Am. St. Rep. 228.]</p> <p>Cancellation of Instruments — Grounds—Incapacity of Parties.</p> <p>3. A complaint in a suit to cancel a lease executed by husband and wife, which alleges that the wife was at the time of the making of the lease in failing health and memory, and that the husband was unable to read and write, does not state a cause of action on the theory of incapacity of the lessors to make a lease.</p> <p>Pleading — Mutual Mistake — Complaint—Conclusion of Law.</p> <p>4. An avennent in the complaint, in a suit to cancel a lease on the ground of mutual mistake, that except for the mutual mistake the lessors would not have executed the lease is but a statement of a conclusion of law, and is insufficient for any purpose.</p>

From Multnomah: Calvin U. Gantenbein, Judge, Statement by Mr. Justice McNaby. This is a suit by Thomas Jones against Anton Teller to enjoin the defendant from erecting a dwelling-house on ground which the plaintiff claims has been dedicated to the use of the public as a street.

From Multnomah.: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Ramsey. This is an action by John Prement against H. W. Wells, and J. B. Laber, a partnership doing business under the firm name and style of Wells & Laber Lumber Company to recover the sum of $10,000 as damages alleged to have been sustained by him for personal injury which he claims to have suffered when working for the appellants at their mill on September 3, 1910.

From Multnomah: Bobert G. Morrow, Judge. Statement by Mr. Justice Bean. Held: under paragraph 12 of the head-notes, that the City of Portland did not need the consent of the State of Oregon to build the Burnside bridge within its own limits.

Prom Benton: James W. Hamilton, Judge. Statement Per Curiam. This is an action by Frank Plinsky against J. M. Nolan and Thomas Nolan to recover damages for breach of an alleged contract to employ him; the plaintiff obtained a verdict and judgment for $135, which the defendants moved the court to set aside and to grant a new trial.

Decided May 28, 1912. On Motion to Dismiss Appeal. (123 Pac. 1070.) From Multnomah: Calvin U. (xantenbein, Judge. Me. Justice Bean delivered the opinion of the court. The defendant filed a motion to dismiss this appeal upon the ground that the appellant did not file his transcript or abstract of record within 30 days from the time of perfecting the appeal. This is not, under all circumstances, a cause of dismissal of an appeal.

<p>Landlord and Tenant — Lease—Bight to Terminate.</p> <p>1. Where the right to terminate a lease on 60 days’ notice reserved by the lessor could only be exercised in case he sold or leased for a term of years, it constituted a valid lease.</p> <p>Contracts — Performance—Satisfaction of Party.</p> <p>2. A contract binding a party to deliver to the adverse party á lease of a storeroom in the retail district of a city for a retail store, the lease to be satisfactory to the adverse party, is performed where the party secures an unexpired lease of a store by assignment with the consent of the lessor and tenders the same to the adverse party, who is satisfied with the location and the building, and he may not arbitrarily or unreasonably declare that the lease is not to his satisfaction.</p>

<p>Pleading — Judgment on Pleadings.</p> <p>1. Judgment on the pleadings on motion will not be rendered, where the answer sets up an issuable defense.</p> <p>Judgment — Pleadings to Support — Attorneys’ Fees.</p> <p>2. Plaintiff cannot be allowed attorneys’ fees, where his cross-bill to enjoin defendant from prosecuting an action at law upon promissory notes did not contain any allegations as to attorneys’ fees, and there was no proof thereof, plaintiff only being entitled to the attorneys’ fees allowed by Section 561, L. O. Ir., given to the prevailing party as costs.</p> <p>Appeal and Error — Review—Discretion—Costs.</p> <p>3. Taxation of costs and' disbursements in equitable proceedings rests in the court’s sound discretion, and is only reviewable upon abuse thereof.</p> <p>Corporations — Subscriptions—Actions—Conditions Precedent.</p> <p>4. Where a contract subscribing for corporate stoek provided that the price should be paid on or before a specified day, no demand for payment of subscription was necessary as a condition to sue to recover it, the subscriber being bound to pay on demand, or on the day specified without demand.</p> <p>[As to the liability to corporations of subscribers to stock, see note in 93 Am. St. Rep. 349.]</p> <p>[As to the statute of limitations in action against stockholders, see note in 96 Am. St. Rep. 972.]</p> <p>[As to when a subscriber to stock becomes a stockholder, see note in Ann. Cas. 1913C, 418.]</p> <p>Corporations — Stock Subscription — Interest.</p> <p>5. Section 6028, L. O. L., providing that the rate of interest shall be 6 per centum per annum on all moneys after the same became due, applies to balances due on subscriptions to corporate stock.</p>

