Volume 70 — Oregon Reports

<p>Courts—Federal and State Courts—Concurrent Jurisdiction.</p> <p>1. When either a state or federal court first secures concurrent jurisdiction of a cause, the other cannot interfere with or control the process of the first, and any attempt to do so before a final decision is reached is void.</p> <p>[As to conflicts of courts of concurrent jurisdiction, see note in 29 Am. St. Rep. 310. As to right to control action as between two courts of concurrent jurisdiction, see note in Ann. Gas. 1912A, 150.]</p> <p>Judgment—Conclusiveness—Identity of Subject Matter.</p> <p>2. A decree of the Circuit Court of the United States for the Western District of Washington determining that defendants, under a license from the fish commissioner of Washington, had the exclusive right to maintain at places specified set nets for salmon until March 31, 1912, does not bar a suit in Oregon, after the date named, to enjoin obstructions of fishing rights at the same places under the laws of Oregon; the proper court having meantime decided that the boundary was so located as to include the places in question in Oregon, instead of Washington.</p> <p>Courts—Jurisdiction—Determination—Allegations in Pleadings.</p> <p>3. The authority of a court to hear and determine a cause depends upon the allegations of the initiatory pleading, and not upon the facts,</p> <p>and an error in determining the jurisdiction does not usually render the judgment void, but voidable only.</p> <p>Navigable Waters—Riparian Rights—Access to Water.</p> <p>4. As an incident to the lawful occupation of lands, one border of which is the low-water line of the Columbia River, the occupant has the private right of access at the sites occupied to and from the stream.</p> <p>[As to waters as boundaries, see note in 10 Am. Dee. 385. As to nature of riparian rights and lands to which they attach, see note in Ann. Cas. 1913E, 709.]</p> <p>Navigable Waters—Ownership of Bed—Extent.</p> <p>5. The margin of Oregon’s ownership of the bed of a navigable stream is the line of ordinary high water, and the state may convey the part between ordinary high and low water to the exclusion of the riparian rights of the upland owner.</p> <p>Fish—Exclusive Rights—Owners of Tidelands.</p> <p>6. A tideland owner on a navigable stream has the exclusive right to draw a seine on his own land; but he cannot exercise any prerogative in the manner of catching the fish differing from that which may be legally asserted by every other citizen of the state.</p> <p>[As to power of states to regulate taking of fish in tidewaters, see note in 23 Am. St. Rep. 837.]</p> <p>Monopolies—Exclusive Rights—Injunction.</p> <p>7. Under Sections 5272, 5283, 5294, 5298, 5303, 5304, L. O. L., providing for licenses for fishing salmon, the fees for licenses to be placed in a hatchery fund, and the place of operation under a license to be designated by the number of the license placed on the bank of the river, or on a buoy, the maintenance in a river, under a license, of rocks to which buoys are attached, a cable to which a boat may be fastened for fishing operations, and other appliances, tend to create an exclusive right of fishing, and are properly enjoined.</p> <p>Monopolies—Exclusive Right of Fishery.</p> <p>8. An exclusive right of fishing in a navigable stream cannot be granted to any person under a Constitution forbidding the creation of a monopoly in the pursuit of a lawful undertaking.</p>

<p>Constitutional Law—Negligence—Due Process of Law—Liability for Accident.</p> <p>1. The provision of Laws of 1911, page 481, Section 13, authorizing the recovery of actual damages from fires which were caused or escaped accidentally or unavoidably, is unconstitutional as authorizing a taking without due process of law, in violation of the Fourteenth Amendment of the United States Constitution.</p> <p>[As to what is due process of law, see notes in 24 Am. Dec. 538; 20 Am. St. Rep. 554.]</p> <p>Negligence—Actions—Question for Jury.</p> <p>2. In an action for injuries from fire which spread from defendant’s land to plaintiffs’, evidence held to present a question for the jury whether defendant was negligent in failing to extinguish the fire on his own land.'</p> <p>[As to contributory negligence in case of fire loss, see note in 32 Am. Rep. 89.]</p> <p>Negligence—Actions—Issues and Proof.</p> <p>3. Under Section 97, L. O. L., providing that no variance between the pleadings and proofs is deemed material unless it has actually misled the adverse party, and Section 99 providing that when a material allegation is unproved, not in some particulars only, but in its entire scope and meaning, it is not a variance but a failure of proof, though a pleading alleged that a fire was kindled on defendant’s land on or about August 30th, evidence that the fire started August 19th, and smoldered till August 30th, when a wind caused it to become a great flame and to spread to plaintiffs’ premises, was admissible.</p> <p>Appeal and Error—Review—-Harmless Error—Instructions Cured by Verdict.</p> <p>4. Error in instructing that, if fires were caused or escaped accidentally or unavoidably, civil action may lie only for the actual damages sustained, and in refusing to instruct that there could be no recovery for fire resulting accidentally or unavoidably, is cured by a special verdict finding that the fire in question was permitted to spread from defendant’s land to plaintiffs’ through willfulness or negligence.</p>

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Moore.

From Coos: John S. Coke, Judge. This is an action by John A Parker, administrator of the estate of George H. Parker, deceased, against the C. A. Smith Lumber & Manufacturing Company, a corporation, and the City of Marshfield, a municipal corporation. From a judgment for the defendants, plaintiff appeals. The facts are set forth in the opinion of the court.

