Volume 68 — Oregon Reports

<p>Statutes — Construction—Intention of Legislature.</p> <p>1. The fundamental rule of construing legislative enactments is to ascertain and declare the intention of the legislature as expressed in the statute.</p> <p>Depositaries — Construction—Remedial Statutes.</p> <p>2. General Laws of 1913, page 515, requiring county treasurers to designate depositaries for county funds, is remedial in character, and should be construed so as to promote the remedy-.</p> <p>Statutes — Construction—Mandatory and Directory Statutes.</p> <p>3. Mandatory provisions of a statute-must unfailingly be followed, while directory provisions need not necessarily be followed in the precise manner indicated.</p> <p>Statutes — Construction—Mandatory or Directory Provisions.</p> <p>4. Where compliance with the particular provision of a statute is a matter of convenience rather than of substance, or where the directions are given with a view merely to the proper and prompt conduct of business, the provision may be regarded as directory.</p> <p>Depositaries — Statutory Provisions — Construction.</p> <p>5. The provision of General Laws of 1913, page 515, requiring the designation of depositaries of county funds to be made on the first Monday in June, is directory, not mandatory; and, where the act did not go into effect until the day after the first Monday in June, but the intention of the legislature was plain that it should be effective in that year, the county treasurer is required to designate depositaries after the act became effective.</p> <p>Depositaries — Designation—Discretion.</p> <p>6. Under General Laws of 1913, page 515, providing that the county treasurer shall designate such banks as possess the required qualifications for county depositaries, the only discretion allowed the treasurer is to determine whether the bank possesses the required qualification, and a demurrer to a writ of mandamus to compel a treasurer to designate a certain bank, which writ alleges that the bank possessed the qualifications, will be overruled.</p> <p>Mandamus — Grounds—Nature of Act.</p> <p>7. Mandamus will lie to compel a public officer to perform a duty prescribed by la.w, but not to control the performance of that duty when the act involves the exercise of discretion.</p> <p>[As to mandamus against public officers, see note in 98 Am. St. Eep. 863.]</p>

<p>Appeal and Error — Review—Theory of Cause.</p> <p>1. 'Where the attorneys for both parties and the court have tried the case on the theory that it was an action for false representations, the Supreme Court will not consider any other theory.</p> <p>Fraud — Pleading—Complaint.</p> <p>2. A complaint for false representations must plead that the representations were false, that the defendant knew them to be false, that they were made with intent to defraud, and that the parties seeking relief believed and relied upon them, to their damage.</p> <p>Fraud — Issues and Proof — Theory of Cause.</p> <p>3. Where the case was tried by the attorneys for both parties and the court as an action for false representations, a recovery cannot be sustained on the theory of want of consideration for a sale.</p> <p>Judgment — Conclusiveness—Matters Concluded.</p> <p>4. In an action for false representations as to land conveyed by a third party to plaintiffs, the judgment-roll, in an action against the third party, in which it was adjudged that such party’s title papers were forgeries, is competent evidence that the third party had not title to convey to plaintiffs, though the present defendants were not parties to the former suit.</p>

From Multnomah: William N. G-atens, Judge. This is an action by Floyd Murphy against William K. Deal and John Keller, in which plaintiff recovered a judgment for $500 and defendants appeal. The facts are fully set forth in the opinion.

From Multnomah: John P. Kavanaugh, Judge. Statement by Mr. Justice Burnett. Tbe plaintiff, Sigvald Anderson, a janitor in tbe employ of tbe Meier & Frank Company, a corporation, conducting a department store in Portland, Oregon, brings this action to recover damages for injuries wbicb he»alleges he received from a pile of boxes containing merchandise having fallen upon him in the basement of the defendant’s establishment where he was at work.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an action by Bertha J. Boatright against the Portland Bailway, Light & Power Company for damages for personal injuries received by plaintiff on the 18th of March, 1912, in alighting from one of defendant’s cars, near Anabel Station, on its railway line in Multnomah County, Oregon. The cause was tried before a jury and a verdict rendered in favor of plaintiff for $2,000.

<p>Master and Servant—Injuries to Servant—Construction of Complaint —Existence of Relation.</p> <p>1. A complaint, in an a-ction for death, alleging that decedent was employed by defendant on the fourth floor of a building, and that in order to reach her work she was compelled to use an elevator operated by another employee of defendant whose negligent operation of the elevator caused decedent’s death, charges that her injuries occurred while acting as a servant.</p> <p>Master and Servant — Existence of Eelation — Injury While Being Carried to Work.</p> <p>2. If, as a part of the compensation to an employee, the carrier transports him to and fro between certain points when not engaged in actual service, or when the travel is not closely connected with the employment, the employee is then a passenger, but if the carriage is merely for the mutual convenience of the parties, or either of them, in connection with the master’s business, the relation of passenger and carrier does not exist between them, so that, where an employer furnishes an elevator for the use of employees in the upper stories of a building, the carriage of the employees on the elevator to their work is the act of an employer and not of a carrier, and the measure of care due from the employer is the same as in any other case founded on the same relation.</p> <p>Master and Servant — Negligence of Master — Care as to Operation of Elevator.</p> <p>3. Where a master furnishes an elevator for the use of employees employed in the upper stories of a building, he is only bound to use ordinary care and prudence commensurate with the danger to be reasonably apprehended, but not the degree of care, required of a common carrier of passengers, as he is only bound to exercise ordinary care to provide a reasonably safe place and reasonably safe appliances for the convenience of the employees in connection with the work.</p> <p>[As to liability of owners of elevators when used by employees, see notes in 56 Am. St. Eep. 806; Ann. Cas. 1912D, 531.]</p> <p>Master and Servant — Who are “Fellow-servants.”</p> <p>4. One who is employed on the fourth floor of a building is a “fellow-servant” of the operator of an elevator which is run by the master to transport employees to and from the floor where they work.</p> <p>Jury — Interest of Juror — Stockholder in Insurance Company.</p> <p>5. Under Section 122, subdivision 4, L. O. L., making the interest of a juror in the result of an action ground of challenge for implied bias, a juror who is a stockholder "or interested in an insurance company warranting against loss by the injury forming the basis of pending litigation would be subject to challenge.</p> <p>Trial — Examination of Juror — Discretion of Court.</p> <p>6. Under Section 856, L. O. L., providing “that the court may exercise a reasonable control over the mode of interrogation so as to make it as distinct, as little annoying to the witness, and as effective for the extraction of the truth as may be,” a prospective juror may be interrogated as to his interest, but the party interrogating him has no right to abuse his privilege, or try to prejudice the jury with irrelevant matter and in an action against an employer for the death of an employee, in which defendant was insured against losses of that kind, it was error for the court to allow questions to the jurors which would tend to prejudice the case in the minds of the jury because of the existence of such insurance.</p> <p>On Rehearing.*</p> <p>Carriers — Master and Servant — Passengers—Employees—Injuries— Nature of Relation.</p> <p>7. The relation of an office clerk to a corporation, as affecting the degree of care required in the operation of an elevator, on which the clerk, at 8:20, was being carried to her place of work, where her duties began at 8:30, was not that of servant, but that of passenger.</p> <p>Carriers — Passengers—Care Required — Elevators.</p> <p>8. The owner of a building operating an elevator therein for the benefit of the occupants of the building and the public generally owes to its employee, as a passenger, when being carried to her place of work in the building, the highest degree of skill and foresight consistent with the efficient operation of the elevator.</p> <p>Master and Servant — Injuries to Servant — “Fellow-servant.”</p> <p>9. The operator of an elevator is not a “fellow-servant” with an office clerk who, while on her way to her work, was killed through the negligence of the operator.</p>

From Malheur: Dalton Biggs, Judge. statement by Mr. Chief Justice McBride. This is an action by R. E. Baker against E. F. Seaweard, and was previously before this court, and is reported in 63 Or. 350 (127 Pac. 961). The issues involved are sufficiently stated in the opinion then delivered.