<p>Contempt — Appeal—Stay—Bond.</p> <p>1. Execution of order of imprisonment in contempt proceedings is stayed by the service, and filing of notice of appeal and an undertaking conditioned for satisfying the same if affirmed, Section 684, L. O. L., authorizing an appeal in such a proceeding in like manner and with like effect as from a judgment in an action.</p> <p>Mandamus — Appeal—Stay—Bond—“Judgment.”</p> <p>2. The determination in mandamus requiring the defendant therein to execute a contract and approve a bond is, by provision of Section 601, L. O. L., a judgment, and not a decree, within Section 551, as to whether anything further than .giving an undertaking on appeal is necessary to stay proceedings.</p> <p>Habeas Corpus — Discharge—Excess of Jurisdiction — Contempt Proceeding.</p> <p>3. Proceedings in mandamus being under Section 552, L. O. L., stayed by the perfecting of an appeal therein with an undertaking for the appeal only, the eourt exceeds its jurisdiction within Section 642, as to discharge from custody on habeas corpus, by proceeding, pending the appeal, to enforce obedience to the peremptory writ of mandamus by contempt proceedings. •</p>

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action by J. A. Ramsdell against C. D. Ramsdell and S. W. Anderson.

<p>Damages — Penalty—Construction of Contract — Provision for Interest.</p> <p>1. Where a contract for the purchase of real estate on installments provides for the payment of interest on the installments at 8 per eent, but remits the interest in ease the installments are all paid promptly at maturity, the provision for the payment of interest is not a penalty, and is enforceable both at law and in equity, and the purchasers, who were one or two days late in the payment of some of the installments, are not entitled to a specific performance of the contract until the interest is paid.</p> <p>[As to agreements purporting to liquidate damages, see notes in 108 Am. St. Rep. 45; Ann. Cas. 1912C, 1021.]</p> <p>Words and Phrases — “Penalty.”</p> <p>2. A “penalty” is an agreement to pay a greater sum to secure the payment of a less sum; it is conditional, and can- be avoided by the payment of the less sum before the contingency agreed upon shall happen.</p>

From Linn: William Galloway, Judge. Statement by Mr. Justice Ramsey. This is a suit by E. O. Churchill against the City of Albany, F; E. Van Tassel, city recorder, and Ellis Daughtry, chief of police, and is brought for the purpose of enjoining the defendants from enforcing a certain ordinance of the City of Albany, for the alleged reason that the ordinance is unreasonable, discriminatory, class legislation, and unconstitutional.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Chief Justice McBride. Held: or at least admitted testimony tending to show, that said company then had not over 40,000,000 feet of timber, and the court refused to instruct the jury that the mere fact, if they so found it, that said company did not own land on which there was 200,000,000 feet of timber at the date the contract was executed would not constitute…