<p>Adverse Possession—Exclusiveness of Possession—Recognition of Mortgage.</p> <p>1. The recognition by one claiming title by adverse possession of the right of a mortgagee does not affect the claim of adverse title after the claimant has acquired the right of the mortgagee.</p> <p>[As to what amounts to color of title sufficient to sustain adverse possession, see notes in 14 Am. Dec. 580; 88 Am. St. Rep. 701.]</p> <p>Adverse Possession—Character of Possession—Claim of Title.</p> <p>2. Fencing a lot, building thereon, and occupying it exclusively sufficiently indicates an intention to claim title adverse to all the world.</p> <p>[As to what is essential to adverse possession, see notes in 28 Am. St. Rep. 158; 88 Am. St. Rep. 701.]</p> <p>Appeal and Error—Review—Questions of Fact—Findings by Court.</p> <p>3. Under Section 159, L. O. L., providing, in actions at law, that the findings of fact by the court are of the same force and effect as a verdict, and may be set aside in the same manner, they are conclusive on the Supreme Court, if there is any competent evidence to sustain them.</p> <p>Ejectment—Right of Action—Title of Plaintiff.</p> <p>4. A deed executed by the attorney of the grantors is, in the absence of proof of any power of attorney or other instrument in writing from the grantors to the attorney, insufficient to constitute a link in the chain of title of plaintiff in ejectment.</p> <p>Appeal and Error—Review—Questions of Fact—Findings by Court.</p> <p>5. Where defendants in ejectment produce evidence in support of the claim of adverse possession for more than 16 years, findings by the trial judge in their favor, being deemed a verdict, are conclusive on the Supreme Court under Article TO, Section 3 of the Constitution, as amended (see Laws 1911, p. 7), providing that no question of fact tried by a jury shall otherwise be re-examined, unless the court can affirmatively say there is no evidence to support the verdict.</p> <p>[As to weight in appellate court of finding of judge as to amount of damages as compared with verdict of jury, see note in Ann. Cas. 1913C, 178.]</p>

From Douglas: James W. Hamilton, Judge. This is a suit by the Southern Oregon Company against George K. Quine, as sheriff and tax collector of Douglas County, Oregon. From a decree in favor of defendant, plaintiff appeals. The facts appear in the opinion of the court.

From Multnomah: George N. Davis, Judge. This is a suit by G, Zanello & Son against the Portland Central Heating Company, a corporation, P. A. Williams, Robert R. Sheay, L. H. Tarpley and Albert Cleveland. From a decree in favor of defendants, plaintiffs appeal. The facts are set forth in the opinion of 'the court.

From Jackson: Frank M. Calkins, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action at law by H. L. White against A. , C. Geinger to recover money in which issue was joined by the defendant, and the litigation proceeded to judgment, which was rendered January 3, 1913. No error whatever is predicated concerning the proceedings up to and including the rendition of judgment.

From Multnomah: Henry E. McGinn; Judge. Department 1. Statement by Mr. Justice Bean. This is an action by J. B. Haviland against M. M. Johnson to recover money. It was commenced in the Justice’s Court for the district of Portland, where plaintiff obtained a judgment. Upon appeal to the Circuit Court the cause was tried by the court without the intervention of a jury, and a judgment rendered in favor of the'plaintiff, from which the defendant appeals.

From Marion: William Galloway, Judge. Tbis is a suit by J. L. Stotts and Grace Stotts, bis wife, against William Dicbdel, Otto Faulk and Irwin Lamb. From a decree dismissing the suit, plaintiff appeals. The facts are fully set forth in the opinion of the court.

From Polk: Webster Holmes, Judge. Department 2. Statement by Mr. Justice Eakin. The defendant, Louis Davis, was'indicted for murder in the first degree, to which he entered a plea of not guilty. Trial was had resulting in a verdict of murder in the second degree. Defendant and his wife were separated, and the wife was at the home of her parents, Mrs. Eliza J. Stewart and G. M. Stewart, near Ballston, in Polk County, Oregon.

<p>Adverse Possession—Actual Occupancy—Occupancy by Agent.</p> <p>1. Possession by an agent is the possession of the principal, for the purpose of acquiring title by adverse possession, though the principal never personally occupied the land.</p> <p>[As to right to maintain ejectment against servant or agent in actual possession of premises, see note in Ann. Cas. 1913C, 356.]</p> <p>Adverse Possession—Exclusiveness of Possession.</p> <p>2. Where a 100-acre tract inclosed by fence was occupied by an agent for his principal till the principal sold him a seven-acre tract out of it, including the land in dispute, after which he continued to occupy the seven acres as his own land, and the remainder as agent, though for a time the entire 100 acres were inclosed by a common fence and the agent lived on a portion other than that he had purchased, there was no such common or mixed possession by the principal and agent as interrupted the continuity of disseisin of the former owner of the land in dispute.</p> <p>[As to possession of part as possession of whole, see note in 125 Am. St. Rep. 302.]</p>

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by Walter Scibor against the Oregon-Washington Railroad & Navigation Company, a corporation, for personal injuries received during an arrest of the plaintiff.

From Marion: William Galloway, Judge. This is a suit by L. A. Williamson and Nettie Williamson, his wife, against A. G. Roberts. From a decree in favor of plaintiffs, defendant appeals. The facts are fully stated in the opinion of the court.

From Tillamook: Webster Holmes, Judge. Department 1. Statement by Mr. Justice Moore. This is a special proceeding by N. McMillan to review the action of the County Court of Tillamook County in the matter of locating a county road across the premises of the plaintiff and not allowing him any damages caused thereby.

From Multnomah: Frank M. Calkins, Judge. This is an action by Albert E. Kern against Francis Feller. From a judgment of nonsuit, plaintiff appeals. The facts are fully stated in the opinion of the court.