<p>Dismissal and Nonsuit — Voluntary Dismissal — Counterclaim.</p> <p>1. In a suit to restrain the maintenance of a partition fence on lands claimed by plaintiff, where defendant filed a counterclaim for damages done by surface waters collected by the digging of a ditch on defendant’s land and the amount required to remove the obstruction to the natural watercourse, a motion by plaintiff to dismiss the complaint was properly denied, though the dismissal would have been proper if the answer had stated only defensive matters.</p> <p>Equity — Dismissal—Grounds—Want of Jurisdiction.</p> <p>2. When facts necessary to confer jurisdiction in equity are stated in the pleading, but denied, the question of jurisdiction becomes one of fact, and, when .the lack thereof appears, the court must dismiss the suit. »</p> <p>Equity — Retention of Jurisdiction Acquired.</p> <p>3. Where a court of equity obtains jurisdiction of the subject of litigation on grounds set forth in the answer, it rightfully retains jurisdiction to administer complete relief as to the entire subject matter.</p> <p>[As to rule that equity assuming jurisdiction for one purpose will retaiu it for all purposes, see note in Ann. Gas. 1912A, 803.]</p> <p>Equity — Jurisdiction—Objections and Waiver.</p> <p>4. Where a cause is entirely without the field of equitable jurisprudence, no act of the adverse party can confer jurisdiction; but, in a ease within the field of equitable jurisprudence in which an element essential to complete jurisdiction is lacking, the objection must be raised at the proper time, or it is waived.</p>

From Baker: Gustav Anderson, Judge. This is an action by H. A. Knauff against the Highland Development Company, a corporation, for damages for a personal injury. From a judgment in favor of plaintiff, defendant appeals. For appellant there was a brief over the names of Messrs. Clifford & Correll and Mr. H. H. Clifford, with an oral argument by Mr. Morton D. Clifford.

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Statement by Mr. Justice Burnett.</p> <p>This is an action by O. W. Dunn against the Orchard Land & Timber Company, a corporation, to recover</p> <p>damages for a personal injury. The complaint alleges in substance that, in connection with its sawmill in Lane County, among other machinery thereof, the defendant controlled and operated a structure, scaffolding and staging known as a slab haul, extending out from the mill for a distance of about 50 feet, incorporated with which was a system of dead rolls used for conveying from the mill the slabs resulting from the manufacture of lumber, to be burned at the end of the structure. It was the duty of the plaintiff, as the employee of the defendant, to pass along a board walk adjacent to the line of rolls, and, with a tool called a pickaroon, to drag the slabs along the rolls, and thus conduct them into the fire. The staging supporting the slab haul was upward of 27 feet above the ground where the accident complained of occurred. There was a guard-rail most of the way along this walk; but there was none for quite a distance at the end of the haul next to the fire. The plaintiff states in substance that while in the discharge of his duties mentioned he fell from the staging at the point where there was no guard-rail, and suffered the injuries of which he complains.</p> <p>The language of the answer “admits that the defendant is a corporation duly organized and existing under and by virtue of the laws of the State of Oregon, and is the owner of and had control of a sawmill in Lane County, Oregon, and, among other machinery in said sawmill, owned, controlled and operated, from said sawmill, structure or scaffolding extending out from said mill a distance of about 50 feet and about 5 feet wide, on which were dead rolls, and which structure, scaffolding and dead rolls were operated as a slab haul, and were used and operated for conveying from said mill slabs and other refuse, so that the said slabs and refuse would fall from the end of said, dead rolls to the ground and enter a fire at the end of said rolls, and the end of said slab roll was about 24 feet from tbe ground, and that on tbe day of tbe accident mentioned in the said complaint, to wit, tbe 8th day of June, 1912, tbe said plaintiff fell from tbe end of said scaffolding to tbe ground, and was jarred and bruised.” As an affirmative defense tbe defendant alleges contributory negligence of tbe plaintiff and assumption of risk.</p> <p>Tbe affirmative matter of tbe answer is denied by tbe reply. From a verdict and judgment in favor of tbe plaintiff, tbe defendant appeals.</p>

<p>Appeal and Error — Decisions Reviewable — Refusal of New Trial.</p> <p>1. No appeal lies from the refusal to grant a new trial.</p> <p>Appeal and Error — Record—Scope and Contents.</p> <p>2. Where the only issue raised by appellants is the admissibility of a receipt offered to prove payment of plaintiff’s claim, which receipt is incorporated in a motion for new trial, from the refusal of which the appeal is taken, but which is not presented in a bill of exceptions, appellants have no standing in the Supreme Court; the receipt not being a part of the record.</p> <p>Appeal and Error — Record—Questions Presented for Review.</p> <p>3. Under Section 171, L. O. L., relating to exceptions, and providing that the objection shall be stated with so mueh of the evidence or other matter as shall be necessary to explain it, and no more, and Article VII, Section 3 of the Constitution, providing that, till otherwise provided by law, upon appeal to the Supreme Court, either party may have .attached to the bill of exceptions the whole testimony, the reporter’s transcript and other papers purporting to be parts of the testimony which are not authenticated as a bill of exceptions are not properly before the Supreme Court, and will not be considered to ascertain the relevancy of papers offered in evidence and rejected.</p>

<p>Carriers — Existence of Relation — Effect of Contract.</p> <p>1. A carrier cannot, by contract, avoid tbe performance of its duties as such, if the service in question is one required of it as a common carrier.</p> <p>Railroads — Carriage of Goods — Stopping Places.</p> <p>2. A carrier cannot be required, in the absence of statute, to stop trains to unload freight or passengers at places other than such as it may choose and hold out as regular stopping places.</p> <p>Railroads — Carriage of Goods — Stopping Places.</p> <p>3. Though Section 6897, L. O. L., requires a railroad to provide and maintain adequate passenger and freight depots, the legislature has not determined where a common carrier must establish stations, Section 6888 providing that the schedule of rates shall plainly state the places between which passengers and property will be carried, thus leaving it optional with the carrier to determine its stations.</p> <p>Carriers — Schedules—“Point”—“Directly Intermediate Point.”</p> <p>4. A provision in a carrier’s schedule of rates, under the heading, “Intermediate Application,” that the rates will apply to directly intermediate points does not mean that the rates apply to localities between stations; the word "points" referring to stations, and “directly intermediate points” to parts of the schedule in which only a part of the stations are named.</p> <p>Carriers — Regulation—Rates.</p> <p>5. A carrier, having no siding or stopping place at a point where a patron desired to have stone hauled for a building in the course of erection, was entitled to demand extra compensation before undertaking the service, and is not subject to a penalty though the rate charged is greater than that fixed in its schedule for the station next beyond the point of delivery.</p>

From Linn: William Galloway, Judge. This is a suit by Elva M. Martin against the City of Brownsville and A. W. Standish, its street commissioner, enjoining the defendants from opening certain streets through plaintiff’s premises. There was a decree for defendants and plaintiff appeals. Respondents move to strike from the files of the court what purports to be a transcript of the testimony.