<p>Time—Computation—Time for Filing Transcript.</p> <p>1. Where an appeal was perfected on October 10th, and appellants were required to file the transcript within 30 days therefrom, a transcript filed on November 11th, being Monday following Sunday the 10th, is filed in time, Section 531, L. O. L., providing that the time within which an act prescribed by statute is to be done shall be computed by excluding the first day and including the last day unless it falls on Sunday, in which case the last day is also to be excluded.</p> <p>[As to rules for computation of time, see note in 78 Am. St. Kep. 872.]</p> <p>[As to inclusion of day of accrual of action in computing limitations, see note in Ann. Cas. 1913D, 1068.]</p> <p>Appeal and Error—Time for Serving Transcript—Statutes.</p> <p>2. Act of February 16, 1891 (Laws 1891, p. 40), amending act of February 15, 1889 (Laws 1889, p. 4), provided in Section 3 that transcripts on appeal from any 'county lying east of the Cascade Mountains, except Crook County and others, should be forwarded to the clerk of the Supreme Court at Pendleton, and appeals from the enumerated counties, unless otherwise stipulated by the parties, should be determined at the next succeeding term of the Supreme Court after the appeal was perfected, and should be forwarded either to Salem or Pendleton, as the case might be, by the first term of such court. Act of February 18, 1899 (Laws 1899, p. 167), repealed Section 2 of act of February 15, 1889, by providing for the selection of but one clerk of the Supreme Court, who was required to appoint two deputies, one of them to reside at Pendleton, but this act did not alter the time for the filing of the transcript. Act of February 22, 1899 (Laws 1899, p. 229; L. O. L., § 554), provides that, upon the perfection of a-n appeal, the appellant shall within 30 days thereafter file with'the clerk of the appellate court a transcript or abstract. Held, that in view of the statute last quoted, there being only one clerk, it must be construed as a general enactment applicable to the entire state, and operating as an implied repeal of act of February 16, 1891.</p> <p>Waters and Watercourses — Right to Divert Waters — Issues.</p> <p>3. The court, in a suit involving the right to divert the waters of a river, need only determine the right as between the parties claiming as appropriators, without having made any actual appropriation of the water, and it will not determine the extent of the right that may be obtained.</p> <p>[As to what constitutes an appropriation of water, see note 60 Am. St. Rep. 799.]</p> <p>[As to priority of right to use of water of irrigation company, see note in Ann. Cas. 1913D, 625.]</p> <p>Waters and Watercourses — Appropriation of Surplus Waters — Infringement of Existing Rights.</p> <p>4. The statutes providing for the manner of appropriating the surplus waters of the state do not permit any infringement of any right to waters obtained before their enactment.</p> <p>Waters and Watercourses — Appropriation — “Abandonment” — Acts Constituting.</p> <p>5. An “abandonment,” as applied to water appropriation, is an intentional relinquishment of a known right, ascertained from the conduct and declaration of the appropriator.</p> <p>Waters and Watercourses — Appropriation—Construction Work — Diligence.</p> <p>6. An appropriator of water must prosecute the construction work with reasonable diligence, as determined from the facts of the case, and diligence requires such consistency of purpose or labor as is usual with persons engaged in like enterprises.</p> <p>Waters and Watercourses — Appropriation—Abandonment.</p> <p>7. Under Section 6571, L. O. L., declaring that the right to appropriate water may be lost by abandonment, and providing that if any person, company, or corporation constructing a ditch shall neglect to use the same for two years at any time, the appropriation shall be deemed abandoned, and the water revert to the public subject to other appropriations in order of priority, an appropriator’s right may be extinguished by any act showing an intention to surrender or abandon the right, after which, if the person having the right ceases its use for the stipulated period, his interest is lost.</p> <p>Waters and Watercourses — Appropriation of Water — Ownership of Banks of Streams — Statutory Provisions.</p> <p>8; Though it is not absolutely necessary that a corporation appropriating water from a stream is the sole owner of the banks from the point of diversion to the mouth of the canal, yet, in view of Section 6552, L. O. L., providing that all persons, firms, and corporations having title or possessory right to any mineral or other land shall be entitled to the use of the water of any lake or running stream to furnish electrical power for any purpose, the claim of one owning riparian land, intended to be used in connection with an appropriation of water and the development of power to the extent that the land may be so utilized, is strengthened.</p> <p>Waters and Watercourses — Appropriation—Construction Work — Delay —“Unavoidable Casualty.”</p> <p>9. Where a corporation, posting and filing notice of appropriation of water from a river for irrigation and power purposes, located its canal as first surveyed over the National Forest Reserve for a short distance, and endeavored in good faith to obtain a right of way for the canal, and after the expenditure of money to obtain a permit it changed the location of the canal where less power could be obtained, and thereby avoided the difficulty of obtaining a right of way from the federal government, and it engaged in good faith in the construction of its works, it acquired a right to water by appropriation, within Section 6595, Subdivision 3, L. O. L., and the delay in the construction of its canal was due to “unavoidable casualty,” within Section 6560.</p>