From Multnomah: George N. Davis, Judge. The defendant, J. Jensen, was indicted for an assault with intent to commit rape on a female child of the age of four years, and convicted of simple assault, and appeals.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Ramsey. This is a suit in equity by George S. Tate against the North Pacific College, a corporation, for a decree requiring the defendant to issue to the plaintiff a diploma, and to confer upon him the degree of Doctor of Dental Medicine. The court below rendered a decree in favor of the defendant. The plaintiff appeals. The facts appear in the opinion of the court.

<p>Partition—Suits—Mode of Actual Partition—Statutory Provisions.</p> <p>1. Under Section 443, L. O. L., providing that in making partition, the referees shall divide the property and allot the portions to the respective parties, quality and quantity considered, and Section 444, authorizing the court to confirm or set aside the report in whole or in part, it is the duty of the referees to apportion the land in value according to the respective interests, without regard to the acreage, and, when this is not done, the report should be set aside.</p> <p>[As to partition of property of decedents, see note in 41 Am. St. Rep. 140; 119 Am. St. Rep. 586.]</p> <p>Partition—Suits—Mode of Actual Partition—Equality of Value.</p> <p>2. In a suit for partition, a decree giving to the parties acreage substantially in proportion to their respective shares, but giving to parties who are entitled to one fifth each, respectively, land worth $3,125, $3,425, $2,958.40, and to a party entitled to two fifths land worth $3,884.50, is reversible error.</p> <p>[As to allowance for improvements in partition, see notes in 62 Am. Dee. 484; 81 Am. St. Rep. 185.]</p>

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by A. S. Paulson against the Oregon Surety & Casualty Company, a corporation, and the Union Guarantee Association, a corporation, to declare a trust, and for an accounting. From a decree for defendants, plaintiff appeals.

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action of replevin by J. W. Coach against W. W. Gage, as sheriff of Coos County, to recover possession of a stock of goods seized by defendant, as sheriff, upon an execution against Tawse & Button, who had sold them in bulk to Tawse & Baxter, who in turn sold them in bulk to plaintiff.

From Marion: William Galloway, Judge. This is a suit by F. D. Bean against G. W. Eyre for an accounting. There, was a decree in favor of defendant, and plaintiff appeals. The facts are fully stated in the opinion of the court.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Burnett. Complaining as partners, the plaintiffs, John Turk, T. J. Hopkins, James McGlothlin and James W. Turk, allege that the defendant, F. L. Botsford, representing himself to be the agent of a certain corporation, employed them to go from Portland to Coos County, there to manufacture railroad ties from timber located in that county.

From Multnomah: Henry E. McGinn, Judge. In Banc. Statement by Mr. Justice Ramsey. This is an action by F. F. Williams against the Pacific Surety Company and others. From a final order and judgment refusing to set aside a judgment in favor of plaintiff and defendant A. H. Ford, against defendant Pacific Surety Company and another, and denying leave to file an answer, the Pacific Surety Company appeals.

From Marion: Percy R. Kelly, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by Harvey Kellogg against Frank M. Ford, for malicious prosecution.

<p>Parties—Defendants—Persons Who Must be Sued.</p> <p>Where, by a contract with the government reclamation service, plaintiff agreed to convey its lands to a trustee, to be conveyed by him on the same conditions as United States lands included in the same reclamation project, and in a suit against the trustee to enjoin the sale of plaintiff’s lands at public auction, both the contract and trust deed are set out, and plaintiff’s real grounds for relief are based on breach of the contract by the reclamation, the complaint is subject to demurrer for failure to make the United States a party.</p>

<p>Vendor and Purchaser---Abstracts of Title—Requisites and Sufficiency.</p> <p>1. A good abstract of title should show a synopsis of the data as to the title which, when verified, will establish it, and it must contain a reference to all conveyances, transfers or other facts relied upon as evidence of title, but need not contain the evidence.</p> <p>[As to how far back purchaser is bound to search record title of his vendor, see note in Ann. Cas. 1914A, 1288.]</p> <p>Evidence—Expert Testimony—Effect.</p> <p>2. Expert testimony as to the defects in an abstract of title can be considered by the court in the nature of argument only, and the court must be the judge whether the abstract, when verified, shows a good title.</p> <p>[As to whether expert witness may give opinion as to ultimate fact, see note in Ann. Cas. 1914B, 191.]</p> <p>Partition-—Actions for Partition—Parties—Nonresident Wives of Owners.</p> <p>3. Under Section 7306, L. O. L., providing that a woman being an alien shall not be barred of her dower, and that any woman residing out of the state shall be entitled to dower of the lands of her deceased husband in the state of which he died seised, nonresident wives- of owners of land involved in a partition suit are not necessary parties to the suit.</p> <p>[As to the effect of dower upon partition, see note in 82 Am. St. Rep. 863. As to parties in proceedings to partition property of decedents, see note in 41 Am. St. Rep. 142.]</p> <p>Vendor and Purchaser—Title of Vendor—Names of Parties to Conveyances.</p> <p>4. A discrepancy between full names and initials in conveyances as shown by the abstract of title to land sold, where the initials are those of the parties apparently intended, and of the parties in the chain of title, having stood for more than 10 years without question, is immaterial.</p> <p>[As to presumption that letter constitutes name, see note in Ann. Cas. 1914A, 1115.]</p> <p>Vendor and Purchaser—Abstract of Title—Requisites and Sufficiency.</p> <p>5. An abstract of title which states that a decree of partition confirms the report of the referees which sets off lots described to certain persons named is sufficient, as against the objection that it does not show the report of the referees or decree in partition.</p> <p>Vendor and Purchaser—Title of Vendor—Sufficiency.</p> <p>6. That certain lots were conveyed before the platting and dedication of a donation land claim does not show that they are not included therein, where the abstract shows that much of the land included in the donation land claim was disposed of as if title had been received from the government before it was in fact received, and attempts were made after title was received to confirm the titles previously granted.</p> <p>Brokers—Compensation—Performance of Contract.</p> <p>7. Where a real estate agent procures a purchaser for land who afterward declines to accept it because of alleged defects in the owner’s abstract of title, but the abstract in law shows good title, and the agent has entered into no written contract with the purchaser as authorized by his contract of employment by the owner, so that the owner was unable to enforce specific performance, the agent is not entitled to commission.</p> <p>ON PETITION FOR REHEARING.</p> <p>Trial—Reception of Evidence—Effect of Admission.</p> <p>8. An exhibit admitted in evidence may be considered for what it contains, regardless of who introduced it.</p> <p>Brokers—Actions for Compensation—Issues.</p> <p>9. In an action by a broker for commission on a sale of real estate, which failed because of alleged insufficiency of the abstract furnished by defendant, any defects in the title offered must be made specific issues and tried by the court, and plaintiff must allege in what respects the abstract is defective.</p> <p>Brokers—Right to .Compensation—Performance of Contract.</p> <p>10. Where a broker is employed “to make sale of the real property * * and to execute a binding contract of sale,” the fact that he brought the owner and a purchaser together, and that the latter made a payment, does not entitle the broker to his commission when the sale is not consummated because of refusal of the purchaser to accept a title which is good in law.</p> <p>[As to when a broker becomes entitled to commissions, see note in 28 Am. St. Rep. 546.]</p> <p>Frauds, Statute of—Operation and Effect—Part Payment.</p> <p>11. Though a part payment binds a contract of sale of personalty, it does not bind a purchaser of real estate; either a contract in writing or such part, performance as takes it out of the statute being essential.</p>