From Multnomah.: Henry E. McGinn, Judge. Statement by Mr. Justice Bean. This is an action by the Pacific Paper Company, a corporation, against the City of Portland, to recover damages sustained by reason of the negligence of the defendant which caused the bursting of a water-main at Fourth and Ankeny Streets in the City of Portland. The cause was tried before a jury, which found a verdict against the city in the sum of $675.

From Multnomah: Calvin U. Gantenbein, Judge. Statement by Mr. Justice Bean.

<p>Mechanics’ Mens — Proceedings to Perfect — Completion of Work.</p> <p>Where one employed as a carpenter by the day to erect a building quit work on September 12th, and on September 26th filed a statement to preserve priority of claim as against attaching creditors, and on the 23d of January following did additional work on the building, and furnished materials at the request of the occupant without the knowledge of the owner, no rights accrued under the. statute for the relief of mechanics by reason of a notice of lien filed January 24th.</p>

From Washington: James TJ. Campbell, Judge. Statément by Mr. Chibe Justice McBride. The defendant, Edward L. Naylor, was indicted for the crime of lewd and lascivious cohabitation.

From Linn: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit by tbe Lebanon Lumber Company, a corporation, against Arabel D. Leonard, Martha M. Treat and Fred Deffenbacher, to enjoin defendants from interfering with the plaintiff’s floating sawlogs down McDowell Creek to the Santiam River. There was a decree for the plaintiff and defendants appeal.

From Multnomah: Robert Gr. Morrow, Judge. Statement by Mr. Justice Moore. This is a suit by Elizabeth Kaser, administratrix, against Hannah M. Kaser, to establish an interest in personal property, and to require the defendant to execute an undertaking with sureties conditioned that such property shall, without waste or destruction, be delivered to plaintiff upon the death of the defendant.

<p>Judgment — Conclusiveness—Matters Which Might be Litigated.</p> <p>1. In a suit for partition, plaintiffs cannot contend that the description in a deed to a certain part of the land was too indefinite, where there had been a previous suit between the same parties attacking the deed on the ground of fraud, since the title to the land was the issue in the former suit and the judgment concluded not only every matter actually litigated, but any other matter that might have been litigated.</p> <p>Deeds — Construction—Description—Certainty.</p> <p>2. Where a deed to a tract of land excepted therefrom the home place with 20 acres adjacent thereto, to be on the north side of a certain fence, and to be as nearly square as possible, and it appeared that the fence referred to did not run beyond the square 20-aere tract, the description is sufficient, since it is only necessary that it be such that a competent surveyor can identify the land described with reasonable certainty, either with or without extrinsic evidence.</p> <p>Partition — Review—Question in Lower Court — Exceptions to Referees’ Report.</p> <p>3. Where parties to a partition suit made no objection to the report of referees for failing to designate by landmarks the lines described, that failure was only an irregularity which could not be raised on appeal from the decree confirming the report.</p> <p>Partition — Review—Harmless Error — Interlocutory Proceedings.</p> <p>4. Where referees to make a partition were instructed in the interlocutory decree that they should locate the portion of one of the parties next to lands already owned by him, the error was harmless where it appeared that the allotment thus made was fair to all.</p> <p>Partition — Disposition of Cause — Modification of Decree.</p> <p>5. Where a decree in partition recites the report of the referees, which correctly describes the tract involved, and the deeree further describes the tract, omitting one line, the description will be corrected to conform to the report of the referees.</p> <p>Partition — Actions—Costs.</p> <p>6. Under the express provision of Section 483, L. O. L., the costs of partition, including the fees of referees and other disbursements, must be paid by the parties in proportion to their respective interests and may be specified in the decree.</p>

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice McNary. Entertaining tbe tbougbt that he had a binding contract of insurance with the Western Life Indemnity Company, a corporation, and that its every provision had been faithfully observed, H. A. Larsen Spande as plaintiff, on November 4, 1908, brought an action on the policy to recover the sum of $2,000, the amount of its matured value.

<p>Mortgages — Assignment—Validity—Evidence.</p> <p>1. Evidence held to show that a mortgagor, in the presence of the mortgagee, stated to one to whom the mortgagee afterward assigned the mortgage that the property covered was valuable for coal, timber and fruit, when in fact it was valueless for timber, nearly worthless for fruit, and no coal had been found on the land, and its worth for that purpose was wholly problematical.</p> <p>Mortgages — Assignment—Validity—False Representations.</p> <p>2. A mortgagee who is negotiating for the sale of the mortgage is responsible for false representations as to the character of the land by the mortgagor in his presence to the proposed purchaser.</p>

From Multnomah: William N. Gatens, Judge. Statement by Mr. Justice Bean. This is an action by Valencie Oberstock against the United Railways Company, a corporation, which was tried before a jury and a verdict rendered in favor of plaintiff. From a judgment thereon, defendant appeals. The United Railways Company operates a line of electric railway from Portland in a northerly direction along the Willamette River to and through the town of Linnton.

From Multnomah: Henry E. McGinn, Judge. This is an action by George T. Fields against the Western Union Telegraph Company to recover damages for negligently failing to deliver a telegram. The cause was tried by the'court and findings and judgment rendered in favor of plaintiff for $110, from which defendant appeals.

<p>This is an original application by R. E. Lee Steiner for a writ of habeas corpus.</p>

<p>Bridges—Definition—Approaches.</p> <p>1. The word “bridge” has generally been construed to mean the structure spanning a hollow, which was erected as a means of.crossing a deep gap, and includes the approaches whereby a passageway to, from and across the bridge is acquired.</p> <p>[As to approaches as part of bridge, see note in Ann. Cas. 19Í2B, 792.]</p> <p>Bridges—Maintenance—Duty of State.</p> <p>2. The obligation to build and maintain adequate public highways, including bridges, devolves primarily upon the state, which, unless prohibited by the fundamental law, may itself discharge the trust, or delegate it to a municipal or (piasi-municipal corporation.</p> <p>Highways — Use for Travel — Rights of Public.</p> <p>3. A highway, whether laid out as a rural road, under the jurisdiction of a County Court, or as a city street, subject to the control of a common council, so far as it subserves the easement of passage and its incidents, is free and at all times controlled by legislative authority.</p> <p>Bridges — Legislative Authority.</p> <p>4. The legislative assembly, in the absence of constitutional restriction, may grant the supervision and control of city streets, ineluding bridges thereon, to some other governmental agency than the city, so long as the way is not diverted to a use inconsistent with, or substantially different from, that originally designed, and the change imposes on the municipality no debt incurred by another.</p> <p>Bridges — Public Improvements — Authority to Make.</p> <p>5. Under the charter of the town of Sheridan (Laws 1880, p. 146), Section 5, providing it shall not be liable to build or replace with a new one any bridge across the Yamhill River, and the charter of the City of Sheridan (Laws 1891, p. 386), Section 133, as amended by Laws 1895, page 247, giving the city control of all streets, bridges, and roads within the corporate limits except the bridge over the Yam-hill River at Bridge Street, which bridge shall be the property of the county, the county is obliged to maintain the bridge excepted, and the common council of the city has no authority to assess property holders for the expense of rebuilding the approaches.</p> <p>Bridges — Streets—Supervision—Legislative Authority.</p> <p>6. Whether or not a county road ceases and becomes a street when a city is incorporated, the legislative assembly, treating the way as public, may impose the burden of maintaining a bridge thereon on the county.</p> <p>Bridges — Maintenance—Liability of County.</p> <p>7. The city charter of Sheridan (Laws 1891, p. 386), Section 133, as amended by Laws 1895, page 247, gives the city control of all streets, bridges and roads within the corporate limits, except the bridge over the Yamhill River, and gives the city authority to collect road taxes from its inhabitants and on the property situate therein. Section 937, subdivision 4, L. O. L., gives the County Court of each county authority to provide for the erection and repairing of public bridges on any highway established by public authority. Section 6366 provides that the expense of building or repairing bridges is to be liquidated from any money in the county treasury not otherwise appropriated. Section 6326, prior to its repeal by Laws 1913, page 105, provided for the collection of ordinary road or poll taxes by counties. Held, that the provision of the city charter authorizing the City of Sheridan to collect road taxes did not relieve the county of its duty to maintain the bridge across the Yamhill and its approaches.</p> <p>Bridges — Maintenance—Liabilities of County.</p> <p>8. A provision in the city charter of Sheridan (Laws 1891, p. 373), Section 57, as amended by Special Laws 1901, page 209, exempting the city from liability for an injury from any defect in any bridge unless the city had actual notice thereof and a reasonable time to repair it, does not absolve the county from the duty of maintaining the approaches to a bridge which the charter expressly excepts from the control of the common council and places under the control of the County Court.</p>