From Wallowa: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is an action by Aaron Wade against the Amalgamated Sugar Company, a private corporation. The facts are as follows: The plaintiff leased his lands to the defendant. In the contract of leasing the defendant agreed that it would work the land in a husbandlike manner and keep the same reasonably free and clear from weeds.

From Grant: Dalton Biggs, Judge. Statement by Mr. Justice Burnett. This is an action by P. J. Finlon against the National Union Fire Insurance Company, a corporation.

From Union: John W. Knowles, Judge. Statement by Mr. Justice Burnett. This is an action by Althea Gr. Walk against C. R. Hibberd. The substance of the complaint is that about October 27, 1911, this plaintiff entered into a contract and agreed with the defendant that in consideration that the plaintiff and her husband, Gr.

<p>Municipal Corporations — Existence—Admission by Suing as Such.</p> <p>1. Where, in a proceeding in the nature of quo warranto to test the legality of the organization of a port as a municipal corporation, it was described, not as a corporation, but as a pretended corporation, and the persons claiming to be officers and joined as defendants were not described as officers, but as individuals, the filing of the complaint against the pretended corporation by name was not an admission of the existence of the corporation.</p> <p>Municipal Corporations — Establishment—Election Notice — Description of Boundaries.</p> <p>2. Where the notice of an election for the organization of a proposed port omitted one call from the description of the boundary, thus leaving a hiatus, the proceeding was void, there being no way in which the misdescription could be corrected or reformed.</p> <p>Municipal Corporations — Establishment—Boundaries of Corporation.</p> <p>3. A proceeding to organize a proposed port was void where the boundaries of the proposed port included a part of the watersheds of two other bays so extensive that it passed beyond a mere technical deviation from the statute, and became a matter of substance.</p> <p>Elections — Conduct of Elections — Proof of Qualifications.</p> <p>4. Under Section 3449, L. O. L., prescribing a form to be subscribed by nonregistered persons claiming the right to vote at an election, in which they are required to set forth particularly their plaee of residence and length of residence in the state, and which the judge may require to be attested by not more than six witnesses, who must swear that they are each personally acquainted with the proposed voter and his residence as stated by him, such subscribing witnesses are not qualified as such, unless they have actual personal knowledge of the voter’s residence and actual personal acquaintance with him, and they cannot base their affidavit on the statements of the proposed voter or of other persons.</p>