<p>Criminal Law—Reception of Evidence—Restriction to Special Purpose.</p> <p>1. On a trial of two defendants for murder, the refusal to restrict evidence of declarations made by one of them after the murder in the absence of the other to the declarant is error.</p> <p>[As to admissibility of confession of third person in criminal ease, see note in Ann. Cas. 1913E, 723.]</p> <p>Criminal Law—Trial—Presence of Defendant,</p> <p>2. The trial court has the power to make a nunc pro tunc order in the absence of defendant for the entry in the journal of a record of a verdict of conviction, but the practice is not to be commended.</p> <p>[As to necessity of the presence of the accused in trial of criminal case, see notes in 28 Am. Dec. 629; 68 Am. Dec. 219.]</p> <p>Criminal Law—Record—Presence of Defendant.</p> <p>3. The record case should affirmatively show that defendant was present when a verdict of conviction was received.</p>

Department 2. Original proceeding in Supreme Court. This is proceeding for mandamus by Minerva A. Jones and C. M. Jones, her busband, against Henry E. McGinn, one of tbe judges of tbe Circuit Court of tbe State of Oregon for tbe Fourth Judicial District. Tbe facts are fully stated in tbe opinion of tbe court.

From Columbia: James A. Eakin, Judge. This is a suit in equity by the Columbia City Land Company against Charles S. Ruhl to declare, determine and establish a boundary line between the lands of plaintiff and defendant. The Circuit Court rendered a decree for defendant, and plaintiff appeals. Respondent now moves to dismiss the appeal.

From Multnomah: Thomas J. Cleeton, Judge. In Banc. Statement by Mr. Chief Justice McBride. This is a suit by Elmira Simpson against Edwin V. O’Hara, Bertha Moores and Amedee M. Smith, constituting the Industrial Welfare Commission of the State of Oregon, the object of which is to have judicially determined the question whether an act passed by the legislature on February 17, 1913 (Sess.

<p>Pleading—Waiver of Objections—Variance.</p> <p>1. Where the agreement between defendant hospital association and S., plaintiff’s employer, set out in the complaint, provides that defendant shall provide for employees of S. treatment by any of the physicians employed by defendant in their respective localities and all necessary hospital service at adequate and well-appointed hospitals, and the contract introduced in evidence contains the same provisions, though the former contract has several unfilled blanks, which are filled in in the latter, the variance, not pointed out during the trial, is immaterial after the trial.</p> <p>Hospitals—Contracts—Actions for Breach—Questions for Jury.</p> <p>2. In an action' against a hospital association for breach of a contract with plaintiff’s employer to furnish hospital service, evidence held to present questions for the jury whether plaintiff received defendant’s permission to change to a hospital at Portland at which he claims to have been refused service, and whether he was still entitled to be received into a hospital at all.</p>

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Mr. Justice Bean. This is a suit by Edward Spath against M. A. Sales and William Sales, her husband, Ernest. D. Holgate and Eva D. Holgate, his wife, Andrew Brugger and Mrs. Andrew Brugger, his wife, Edgar E. Chipman and Mrs. Edgar E. Chipman, his wife, to quiet title to a tract of land described in the complaint. The Circuit Court granted a decree in favor of the plaintiff, and the defendants appeal.

From Klamath: Henry L. Benson, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by George G. Beed against the Western Union Telegraph Company to recover for personal injuries. Plaintiff was in the employ of the defendant as a laborer. Defendant was repairing its telegraph poles along its line, resetting some of them in cement and painting them.

Prom Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by J. S. Gill against the Columbia Contract Company, a corporation, to recover $3,000, as commissions on the sale of certain personal property.