<p>Customs and Usages — Evidence—Sufficiency.</p> <p>1. In proving a custom it is necessary to show, not only that it is universal in the locality where it obtains, but also that it was known to the parties contracting with reference thereto, or is of such general acceptance that knowledge thereof is necessarily implied.</p> <p>Customs and Usages — Effect—Interpretation of Contract.</p> <p>2. Custom is used in evidence only as a means of interpretation of a contract, and not to import into it new terms.</p> <p>Sales — Construction of Contract — Time for Payment of Price.</p> <p>3. A contract to sell a quantity of barley and to deliver it f. o. b. steamer between certain dates, being merely executory, denotes that tender of payment must be made contemporaneously with delivery of the goods.</p> <p>Customs and Usages — Construction of Contract — Effect.</p> <p>4. Under a contract to sell a quantity of No. 1 barley, Portland Standard, and to deliver it f. o. b. steamer, custom cannot be relied on to show a further agreement that the seller must furnish a certificate that the barley is of the quality provided in the contract; such an agreement being in contradiction of the contract making payment of price and delivery dependent covenants.</p> <p>Pleading — Matters of Fact or Conclusions.</p> <p>5. An allegation in the complaint that defendant has failed to deliver barley sold to plaintiff in accordance with the terms of the contract, without showing wherein the delivery failed to comply with the contract, does not state facts, but merely a conclusion.</p>

Prom Multnomah: Robert G. Morrow, Judge. This is an action by George L. Peaslee against the Gordon Palls Electric & Manufacturing Company. The facts are set forth in the opinion by Mr. Justice Ramsey. Judgment for plaintiff and defendant appeals.

From Multnomah: John P. Kavanaugh, Judge. Statement by Ms. Justice Bean. This is a suit in equity by W. H. Hurlburt, against James H. Morris and Fred S. Morris, partners doing business under the firm name and style of Morris Brothers, for an accounting upon three separate causes of suit. The first, referred to as the.

<p>Vendor and Purchaser — Eona Fide Purchaser — Failure to Eecord Deed.</p> <p>1. Under the direct provisions of Section 7129, L. O. L., a grantee must record his deed within five days from its execution or it will be void as against any subsequent purchaser in good faith for a valuable consideration, whose conveyance is first recorded.</p> <p>Attachment — Priority Over Unrecorded Deed.</p> <p>2. Under the direct provisions of Sections 301, 302, L. O. L., the plaintiff, from the time of an attachment on realty until it is discharged o or the writ executed, is as against third persons deemed a purchaser in good faith and for a valuable consideration; if the certificate is duly made and filed as required, and so his rights under the attachment will prevail as against an unrecorded deed of which he has no notice.</p> <p>Process — Constructive Service — Strict Compliance.</p> <p>3. The acquisition of jurisdiction over nonresidents by publication of summons or personal service out of the state being unknown to the common law and prescribed only by statute, a strict compliance with the statute is necessary.</p> <p>Judgment — Process to Sustain — Jurisdiction—Property of Nonresident.</p> <p>4. The property of a nonresident can be reached and applied to the satisfaction of his debts only by proceedings substantially in rem.</p> <p>Judgment — Validity—Judgments Against Nonresidents.</p> <p>5. When a nonresident defendant is served by constructive service, a judgment against him is void, unless property owned by him in the state has been attached.</p> <p>Attachment — Proceedings—W aiver.</p> <p>6. As Section 308, L. O. L., provides that, in case judgment is recovered for plaintiff, the court shall order and adjudge the attached property sold to satisfy plaintiff’s demands, the failure of the court in entering judgment to direct a sale of the attached property is a waiver and discharge of the attachment lien, and hence, in an action against a nonresident begun by attachment and constructive service, a judgment is void where the court did not direct a sale of the attached property; the failure waiving the attachment lien and rendering the judgment merely one in personam.</p> <p>[As to judgments depending for their validity upon attachments, see note in 76 Am. St. ftep. 800.]</p>

<p>Wills — Probate—Burden of Proof.</p> <p>1. The burden of proof is on the proponent of a will to establish every fact necessary to show the proper execution of a valid will.</p> <p>Wills — Signature by Testator — Evidence.</p> <p>2. Evidence in a will contest held insufficient to show that the signature of decedent to the will was a forgery.</p> <p>Evidence — Weight of Evidence — Expert Testimony.</p> <p>3. The evidence of experts in all cases should be received and weighed with caution.</p> <p>Wills — Right to Assert Validity — Estoppel—Representations.</p> <p>4. Eepresentations by the authorities of an abbey that deceased, dying at the abbey, had made over all his property to it, and had left no will, will not estop the authorities from claiming that the will was executed, where such representations were not believed by the heirs.</p> <p>Wills — Execution—Validity—Sufficiency of Evidence.</p> <p>5. Evidence in a will contest held sufficient to establish the due execution of a will within Section 7319, L. O. L., requiring a will to be in writing, signed by the testator, or by some person under his direction, in his presence, and attested by two or more competent witnesses subscribing their names to the will in his presence.</p> <p>[As to attestation and witnessing of wills, see note in 114 Am. St. Eep. 209. As to signature of testator “at end” of will, see note in Ann. Cas. 1913C, 845.]</p>

From Union: Gustav Anderson, Judge. Statement by Mr. Justice Burnett. This is a suit by S. E. Ivanboe, a wife, to compel F. S. Ivanboe, her husband, to contribute to her support. From a decree making an allowance to the plaintiff much less than she claimed, both parties have appealed.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Burnett. This is an action by D. R. B. Winniford and R. H. Mays, doing business under tbe firm name and style of Winniford & Mays, against A. L. MacLeod and tbe Lewis-Wiley Hydraulic Company, a corporation, and owner of what is known as Westover Terrace, in Portland, Oregon.

From Multnomah: Henry E. McGtnn, Judge. Statement by Mr, Justice Bean.