<p>Waters and Watercourses — Water Rights — Judgments—Effect.</p> <p>1. Under Sections 756, 6595, L. O. L., respectively providing that a judgment or decree is, as to the matter determined, conclusive between the parties and their successors in interest, and that the state board of control cannot impair relative priorities to the use of water among parties to any decree rendered prior to the taking effect of the water code, a decree fixing the priority of the parties to waters for irrigation, entered prior to the taking effect of the water code, is conclusive, not only on the parties, but on the successors in interest.</p> <p>Judgment — Attack—Collateral Attack.</p> <p>2. A decree of a court of general jurisdiction is unimpeachable in a collateral proceeding.</p> <p>Waters and Watercourses — Appropriations—Rights.</p> <p>3. A prior appropriation does not confer upon the appropriator an absolute right to the body of water diverted from the stream and he cannot allow it to run to waste, and prevent others from using it, when it is not necessary for the purposes of his appropriation.</p> <p>[As to the constitutionality of legislation forbidding the waste of water, natural gas, and the like, see note in hnn. Cas. 1912C, 165.]</p> <p>Waters and Watercourses — Appropriation^-Decree—Effect.</p> <p>4. A decree adjudging contestee entitled to so many inches of water under his appropriation for irrigation purposes will not be construed as entitling him absolutely to that amount of water, but only permits the taking of the amount necessary for the purposes of his appropriation, and he cannot, if it is unnecessary for the irrigation of his own land, divert it to irrigate the land of another.</p> <p>Waters and Watercourses — Appropriation—Decree—Effect.</p> <p>5. A personal decree, enjoining one of the contestants and the other’s grantor from interfering with the contestee’s appropriation of water for irrigation, is conclusive only as to contestee’s right to appropriate a sufficient amount of water to irrigate his land, but is not a final adjudication as to the priorities between contestee’s lands and those of the lands of the defendants in that proceeding.</p>

From. Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Fred Dorn against the Clarke-Woodward Drug Company, a corporation, instituted under the statute providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, etc., enacted by the initiative process at the November election of 1910.

<p>Fraudulent Conveyances—Pleading-—Elements of “Creditor’s Bill” Stated.</p> <p>1. Where defendants in an action to quiet title denied that plaintiff was owner, charging that the conveyance to him was without consideration and made to defeat defendants’ judgment against his grantor, and that the deed was accepted with fraudulent intent, the elements of a creditor’s bill to set aside a fraudulent conveyance were stated, and the cause should have proceeded as if the original bill had been filed by the defendants as plaintiffs to set aside the deed, and the burden was on the defendants to plead and prove the facts constituting the fraud, and, defendants having made a prima facie case, the burden was on plaintiff to show good faith, want of notice, and payment of consideration.</p> <p>[As to what demands will support a creditor’s suit, see note in 66 Am. St. Rep. 271.]</p> <p>Pleading—Sufficiency—Necessity of Motion to Make More Definite.</p> <p>2. An allegation in an answer in a suit to quiet title, charging a fraudulent conveyance to plaintiff of the lands in question, that the property was attached by defendants as that of plaintiff’s grantor, and that he had no other property except that mentioned in the complaint, was an implied allegation that such grantor was then owner, and, in the absence of a motion to make more definite and certain, was a sufficient allegation of ownership.'</p> <p>Fraudulent Conveyances — Evidence—Sufficiency.</p> <p>3. Evidence in an action to quiet title in support of defendants’ allegations that the conveyance to plaintiff was fraudulent and made to defeat their judgment held sufficient to show that the conveyance was not a bona fide sale, but was a device to defeat defendants from collecting their claim.</p>