<p>Municipal Corporations—Legislative Control—Constitutional Provisions.</p> <p>1. Article IV, Section la, of the Constitution, reserving to the legal voters of every municipality the powers of initiative and referendum as to all local, special and municipal legislation, and Article XI, Section 2, granting to the legal voters of every city and town power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state, do not alter the relations of municipal corporations to the state, but leaves them mere agencies of the state, which may by general laws control them even to the extent of amending their charters.</p> <p>Municipal Corporations—Definition.</p> <p>2. Certain attributes of state sovereignty may be delegated to municipal corporations, as a “municipal corporation” is a body corporate and politic, established by law to share in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district incorporated.</p> <p>Constitutional Law—Construction of Provisions—Grant or Limitation of Power.</p> <p>3. The state Constitution is not a delegation of power to the legislative branches of the government, but a limitation of power otherwise plenary.</p> <p>Municipal Corporations—Delegation of Power—Powers and Functions —Building and Owning Railroad.</p> <p>4. The State may lawfully delegate to any of its municipal corporations its own power, which the Constitution does not prohibit, of building and owning railroads; the only question being whether the proposed legislation is for a public purpose.</p> <p>Municipal Corporations—Powers and Functions—Public Purpose.</p> <p>5. The determination by the citizens of a municipality by vote at an election in favor of bonding for the building of a railroad from the .city to a point ten miles distant will not be disturbed by the Supreme Court on the ground that the expenditure is not for a public purpose.</p> <p>[As to implied power of municipality to issue bonds, see note in Ann. Cas. 1913E, 37.]</p> <p>Municipal Corporations—Powers and Functions—Constitutional Provision.</p> <p>6. A contract by a city with an individual for the sale or lease to him of a railroad to be built by the city upon its completion does not violate Article XI, Section 9, of the Constitution, providing that no municipal corporation shall become a stockholder in any joint-stock company, corporation or association, or raise money for or loan its credit to, or in aid of, any such company, corporation or. association.</p>

From Coos: John S. Coke, Judge. Department 2. Statement by Me. Justice Eakin. R. (1. Case was charged in the justice’s court with the crime of peddling without a license, namely, with a two-horse wagon he did wrongfully and unlawfully, outside the corporate limits of any city and town, peddle to Jim Hayes a two-seated, open-.topped vehicle without first obtaining a license so to do, as provided by statute.

Original proceeding in Supreme Court.- In Banc. Statement by Mr. Justice Burnett.

From Multnomah: William N. Gate ns, Judge. Department 1. Statement hy Mr. Justice Ramsey. This is a suit in equity hy J. B. Elwert against William Reid and M. W. Parelius to obtain a decree setting aside a deed of conveyance of certain real property in the City of Portland, and to quiet title to certain other real property in said city. The court below rendered a decree for the defendants and the plaintiff appeals.

Prom Multnomah.; Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by the Pacific Bridge Company, a corporation, against the Riverside Rock Company, a corporation, and is brought to recover $10 a day rent as penalty from the defendant for delay of 112 days in returning to plaintiff a steam shovel after the term for which it was rented had expired.

From Multnomah.: George N. Davis, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by Cornelius Tonseth against the Portland Ky., L. & P. Co., a corporation, to recover damages for a personal injury.

From Multnomali: Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Moore.

From Marion: William Galloway, Judge. This is an action by O. B. Baskin against Marion County. From a judgment in favor of plaintiff, defendant appeals. Bespondent’s motion to dismiss the appeal was allowed April 28, 1914, without a written opinion. Appellant now files application for a rehearing.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Jttstice Eakin. This is an action by the Hosford Transportation Company against the City of Portland.

.From Crook: William L. Bradshaw, Judge. The defendant, John M. McPherson, was indicted with Judd McPherson and Mace Newsham for larceny, and having demanded separate trials, upon conviction, defendant appeals.

From Jackson: Frank M. Calkins, Judge. Department 1. Statement by Mr. Justice Burnett. Alleging that a deed of date September 30, 1911, from defendant W. Gr. Myers to Ms wife, Lula A. Myers, for certain lands, was made without any consideration whatever, and with the intent on the part of the grantor, in which the grantee knowingly participated, to defraud the creditors of the former, the plaintiff, B. Gr. Lane, as trustee in bankruptcy of W. Gr.

From Multnomah: Henry E. McGinn, Judge. This is a suit by A. Bettencourt against Enos Bettencourt for an accounting. From a decree in favor of defendant, plaintiff appeals. The facts are fully stated in the opinion of the court.

From Multnomah: Henry E. McGinn, Judge. This is a suit by Charlotta A. O’Connor against Mary Towey, and Patrick Towey, by J. H. Fox, his guardian, intervenes. The lower court rendered a decree in favor of defendant, Mary Towey, and plaintiff appeals. Respondent now moves to dismiss appeal. Motion denied. Afterward on May 19, 1914, the appeal is dismissed without costs to either party.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit by B. E. Thurman and Minerva Thurman, his wife, ag’ainst Multnomah County, a municipal corporation, City of St. Johns, a municipal corporation, defendants, and W. S. Kellogg, L. E. Bose and Whitney Bose, interveners.