<p>Navigable Waters—Riparian Rights—Separation of Ownership.</p> <p>1. The ownership of the upland and adjoining land under water, whether tide water or fresh streams, or rivers, may be separated.</p> <p>Navigable Waters — Riparian Rights — Separation of Ownership.</p> <p>2. The separation of ownership of land under water from that of the adjoining upland confers ownership of the water, so far as that can rest in an individual, on the owner of the bed of the stream.</p> <p>Navigable Waters — Riparian Rights — Separation of Ownership.</p> <p>3. To separate the ownership of the upland and the adjoining land under water, the intention to do so must distinctly appear, and if the grant is in ordinary form, bounded by water, the land below as well as that above the water will pass.</p> <p>Navigable Waters — Riparian Rights — Separation of Ownership.</p> <p>4. Land under water may be reserved in a grant by the reservation of a strip along the shore.</p> <p>Navigable Waters — “Riparian Right.”</p> <p>5. “Riparian right” is defined to be “a form of enjoyment of the land and of the river in connection with the land.”</p> <p>Navigable Waters — Riparian Rights — Land Bounded by Water.</p> <p>6. Under Section 5201, L. O. L., authorizing riparian owners in incorporated towns to build wharves, where a party conveys land bounded by water, though it is shallow and is intended to be reclaimed by filling, it will never be presumed that he reserves rights in front of the land conveyed, and the mere fact that the boundary is indicated by a line on the plat will not limit the grant.</p> <p>[As to nature of riparian rights, and lands to which they attach, see note in Ann. Cas. 1913E, 709.]</p> <p>Navigable Waters — Riparian Rights — Land Bounded by Water.</p> <p>7. By the platting and dedication of a tract of land bordering on navigable water, and by conveyances of lots with reference to the map, the riparian or wharf rights are severed from the inside lots and attached to the outmost ones.</p> <p>Navigable Waters — Riparian Rights — Band Bounded by Water.</p> <p>8. A trust agreement, describing a tract of land as extending to low-water mark, and reciting that the parties were desirous of having the legal title in certain persons so that such persons could cause the tract to be surveyed into lots and blocks and properly dedicated, indicated an intention to plat and sell all the land to low-water mark.</p> <p>Navigable Waters — Tide Lands — Title of State;</p> <p>9. The title of tide lands which became vested in the state upon its admission to the Union is subject to the paramount right of navigation existing in the public, and of Congress to regulate commerce between the states.</p> <p>[As to title to land covered by navigable water, see note in 53 Am. St. Rep. 289.]</p> <p>Quieting Title — Nature of Remedy — Adequate Remedy at Law.</p> <p>10. The remedy at law by ejectment is not adequate to determine the rights of a riparian owner to land under water adjoining his upland, and equity has jurisdiction.</p>

<p>From Coos: John S. Coke, Judge.</p> <p>This is a suit by J. L. Kronenberg against the Walker Warehouse Company, wherein a decree was rendered for the plaintiff, and defendant appeals.</p>

From Columbia: James U. Campbell, Judge. Statement by Mr. Justice Burnett. This is a suit brought by the West Shore Lumber Company, a corporation, against Gr. W. Hollenbeck and Parker Stennick, to foreclose a land owner’s lien on some sawlogs cut upon such premises. The defendant Hollenbeck cut the logs under a contract for their sale between him and the plaintiff, and the defendant Stennick claims as a purchaser from Hollenbeck.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Ramsey. This is an action by Sommers Squires against the Modern Brotherhood of America for the recovery of $1,000 alleged to be due on a contract of insurance. The plaintiff obtained, in the court below, a verdict and a judgment for the full amount claimed. The court below directed the jury to find a verdict for the plaintiff.

<p>Creditors’ Suit — Conditions Precedent — Exhaustion of Legal Remedies.</p> <p>1. A creditor who has obtained a judgment against an individual partner but has no judgment against either the firm or the other partner and has not attached property either of the firm or of the second partner cannot maintain a suit in the nature of a creditor’s bill against either the firm or the second partner.</p> <p>[As to demands which will support creditors’ suits, see note in 66 Am. St. Rep. 271. As to creditors’ suits in aid of execution, see note in 90 Am. Dec. 288.]</p> <p>Judgment — Merger and Bar — Parties to Judgment — Partners.</p> <p>2. Where a creditor obtains judgment against an individual knowing when the suit is brought that another has an interest as partner in the subject matter, though he did not know this when the contract involved was made, such judgment is a bar to a subsequent suit against the other partner of the firm.</p> <p>Partnership — Liabilities—Joint or Several.</p> <p>3. Debts of partnerships are joint and not several obligations.</p> <p>Judgment — Merger and Bar — General Buie.</p> <p>4. The original demand on which a judgment is based is merged in the judgment.</p> <p>Parties — Defects—Objections and Waiver.</p> <p>5. Where a debt is joint, the creditor must sue all the debtors or those sued may demur for defect of parties or plead in abatement, or they may waive the defect and permit judgment to be taken against them.</p> <p>Stipulations — Construction and Operation.</p> <p>6. A stipulation between plaintiff, defendant, and a third person that defendant and the third person may on or before the last day of the term of court pay to plaintiff $1,000 and deliver to plaintiff their note for $3,500 secured to the satisfaction of plaintiff, or if they fail to do so plaintiff may take judgment against defendant for $4,500 without trial, does not in any way give plaintiff the right to proceed against the third person as a partner of defendant nor against the firm after judgment has been taken in accordance with the stipulation against defendant alone.</p> <p>Partnership — Liabilities—Application of Assets.</p> <p>7. A judgment creditor of a partner is not entitled to any part of the proceeds of a judgment in favor of the firm unless there is enough to pay all of the debts of the firm in full and leave a balance to be divided between the partners, but, if there are enough assets of the firm to pay its debts and leave a balance, the creditor would be entitled to his debtor’s share of such balance.</p>

Prom Multnomah: Calvin U. Cante nbein, Judge. Statement by Mr. Justice Burnett. This is an action in the usual form by L. H. Litscher against J. T. Alexander, Ada P. Alexander and George H. McKee upon a promissory note indorsed to the plaintiff for value, in the regular course of business, before maturity. The answer admits the execution of the note, denies that there is anything due thereon, and traverses the allegation of indorsement.

<p>Libel and Slander — Actions—Pleading—Complaint.</p> <p>Where the language alleged in a complaint for libel is not libelous per se, and there is no innuendo, a demurrer is properly sustained.</p> <p>[As to what words are libelous per se, see note in 116 Am. St. Hep. 802.]</p>

From Klamath: Henry L. Benson, Judge. Statement by Mr. Chief Justice McBride. This is a proceeding in mandamus by M. M. Obenchain to compel Clande H. Daggett, county treasurer of Klamath County, to pay a warrant issued upon the general fund and held by plaintiff.

<p>Reformation of Instruments — Evidence—Weight and Sufficiency.</p> <p>1. Evidence, in a suit to reform a deed on the ground of mistake as to the location of the corner from which the description in the deed commenced, held insufficient to sustain a judgment for plaintiff.</p> <p>Reformation of Instruments — Evidence—Weight and Sufficiency.</p> <p>2. Relief will be granted in cases of written instruments only where there is a plain mistake clearly made out by satisfactory proof, and not when the evidence is loose or contradictory.</p> <p>Reformation of Instruments — Evidence—Burden of Proof.</p> <p>3. In a suit to reform a deed, the burden is on plaintiff to show that the mistake was mutual or shared in by both parties.</p> <p>Reformation of Instruments — Grounds—Mistake.</p> <p>4. To reform a deed on the ground of mistake, it should be shown that the mistake did not arise from the gross negligence of plaintiff, and that an unfair advantage has been gained by the defendant through the mistake, and that it is against good conscience to allow the mistake to stand.</p> <p>[As to causes and proceedings for reformation of instruments, see note in 65 Am. St. Rep. 481. As to reformation on ground of mistake, see notes in 30 Am. St. Rep. 621; 117 Am. St. Rep. 227.]</p>