<p>Trial — Requested Instructions — Given Instructions.</p> <p>1. Where the charges given covered all the questions that were for the consideration of the jury, the refusal of requested charges was proper.</p> <p>New Trial — Grounds—Insufficiency of Evidence — Constitutional Law.</p> <p>2. Article VII, Section 3, of the Constitution, as amended (see Laws 1911, p. 7), provides that in actions at law, where the value in controversy exceeds $20, no fact tried by the jury shall be otherwise reexamined by any court, unless it can affirmatively say that there was no evidence to support it. In a servant’s action for injuries, where the case was fairly tried, and there was legal testimony to support the verdict for defendants, under instructions requiring the jury to believe either that defendants were without fault, or that deceased was guilty of contributory negligence, a motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict, and that it was against law and for errors of law occurring at the trial and excepted to by plaintiff, was sustained by an order stating that the court “sustains the said motion.” Held, that as there was legal evidence to support the verdict, and as the court did not affirmatively find that there was no evidence to support it, it was error -to grant á new trial.</p> <p>New Trial — Grounds for Review — Motion for a New Trial.</p> <p>3. Under Article VII, Section 3, of the Constitution, as amended (see Laws 1911, p. 7), providing that no fact tried by a jury shall be reexamined by the court, unless it can affirmatively say that there was no evidence to support it, a motion for a new trial on the ground of insufficient evidence should allege that there was no evidence to support the verdict.</p> <p>Appeal and Error — New Trial — Review—Verdict.</p> <p>4. Under Article VII, Section 3, of the Constitution as amended (see Laws 1911, p. 7), providing that no fact tried by a jury shall be re-examined by any court, unless it can affirmatively say that there was no evidence to support it, a verdict to be protected from reexamination must be one rendered in a court having jurisdiction of the parties and the subject matter, on a trial where there were no reversible errors of law, and where there was some legal evidence to support the verdict.</p> <p>Appeal and Error — Review—Verdict—“Trial by Jury.”</p> <p>5. Under Article VII, Section 3, of the Constitution as amended (see Laws 1911, p. 7), providing that in actions at law the right to trial by jury shall be preserved, and no fact tried by the jury shall be re-examined by any court, unless it can affirmatively say that there was no evidence to support the verdict, the term “trial by jury” means a verdict reached under the forms of law prescribed for a jury trial, so that the provision does not preclude the Supreme Court from reversing a judgment based on a verdict returned after the erroneous exclusion of material evidence.</p>

<p>Statutes — Special and Local.</p> <p>1. Exeept where prohibited by the Constitution, a law may be local or special.</p> <p>Statutes — Special and Local — Subjects.</p> <p>2. General Laws of 1913, page 215, making an appropriation out of the state’s general funds for an irrigation project and reclamation of lands, is not within Article IV, Section 23, of the Constitution prohibiting special or loeal laws “for assessment and collection of taxes” and in thirteen other enumerated eases.</p> <p>States — Loaning Credit.</p> <p>3. General Laws of 1913, page 215, making an appropriation for completion, through the desert land board, of a project to irrigate and thereby reclaim certain lands, the state to be paid for water rights, is a provision for a state enterprise and so does not contravene Article XI, Section 7, inhibiting the legislature loaning the credit of the state.</p> <p>Constitutional Law — Privileges and Immunities.</p> <p>4. Article I, Section 20, of the Constitution, inhibiting any law granting to any citizen or class of citizens privileges or immunities which on the same terms shall not equally belong to all citizens, is not contravened by General Laws of 1913, page 215, providing for completion by the state of an irrigation project which it had taken over, because providing for allowance of credits to all those who had made payments to its predecessor in title for water rights, wherewith such predecessor had commenced the improvement.</p> <p>Waters and Watercourses — Reclamation of Arid Lands — Statutes.</p> <p>5. General Laws of 1913, page 215, providing for reclamation by the state of arid land by an irrigation project, is for a public purpose and so within the powers of the legislature.</p> <p>Constitutional Law — Distribution of Powers — Wisdom or Policy of Law..</p> <p>6. The courts cannot question the wisdom or poliey of a law, this being a legislative or political question.</p>

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Chief Justice McBride.