<p>Master and Servant—Injuries to Servant—Actions—Questions for Jury.</p> <p>1. In an action against an employer for injuries from the falling ■ of an electric light pole on whieh plaintiff was climbing, it was a question for the jury whether it was negligence of the employer to permit a switch to be out of repair or removed from the pole, or to permit old poles to remain in use at the time of the accident without testing or repair.</p> <p>Master and Servant—Injuries to Servant—Actions—Question for Jury.</p> <p>2. In an action against an employer for injuries from the falling of an electric light pole on which plaintiff was climbing, evidence held to present a question for the jury whether plaintiff knew or ought to have known of the defective condition of the pole.</p> <p>[As to jury as judges of the law as well as the facts, see notes in 33 Am. Rep. 791; 42 Am. St. Rep. 290.]</p> <p>Master and Servant—Injury to Servant—Direction of Verdict—Con- * flicting Evidence.</p> <p>3. A motion for an instructed verdict for defendant, based on the defense that plaintiff was the foreman in charge of the poles and switch whieh caused the injury, upon whieh there was a dispute in the evidence, was properly denied.</p> <p>Trial—Instructions—Bequests—Instructions Already Given.</p> <p>4. The refusal of instructions that, if plaintiff knew that the pole on whieh he was injured was so dangerous that a prudent person would not climb it, or if an inspection would have disclosed such condition, he cannot recover, for the reason that he assumed the risk, that he is bound by allegations in the complaint that he is an electrician and lineman, and must be conclusively presumed to have known of the danger incident to that line of employment, and that it is not necessary to relieve defendant from liability that plaintiff should have been employed as foreman, but it is sufficient that he was employed as a lineman whose duty it was to discover and remedy defects in the line, is not error, where the grounds stated are fairly covered in the general instructions, so far as the evidence justified, the jury having been instructed that, if the plaintiff knew that defendant had no other servant, to inspect its poles and continued in the employment, he assumed the duty of testing the poles, and other instructions having been given as to burden of proof of defendant’s negligence, as to whether plaintiff was foreman, the defendant’s duty if plaintiff was not foreman, and the risk assumed by plaintiff.</p> <p>[As to 'what are proper subjects of instructions to jury, see note in 72 Am. Dec. 538.]</p>

From Douglas: James W. Hamilton, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is an action by R. M. Knight against O. H. Beyers to recover damages for the alleged willful and malicious conversion by defendant of certain personal property of plaintiff.

Prom Clatsop: James A. Bakin, Judge. This is a suit by Rosetta Cunningham against Prank Cunningham for divorce, on the ground of cruel and inhuman treatment. There was decree for plaintiff and an allowance to her of one-third of the real property, from which both appeal. The facts in this suit are fully stated in the opinion of the court.

From Baker: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action by C. T. Goodwin, as trustee in bankruptcy of the estate of the Co-Operative Trading Company, a corporation, against J. O. Tuttle.

From Wallowa: John W. Knowles, Judge. In Bane. Statement by Mr. Justice Ramsey. This is a suit by the Wallowa Lake Amusement Company, a private corporation, against Joseph L. Hamilton for specific performance of a contract. The court below rendered a decree in favor of the plaintiff for the relief prayed for by it, and also a decree of foreclosure of a mortgage in favor of the defendant on a counterclaim.

From Multnomah: Henry E. McGinn, Judge. Statement by Mr. Justice Moore. This is a suit by Eugene Kellogg against W. M. Smith to cancel a deed of real property, a promissory note, and chattel mortgage.

Original proceeding in Supreme Court. This is an original proceeding in mandamus by tbe National Council of tbe Knigbts and Ladies of Security against Henry E. McGinn, Judge of Department No. 3 of tbe Circuit Court of Multnomah County, Oregon. For cause as to why be has not settled tbe bill of exceptions, tbe defendant demurs to tbe alternative writ.

<p>Certiorari—Writ of Review—Service.</p> <p>1. Under Section 603, L. O. L., providing that any party to any proceeding before an inferior tribunal may have the decision thereof reviewed and Section 609, requiring the writ- of review to be served by delivering the original according to the direction thereof and a certified copy of the writ to be served by delivery to the opposite party at least ten days before the return of the original writ, a writ of review sued out by remonstrators in a proceeding before a district boundary board should be served on the petitioners who initiated the proceeding.</p> <p>[As to persons entitled to prosecute writ of certiorari, see notes in 103 Am. St. Rep. 110; Ann. Cas. 1914C, 126.]</p> <p>Certiorari—Writ of Review—Service.</p> <p>2. Under Section 609, L. O. L., providing for service of writ of review upon the opposite party in a suit or proceeding to be reviewed, a writ of review in proceedings before a district boundary board must be served not only on the county school superintendent, as secretary of the boundary board, but on each member of the board, though Section 55, L. O. L., relating to service of summons, provides that, if a proceeding be against a county or other public corporation, a copy of the summons shall be delivered to the clerk of the county or public corporation.</p> <p>[As to when the writ of certiorari issues and what is reviewable upon it, see notes in 12 Am. Dee. 531; 40 Am. St. Rep. 29.]</p>

<p>Divorce—Defenses—Misconduct of Plaintiff.</p> <p>In a suit for divorce, where defendant, files a counterclaim for divorce, and the evidence shows that both parties were in the habit of becoming intoxicated, that most or all of the altercations occurred when both were intoxicated, and that plaintiff’s reputation for chastity at her marriage was bad, which was known to defendant, a decree dismissing the complaint without cost to either party was proper.</p> <p>[As to recriminatory defenses in suits for divorce, see notes in 15 Am. Dec. 211; 86 Am. St. Rep. 333. As to degree of proof required to establish cause for divorce, see note in Ann. Cas. 1913B, 1216.]</p>