<p>Appearance—General Appearance—Demurrer to Pleading.</p> <p>1. The Circuit Court, being one of general jurisdiction, and being given jurisdiction to grant writs of mandamus by Section 614, L. O. L., where defendants appeared and filed demurrers to the alternative writ of mandamus, the court had jurisdiction of the persons of defendants and of the subject matter of the action.</p> <p>[As to test whether appearance is special or general, see note in Ann. Cas. 1914A, 1189.]</p> <p>Mandamus—Persons Entitled to Sue.</p> <p>2. A father, being the natural guardian of his children and chargeable with their support and education, and being guilty of a misdemeanor, under Section 4120, L. O. L., and Laws of 1911, page 428, if he fails to send them to the public schools according to law, has the right to maintain mandamus, to compel a school board to permit his minor children to attend the public schools and be instructed therein.</p> <p>Parties—“Defect”—Defendants.</p> <p>3. “Defect” means too few, not too many, and there is a defect of parties defendant only when one or more parties that should have been made defendants have not been made parties.</p> <p>Parties—Defects—Sufficiency of Demurrer.</p> <p>4. When one demurs to a complaint for defect of parties, it is necessary to state in the demurrer who the omitted party is, to enable the plaintiff to amend his pleading by including all the necessary parties.</p> <p>Mandamus—Appeal—Record—Matters Considered.</p> <p>5. Under Section 616, L. O. L., requiring the material facts stated in a petition for mandamus to be recited in the alternative writ, and Sections 618-620, limiting the pleadings in mandamus to the alternative writ, answer, reply, and demurrers to these pleadings, and providing that the pleadings may be amended, and issues made up and tried, as in an action, when the alternative writ is amended, the petition and original writ cannot be considered for any purpose, on an appeal from a judgment sustaining demurrers to the amended writ.</p> <p>Mandamus—Pleading—Demurrer—Admissions.</p> <p>6. Demurrers to an amended alternative writ of mandamus admit all the material allegations thereof to be true.</p> <p>Schools and School Districts — Public Schools — Right to Admission— Half Indian Blood.</p> <p>7. Where children of half Indian and half white blood and their parents are citizens of the United States and of the state, are not members of any Indian tribe, and conform to the customs and habits of civilization, th'e children are prima facie entitled to be admitted as pupils in the publie school of the district in which they live.</p> <p>Schools and School Districts — Public Schools — Separate Schools for Colored Children.</p> <p>8. While the state may enact laws for separate schools for colored children, black or red, school boards cannot, under Section 4052, subsection 18, L. O. L., requiring them to admit free of charge to the schools of their districts all persons between the ages of 6 and 21 residing therein, and in the absence of statutory provision permitting it, establish separate schools for Indian children and compel them to attend such schools.</p> <p>Schools and School Districts — Public Schools — Powers of School Boards.</p> <p>9. School boards have no powers except those expressly granted, and those necessarily implied from those that are granted.</p>

From Klamath: Henry L. Benson, Judge. Statement by Mr. Justice Bean. This is a suit by S. H. Griffith to restrain the collection of a certain assessment .levied by the Klamath Water Users’ Association against certain lands of the plaintiff which are included in his stock subscription and contract.

From Coos: John S. Coke, Judge. Statement by Mr. Chief Justice McBride. This is a suit by Eupkemia Dyer, Elbert Dyer, Louise Hi eking, Stephen Callier and E. M. G-allier against the City of Bandon, a municipal corporation, P. Hanrahan, W. H. Logan and D. P. Plymale, contractors, for the improvement of Sixth Street and Randolph Avenue in said city, to restrain the collection of a street assessment.

<p>Breach of Marriage Promise — Admissions—Determination as to Admissibility.</p> <p>1. A witness, in an action for breach of promise to marry, testified that defendant said he had been after a' girl for approximately 10 years, and he had finally landed her. Witness could not say that the remark related to plaintiff, but that the girl had come from Tacoma or Vancouver; he did not remember which. The statement was communicated to plaintiif as having reference to her, and she talked it over with defendant in the presence of a third person. Plaintiff had returned from Vancouver about that time, and defendant was associating with her. Held, that the circumstances were sufficient to permit the testimony to go to the jury as to whether defendant had reference to plaintiif.</p> <p>[As to actions for breach of promise to marry, see notes in 63 Am. Dec. 532; 40 Am. St. Rep. 172. As to exemplary damages in such actions, see note in Ann. Cas. 1914B, 319.]</p> <p>Trial — Conduct in General — Reproving Witnesses.</p> <p>2. The reproof of a witness by the judge for including argument in his testimony, and for nodding his head and making demonstrations constantly in the courtroom, is not error in itself.</p> <p>New Trial — Grounds—Newly Discovered Evidence — Diligence.</p> <p>3. A motion by defendant for new trial on the ground of newly discovered evidence is properly denied, where the proposed new witnesses were residents of the city where the trial was held, and one or both were present at the trial to the knowledge of defendant, and their testimony, if material, could have been procured by reasonable diligence.</p> <p>Appeal and Error — Review—Harmless Error — Misconduct of Juror.</p> <p>4. The misconduct of plaintiff and a juror in meeting and conversing will not be held harmless, where the jury rendered a verdict for $50,000 for breach of promise of marriage.</p> <p>New Trial — Grounds—Misconduct of or Affecting Juror.</p> <p>5. • A surmise of the judge, unsupported by direct evidence, that misconduct of a juror and plaintiff in meeting and conversing was procured by defendant will not prevent a new trial for such misconduct.</p> <p>Appeal and Error — Rehearing—Questions Reviewable.</p> <p>6. Where error is assigned on the denial of a motion for new trial, and was the main reliance of the appellant, and the respondent on the original hearing failed to raise the point that the order denying a new trial could not be reviewed on an appeal from tbe judgment, the question cannot be raised on petition for rehearing.</p> <p>Appeal and Error — Grounds—Misconduct of or Affecting Jury.</p> <p>7. Where the trial court finds that conduct of plaintiff and a juror in conversing with reference to the ease was improper, an order denying a new trial will be reversed.</p>

From Douglas: Lawrence T. Harris, Judge. Statement by Mr. Justice Bean. This is a suit brought by Simon Caro against H. Wollenberg to have a deed absolute in form declared to be a mortgage, for an acounting, and to redeem upon any balance being found due.

<p>Highways — Taxes—Exemption of City Property.</p> <p>1. 'City charter of Ashland, Article XVII, Section 1 (Sp. Laws 1898, p. 100), providing that the territory within the city is excepted out of the jurisdiction of the County Court for road purposes, and the inhabitants of the city shall be exempt from road taxes and assessments on property in the city except such as may be levied by the city council, applies not only to that portion of a road tax levied pursuant to Section 6320, L. O. L., which is to be apportioned to the road districts of the county, but also to the part which the County Court may expend in any part of the county.</p> <p>Taxation — Equality and Uniformity.</p> <p>2. A tax that is equal and uniform throughout the taxing district is not violative of Article I, Section 32, and Article IX, Section 1, of the Constitution requiring equality and uniformity.</p> <p>Highways — Taxation—Equality and Uniformity.</p> <p>3. City charter of Ashland, Article XVU, Seetion 1 (Sp. Laws 1898, p. 100), exempting property in the eity from road taxes and assessments except those levied by the eity council, is not violative of Article I, Section 32, and Article IX, Seetion 1, of the Constitution requiring equality and uniformity.</p>

From Hood River: William L. Bradshaw, Judge. This is a suit in equity by Ferdinand William Knolhoff against Henry A. Mark, for the reformation of and for the specific performance of a contract for the sale of real property. The facts are fully set forth in the opinion by Mr. Justice Ramsey.