<p>Reformation of Instruments — Error Running Through Several Instruments.</p> <p>1. Where by mutual mistake an erroneous description extends through a series of deeds and a suit resulting in a judicial sale, so that the property intended to be affected is not described, a court of equity, having before it all the parties interested, may correct the error, and establish the individuals involved in their rights as they would have been but for the mistake, without going through all its ramifications and making the corrections as of the beginning of the error.</p> <p>[As to causes and proceedings in general for the reformation of instruments, see notes in 65 Am. St. Rep. 481; as to reformation on the ground of mistake, see note in 117 Am. St. Rep. 227.]</p> <p>Equity — Multifariousness—Misjoinder of Causes of Action — Relief Sought.</p> <p>2. Where an injunction sought the cancellation of a judgment and a lien thereunder, quieting plaintiff's title to land, and the implied reformation of former decrees are all mere incidents to the general purpose of a suit to bestow the title to the land where it was the intention of all it should rest, a mistake in description having extended through a series of deeds and litigation, the complaint is not subject to the objection of stating more than one cause of aetion, and misjoining them.</p> <p>Equity — Limitation of Actions.</p> <p>3. The statute of limitations does not control suits in equity with the same strictness as it does actions at law.</p> <p>Equity — Laches.</p> <p>4. The matter of a suit being stale depends on the circumstances of each case.</p> <p>Equity — Laches—Parties in Pari Delicto.</p> <p>5. The claim of defendants on land being as stale under the circumstances as that of plaintiff seeking a correction of error through mistake in description, so that they are in pari delicto, neither can claim an advantage over the other in that respect.</p> <p>[The 'rule of pari delicto is the subject of a note in 113 Am. St. Rep. 724.]</p> <p>Estoppel — Pleadings—Position in Judicial Proceeding.</p> <p>6. Where M., owning two tracts of land, and intending to convey them, gave a deed, the description of which was defective, so that it covered only one of them, and O., a judgment creditor of M., brought a suit to set it aside as fraudulent and subject the land to his judgment, his complaint not only using the erroneous description of the deed, but alleging the deed included all of M.’s land, and the suit, in which the court found that deed did inelude all M.’s land, resulted in a decree holding the deed to be a mortgage, and a judicial sale at which plaintiff was the purchaser, followed by a sheriff’s deed, using the erroneous description, plaintiff’s title under the judicial sale will amount to a deed from 0., describing the land as all that owned by M., with the result that O. cannot thereafter, as against plaintiff, subject to his judgment against M. the land which by misdescription M. failed to include in his deed.</p>

From Multnomah: Calvin H. Gantenbein, Judge. Statement by Mr. Justice Burnett. This is an action in ejectment by John Watson, and William James Masson, Trustees, and William James Masson and Rachel Watson Masson, against A. J. Ha-gen. It seems that one John Masson, a resident of Scotland, was the owner in fee of the real property in dispute.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an action by John Zobrist against George Estes for $2,000, damages for fraud and deceit in the sale of 20 shares of the capital stock of the Western Lumber and Fuel Company, a corporation. The cause was tried before a jury, and a verdict rendered in favor of defendant. From a resulting judgment, plaintiff appeals.

From Jackson: Frank M. Calkins, Judge. This is a suit by the Old Mill Ditch & Irrigation Company against William Breeding, to quiet title. From a decree in favor of plaintiff the defendant appeals. The facts are fully set forth in the opinion.

From Jackson: Frank M. Calkins, Judge. Statement by Mr. Justice McNary. This is a suit by the Old Mill Ditch & Irrigation Company, an Oregon corporation, against Barbara E. Estell, to quiet title to an irrigation ditch owned by plaintiff in the northwest quarter of section 4, township 36 south, range 4 west of the Willamette meridian in Jackson County, Oregon. Defendant asserts a perpetual right to the use of a specified flow of the water therein.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by Ary Hagermann, an employee, against the Chapman Timber Company, a corporation, to recover compensation for injuries received while in the service of his employer, and alleged to be due to the negligence of the latter.

From Linn: William Galloway, Judge. This is a suit by the Linn & Lane Timber Company, a corporation, against the County of Linn, and D. S. Smith, as sheriff of the County of Linn. The facts are fully set forth in the opinion.

From Linn: William Galloway, Judge. Statement by Mr. Justice Ramsey. This is a suit by the Eilers Music House, a corporation, against M. Reine for an accounting. On July 19,1911, the appellant commenced action in the Circuit Court of Marion County against one U. S. Rider, to recover from him the sum of $710, and interest, on a promissory note.

From Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice Eamsey. This is an action by Yuen Suey against A. Fleshman to recover $2,732.30 for money had and received. Judgment for the full amount was rendered in the court below for the plaintiff, and defendant appeals. The facts are fully set forth in the opinion of the court.