<p>Criminal Law—Trial—Conduct of Counsel—Action by Court.</p> <p>1. The persistent attempt of the state to force upon the attention of the jury evidence which the court had excluded is reversible error, though the court directed the jury to disregard the objectionable remarks.</p> <p>[As to improper argument of counsel justifying new trial, see note in 9 Am. St. Rep. 559. As to misconduct of attorneys at trial, and its effect, see note in 100 Am. St. Rep. 690.] .</p> <p>Criminal Law—Trial—Cautionary Instructions—-Necessity.</p> <p>2. In a prosecution for assault with intent to rape, where a memorial signed by 170 persons in a town of 1,000 or 1,500 inhabitants had been addressed to the prosecuting attorney and grand jury urging vigorous prosecution for crime and particularly for the crime in question, the refusal of an instruction to the jury not to rush blindly to a conclusion or to allow themselves to be swayed by passion or prejudice, and that it is not sufficient for the state to make out a strong probability of defendant’s guilt, but the state must convince by evidence beyond a reasonable doubt that defendant is guilty, is error.</p> <p>[As to what is reasonable doubt and instructions concerning it, see note in 48 Am. St. Rep. 566.]</p>

<p>Customs and Usages—Operations and Effect.</p> <p>1. In an action for a breach of contract to purchase flour, a custom of the plaintiff on purchases for future delivery of setting aside a quantity of wheat sufficient to be manufactured into the flour ordered cannot be considered, where the parties are not shown to have contracted with reference to it and no knowledge of it is imputed to the defendants in either pleadings or evidence.</p> <p>[As to effect and proof of customs and usages, see notes in 50 Am. Dee. 97; 18 Am. Eep. 204.]</p> <p>Sales—Breach of Contract—Damages—Measure.</p> <p>2. Where a contract for the sale of flour for future delivery does not call for the manufacture of particular wheat into the flour, the decline of price of wheat reserved for the order cannot be taken as an element of damages for breach of contract by the buyer.</p> <p>[As to measure of damages against vendee for refusing to perform his contract, see note in 67 Am. Dee. 275.]</p>

<p>From Baker: Gustav Anderson, Judge.</p> <p>In Banc. Statement by Mr. Justice Moore.</p> <p>This is a suit to determine an adverse interest in real estate. Tbe material averments of tbe complaint are to tbe effect tbat tbe plaintiff, Hazel D. Gaylord, is tbe owner in fee of a particularly described tract of land in Baker County, Oregon, wbicb premises are unoccupied; and tbat tbe defendants, Serene J. Carroll and Carrie, bis wife, and Charles C. Carroll and May, bis wife, assert an adverse interest in tbe real property. Tbe prayer of tbe bill is tbat tbe defendants be required to set forth any interest they have or either of them claims in tbe premises, and tbat such interest be decreed invalid.</p> <p>Tbe answer denied tbe material averments of tbe complaint, and for a further defense alleged in substance: Tbat tbe real property referred to was tbe homestead of Joseph E. Carroll, who resided on tbe premises and performed all tbe acts necessary to perfect bis right thereto. Tbat be made final proof in support of Ms entry October 19, 1911, and died intestate February 7, 1912. That there was issued in Ms name a final certificate July 26, 1912, and a patent for the land on the 14th of the following October. That since his death his widow, Sarah A., has died, and her dower estate in the real property was thereby extinguished. That the plaintiff is the stepdaughter of such entryman and has no interest in the premises. That the defendants Serene J. and Charles C. Carroll are the sons and only heirs of Joseph E. Carroll, deceased, and that they are the owners in' fee of the land.</p> <p>The reply denied the material allegations of the new matter in the answer, and further averred in effect: That, after the death of Joseph E. Carroll, his widow, Sarah A., who was a citizen of the United States, was appointed administratrix of his estate, but before the settlement thereof she died intestate, leaving surviving as her only heir the plaintiff herein, to whom she devised and bequeathed all her real and personal property, except a gift of $200. That, the final proof not having been approved until after the entryman’s death, his widow thereupon became entitled to the homestead in her own right, and, she having died intestate, the real property passed by devise to the plaintiff, who is the owner of the premises. A demurrer to the reply was sustained, and, the plaintiff declining further to plead, the court determined that the defendants were the owners in fee of the land and entitled to the immediate possession thereof. From this decree the plaintiff appeals.</p>

<p>Fraud—Elements—Damages to Person Defrauded.</p> <p>1. Where plaintiff has been induced by the fraud of defendants^ to give his promissory note for worthless corporate stoek, and the defendants have negotiated the note to an innocent purchaser, plaintiff has suffered damages entitling him to recover for the fraud, though the note is not yet due.</p> <p>[As to action to recover for false representations, see noth in 18 Am. St. Rep. 555.]</p> <p>Pleading—Demurrer—Admissions.</p> <p>2. An allegation of the complaint that one of the defendants was an agent of the corporate defendant and its officers and conspired with them in the sale of the corporate stoek to plaintiff must, for the purposes of a demurrer to the complaint, be assumed to be true.</p> <p>[As to stockholders’ subscriptions as affected by fraud, see note in 3 Am. St. Rep. 824.</p>