<p>Escrows- — Construction of Agreement.</p> <p>Where an escrow agreement provided that if defendant were satisfied with a homestead claim the check deposited should be delivered to plaintiff, and that the only evidence of defendant’s satisfaction with the claim should be the exhibit of the United States receiver’s certificate, or a statement signed by both parties, and that the taking of the homestead by defendant should be conclusive evidence of his satisfaction, but that if defendant should be dissatisfied, or could not make a homestead filing, the money was to be returned to him, and in any event in 22 days, and after examination, defendant filed on the claim as a desert claim, and no evidence was presented to the depository, the return of the money to the defendant after more than 22 days did not render it liable to the plaintiff for the amount thereof.</p> <p>[As to law of escrows, see note in 130 Am. St. Rep. 910.]</p>

From Marion: Percy B. Kelly, Judge. Statement by Mr. Justice Burnett. This is an action by ¥m. Ball and Palmyre Ball against E. M. Croisan.

From Marion: William Galloway, Judge. Statement by Mr. Justice Eakin. This is a suit by Z. T. Bogard against Thomas N. Kennedy, Stella A. Kennedy, J. B. Kennedy and Frances Kennedy.

<p>From Lake: Henry L. Benson, Judge.</p> <p>Statement by Mr. Justice Ramsey.</p> <p>This is a suit in equity brought by the state against the Warner Valley Stock Company et al., defendants and respondents, and W. M. Harvey, Jerry Harrington, J. E. Dunnavin, John P. Barry, Frank B. Houston, Pliney E. Taylor, Peter Tonningsen, Charles Tonningsen and M. A. Poindexter, defendants and appellants, to obtain a decree for the cancellation and delivery up of certain deeds, certificates of sales, and conveyances made by the state, etc. The court below-granted a decree against the state, and it also denied a motion made by certain of the defendants for a decree on the pleadings, etc., and these defendants appeal. The facts are stated in the opinion of the court.</p>

Prom Marion: Percy B. Kelly, Judge. Statement by Mr. Chief Justice McBride. • This is an action by W. A. Wiest against School District No. 24 of Marion County, Oregon, for libel.

<p>Mechanics’ Liens—Right to Lien—Materialmen.</p> <p>1. A materialman or laborer, to be bound by a stipulation in the principal building contract against liens against the building, must have assented thereto, or at least notice of the stipulation must have been brought home to him.</p> <p>[As to stipulation in building contract against mechanics’ liens as precluding contractor from filing lien, see note in Ann. Cas. 1913E, 562.]</p> <p>Mechanics’ Liens — Bight to Lien — Materials Lienable.</p> <p>2. Though erude material for the manufacture of an article for the market generally without reference to any particular structure is not lienable against the building in which it is used, yet, where cement and plaster are furnished for the manufacture of blocks and tile for a particular building, they are lienable against such building when so used.</p> <p>Mechanics’ Liens — Notice of Lien — Effect of Error.</p> <p>3. In a notice of mechanic’s lien for $1,871.95, a duplicate charge of $390 and a failure to credit $215 for saeks returned, both occurring through error of a competent bookkeeper, do not render the lien void.</p>

From Clackamas: James U. Campbell, Judge. Statement by Mr. Justice Ramsey. This is an action by Victor Wasiljeff against tbe Hawley Pulp & Paper Company, a corporation, to recover damages for personal injuries, alleged to bave been caused by the negligence of tbe defendant. A verdict and a judgment in favor of tbe plaintiff for $2,065 were rendered in tbe court below.

From Clatsop: James A. Eakin, Judge. Statement by Mr. Justice Bean. Tbis is an action by Bandal Browning against the Smiley-Lampert Lumber Company, for damages for a personal injury. The cause was tried before a jury. At the close of plaintiff’s evidence, the court entered a judgment of nonsuit, from which plaintiff appeals.

<p>Wills—Execution—Attestation.</p> <p>1. Evidence held to show that the testator duly executed the will and acknowledged it before the attesting witnesses.</p> <p>Wills—Execution—Presumptions.</p> <p>2. In case of a holographic will, where it appears to have been attested and executed in accordance with the requirements of the law, there is a strong presumption in favor of its validity, notwithstanding the absence of an attestation clause.</p> <p>[As to what are olographic and holographic wills, see notes in 52 Am. Dee. 591; 104 Am. St. Eep. 22.]</p> <p>Wills—Probate—Contest.</p> <p>3. Where a will probated in short form is contested, the proponents must re-probate the same de novo by original proof, but the contestant’s petition may waive or admit some of the necessary facts attending the probate, in which case the proponents need not prove them, and hence, where the petition contesting a will specifically attacked it on the ground that it was not properly attested and that it was executed by reason of the beneficiary’s undue influence, the issues of testamentary capacity and of the execution of the will by the decedent are waived.</p> <p>Wills—Contest—Undue Influence—Burden of Proof.</p> <p>4. Where a will was executed and acknowledged in the absence of the principal beneficiary, the testator at that time managing his own affairs, the contestants have the burden of proving undue influence.</p> <p>■ [As to presumption of undue influence, see note in 21 Am. St. Eep. 94. See, also, 31 Am. St. Eep. 670.]</p>

<p>Homestead — Loss or Waiver — Conveyance.</p> <p>1. Under Section 221, L. O. L., providing that the homestead, exempt from judicial sale, must be the actual abode of and owned by the family or some member thereof, the conveyance of the homestead to the debtor’s son, a minor member of the family, did not abrogate the homestead right.</p> <p>[As to what constitutes abandonment of homestead, see notes in 60 Am. Dec. 607; 36 Am. Rep. 728; 102 Am. St. Rep. 388.]</p> <p>Homestead — Nature of Right — -Statutory Provisions.</p> <p>2. Statutes exempting homesteads from forced sale on judicial process should receive such a construction as to carry out the beneficent policy of the legislature.</p> <p>Homestead — Enforcement of Right — Time for Making Claim.</p> <p>3. The exemption of the homestead being from judicial sale only, and not from the lien of the judgment or the levy of an execution, the notice of claim thereof required by Section 224, L. O. L., may be made at any time prior to the sale.</p> <p>[As to divestiture of judgment lien, which has attached, by subsequent occupation of land for homestead purposes, see note in Ann. Cas. 1913B, 1147.]</p>

<p>Fraud—Actions—Pleading.</p> <p>1. In an action for damages for deceit, the complaint held to state a cause of action, though containing statements which did not constitute fraud and some indefinite allegations.</p> <p>[As to actions to recover for false representations, see note in 18 Am. St. Rep. 555.]</p> <p>Fraud—Actions—Evidence.</p> <p>2. Evidence that the name of a defendant appears on the outside of a prospectus which appears to have been issued by a corporation as a director thereof does not sustain a cause of action against him for fraud in the prospectus, when there is nothing to connect him with its issuance or circulation.</p> <p>[As to personal civil liability of officer or director to person injured by tort of corporation, see note in Ann. Cas. 1913D, 1058.]</p> <p>Fraud—Actions—Questions for Jury. »</p> <p>3. Evidence that a defendant assisted in preparing a prospectus for a corporation containing fraudulent representations is sufficient to go to the jury as against such defendant.</p> <p>[As to fraud as a question of law or fact, see note in 1 Ann. Cas. 446.]</p> <p>Fraud—Elements in General.</p> <p>4. An action of deceit cannot be maintained, unless the representations were false, and either known by the maker to be false or made recklessly as of his own knowledge, with the intent that they should be acted on by the party seeking relief, and sueb party believed them, acted upon them, and was injured.</p> <p>Corporations — Officers and Ageiits — Liability for Corporate Acts.</p> <p>5. Where a corporation and one or more of its officers or agents have been guilty of fraud, both the corporation and such officers or agents are liable; but a director or other officer who had no part in making the representations is not liable.</p>

<p>From Tillamook: Percy E. Kelly, Judge.</p> <p>Statement by Mr. Chief Justice McBride.</p> <p>This is an action by S. S. Johnson against the Miami Lumber Company, a corporation, to recover for the reasonable value of legal services rendered defendant. The complaint, in substance, alleges that between October 5 and December 25, 1911, plaintiff, at the instance and request of defendant, rendered certain legal services for defendant in the trial of a certain case in the United States District Court; that the reasonable value of such services and of plaintiff’s expenses in connection therewith was the sum of $500; that defendant has paid plaintiff’s expenses and the further sum of $45, leaving due the sum of $455.</p> <p>Defendant answered, admitting that plaintiff rendered the services alleged, but denying the value thereof, and set up as an affirmative defense that at all the times from April 1, 1909, to January 1, 1912, plaintiff and C. W. Talmage were the retained attorneys of defendant under and by virtue of a contract with them, whereby they agreed to attend to all defendant’s business in the courts of the State of Oregon for the sum of $30 per month, and their necessary expenses, and that the litigation for which plaintiffs seeks to recover in this action was litigation arising and conducted under the terms and conditions of said contract, alleging payment under the terms of that agreement.</p> <p>The plaintiff’s reply admitted the making of the agreement, but alleged that on the 23d day of November, 1911, there was a disagreement between plaintiff and certain agents of defendant in Tillamook County; that on said date plaintiff wrote defendant that unless one of its agents was discharged from its employ defendant must accept the resignation of plaintiff, to take effect on the 30th day of September, 1911; that said letter was received by defendant prior to the date last mentioned; that upon receipt of said letter of resignation, the defendant, unknown to plaintiff, did not discharge said employee, and failed to inform plaintiff whether or not his resignation was accepted, but did immediately notify its agent in Tillamook and C. W. Talmage, its attorney, that plaintiff had resigned and was no longer in its employ; that the said agents of defendant did not notify plaintiff that his resignation was accepted; but that defendant and its attorney Talmage, in order to obtain the legal services of plaintiff at only trifling costs in a very important law action, fraudulently represented and led plaintiff to believe by acts and words that he was still retained as attorney, and did not notify him that his resignation had been accepted until after his services in the law action had been rendered, thereafter informing him that his resignation had been accepted as of September 30, 1911.</p>

<p>Jury — Selection of Jury List — Jurisdiction.</p> <p>Under Laws of 1913, page 768, Section 3, conferring on the board of eounty commissione'rs of Multnomah County all the powers previously exercised by the County Court sitting for the transaction of eounty business, and page 769, Section 4, conferring on the Circuit Court of the fourth judicial district all the judicial jurisdiction previously exercised by the eounty judge and county court of Multnomah County, the duty of making a jury list devolves upon the board of county commissioners, being within Section 937, subdivision 9, L. O. L., giving the County Court power to transact county business, and to have the general care and management of eounty property, funds and business.</p>

<p>Assignments for Benefit of Creditors—Presentation of Claims—Time for Presentation'.</p> <p>1. Under Section 7554, L. O. L., requiring an assignee for creditors to give notice by publication for at least, six weeks and by mailing ’ to each known creditor, requesting him to present his claim under oath within three months, though such a notice properly required claims to be presented within three months from its date in order to participate in the first distribution of proceeds, the claimant has at least three months from the first publication, unless the claimant has sooner received notice by mailing, within which to present his claim.</p> <p>[As to legal meaning of “require” in statute relating to notice to creditors of decedents, see note in Ann. Gas. 1912A, 1239.]</p> <p>Time—Presentation of Claims—-“Month.”</p> <p>2. Under Section 7544, L. O. L., requiring presentation of claims to an assignee for creditors within three months from notice, and Section 531, providing that the time within which an act is to be performed is computed by excluding the first day and including the last, unless the last is a nonjudicial day, in which ease it is also excluded, where the first publication of the assignee’s notice was on October 12, 1910, a claim presented on January 12, 1911, was in time; a “month” meaning a calendar month, unless a contrary intent is indicated.</p> <p>Appeal and Error — Reference—Review—Questions of Fact — Findings by Court.</p> <p>3. Where the findings of a referee on a claim against an insolvent are properly set aside for error therein, and the testimony of the claimant tends to support the amended findings made thereupon by the court, such findings are conclusive on appeal.</p> <p>[As to from what judgments or orders assignee for benefit of creditors may appeal, see note in Ann. Cas. 1914A, 1236.]</p>

From Multnomah: William L. Bradshaw, Judge. • Statement by Mr. Justice Bean. This is an action by W. J. Cook and E. L. Clark, a copartnership doing business' under the firm name and style of Cook & Clark, against J. D. Gordon, to recover a broker’s commission. The cause was tried before the court without the intervention of a jury. The court found for plaintiffs and rendered judgment against the defendant for $9,300, from which the latter appeals.

<p>Taxation — Tax Deeds — Validity—Presumptions and Burden of Proof.</p> <p>1. Unlike a sheriff’s deed on sale of land for delinquent taxes, his deed on sale of land bid in by the county is not prima facie evidence of regularity of the proceeding, and one claiming thereunder must show that every step necessary to vest complete title in the county has been complied with.</p> <p>[As to recitals in tax deeds and their effect as evidence, see note in 31 Am. St. Rep. 233. See, also, note in 28 Am. St. Rep. 19.]</p> <p>Taxation — Tax Titles — Suits—Evidence. .</p> <p>2. In a suit to quiet title to land, a party claiming title under a sheriffs deed to land bid in by the county for taxes is not entitled to a decree in his favor, in the absence of evidence that any warrant was ever issued by the County Court for the sale of taxes, or of any notice of sale, or of the certificates of sale whieh the law requires to be given the purchaser at a tax sale.</p>

From Multnomah: Henry E. McGinn, Judge. This is a proceeding by R. M. Vaughan against the Canby Canal Company, a corporation, to cancel a judgment against the plaintiff. The facts are set forth in the opinion of the court.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Ramsey, Tbis is an action by tbe Astoria Southern Railway Company, a corporation, against tbe Pacific Surety Company, a corporation, and S. A. Cobb to recover from tbe defendants tbe sum of $20,000 upon a surety company bond. In tbe court below there was a judgment in favor of defendants, and plaintiff appeals.

Original proceeding in the Supreme Court by V. L. Gibson for mandamus to compel Thomas B. Kay, State Treasurer, to pay a certain warrant issued by the Secretary of State for legal services said to have been performed by Claude Mc-Colloch under direction of the corporation commissioner, the claim having been assigned to petitioner.

Prom Multnomah.: Robert G. Morrow, Judge. Statement by Mr. Justice Eailin. This is an action by W. W. Myers, administrator of the estate of Edward Swanson, deceased, against the Portland Ry. Light & Power Co. to recover damages for the death of Edward Swanson, alleged to have been caused by an electric shock received by him while in the employ of the defendant.