<p>Appeal and Error—Review—Discretion of Trial Court—Amendment of Pleading.</p> <p>1. The refusal of an offer, near the close of the trial, to amend the reply will not be reversed on appeal; the allowance of amendments being within the discretion of the trial court, which is reviewable only for abuse.</p> <p>Pleading—Amendment During Trial—Statutory Provision.</p> <p>2. Under Section 102, L. O. L., providing for amendment of pleadings before the trial and during the trial, amendments substantially changing the cause of action or defense cannot be allowed during the trial.</p> <p>[As to amendment of pleading as requiring new process, see note in Ann. Cas. 1913B, 831.]</p> <p>Pleading—Reply—Amendment.</p> <p>3. In an action for money due on a contract for the sale of horses, cattle, and other property, where the plaintiff interposed a general denial to the answer which set up the acceptance of a promissory note in payment and a surrender of the note in settlement of a shortage in the number of horses and cattle, a trial amendment to the reply, alleging that, at the time of the settlement alleged in the answer, plaintiff’s wife was not expected to live, and that, before he would gather the horses or look after them, he would let defendant have his note and count it settled, was properly excluded as it failed to set up either duress or undue influence in making the settlement.</p> <p>Contracts—V alidity—“Duress.”</p> <p>4. “Duress” is unlawful constraint whereby one is forced to do some aet against one’s will, and it may be duress of imprisonment, or by violence, or duress per minas, consisting in threats of imprisonment, etc.</p> <p>[As to what is and what is not duress, see note in 26 Am. Dee. 374.]</p> <p>Pleading—Issues and Proof—General Denial.</p> <p>5. Where the reply denies generally every allegation of new matter in the answer, the plaintiff may put in evidence any probative facts tending to disprove the material allegations of the answer.</p> <p>Contracts—Breach—Actions—Issues and Proof.</p> <p>6. Duress and undue influence are affirmative defenses which must be specially pleaded, and evidence to establish them is not admissible under a general denial.</p> <p>Trial—-Instructions—Instructions Already Given.</p> <p>7. When the instructions given cover properly all the issues in the case, the refusal of charges is not error, though they state the law applying to the case clearly.</p>

From Clackamas: James A. Eakin, Judge. Department 2. Statement by Mr. Chief Justice McBride. The plaintiff, Charles D.. Taylor, brought a suit to declare his marriage with defendant, Minnie N. Taylor void. On answer being filed by defendant, plaintiff moved to dismiss, which motion was granted; the court awarded defendant $2,500 suit money and $8,665 for maintenance while the suit was pending. From the order granting suit money and maintenance, plaintiff appealed.

<p>Navigable Waters—Title—Power of State.</p> <p>1. Though on the admission of the state into the Union it was. vested with title to lands under navigable waters, such title is subject, at all times, to the rights of navigation and fishery, and the state has no right to sell the beds of navigable streams in a way to interfere with their navigability.</p> <p>[As to grants by the states of the lands under navigable waters so as to interfere with eommeree, see note in 36 Am. St. Rep. 336.]</p> <p>Navigable Waters—Lands Under Water—Validity of Conveyance.</p> <p>2. Where land in the Willamette River, occasionally exposed in low water but usually under water, is sold by the state as tide land, the owner of the adjoining upland is entitled to have the conveyance set aside if it interferes with his riparian rights.</p> <p>[As to the test of the navigability of a stream or other body of water, see note in Ann. Cas. 1914B, 1067.]</p> <p>Costs—Persons Liable—Effect of Disclaimer.</p> <p>3. In a suit to set aside a conveyance of land in a navigable river, where the original grantee of the land disclaims title, costs or disbursements should not be taxed against him.</p>

<p>Mortgages—Conclusiveness—Matters Concluded.</p> <p>1. Under Section 756, L. O. L., making decrees other than certain kinds enumerated conclusive between the parties thereto and their representatives and successors in interest in respect to the matter directly determined by it, a decree forelosing a mortgage is conclusive that at the time of the decree the defendant owed plaintiff the amount adjudged as principal, interest, and attorneys’ fees, though the decree was entered upon confession.</p> <p>[As to the eonclusiveness of a judgment foreclosing a mortgage, see note in 18 Am. St. Rep. 790.]</p> <p>Mortgages—Consideration—Evidence.</p> <p>2. In a suit for an accounting and to compel the conveyance of land to plaintiff, evidence held to show, irrespective of a former decree to that effect, that plaintiff was indebted to defendant in the amount of a mortgage made to defendant and afterward foreclosed against plaintiff.</p> <p>Witnesses- Credibility—Falsus in Uno Falsus in Omnibus.</p> <p>3. When a witness deliberately swears to a material fact, and in a subsequent case admits that he swore to that' fact, but that his testimony was false, and does not claim that he was honestly in error in his evidence in the first instance, a court cannot rely on anything to which he testifies, unless he is strongly corroborated; the maxim “falsus in uno falsus in omnibus” being applicable.</p> <p>[As to credibility of witnesses, see note in 86 Am. Dec. 328. As to evidence to show bias or credibility of witness, see note in 91 Am. St. Rep. 193.]</p> <p>Judgment—Conclusiveness—Persons Concluded—Codefendants.</p> <p>4. A decree setting aside as fraudulent as to plaintiff a conveyance between codefendants, in a suit in which the codefendants joined in the answer and agreed in their evidence, is not competent evidence in a subsequent suit between the codefendants, since their interests were not adverse in the former suit.</p> <p>Fraudulent Conveyances—Enforcement of Reconveyance—Laches.</p> <p>5. Where plaintiff mortgaged and afterward conveyed land, as he asserts, to evade litigation with a third person, and in 1884 the grantee refused to convey a portion thereof at plaintiff’s request to a creditor of the latter, and in 1893 refused to convey to plaintiff, a suit by plaintiff in 1909 to compel reconveyance to him, after death of three persons familiar with the transactions, is barred by laches.</p> <p>[As to the enforcement in equity of stale claims, see note in Ann. Cas. 1914B, 314.]</p>

<p>Prom Yamhill: Percy R. Kelly, Judge.</p> <p>Department 1. Statement by Mr. Chief Justice McBride.</p> <p>This is an action by Roy Schaller against the Pacific Pace Brick Company, a corporation, for personal injuries sustained by plaintiff while operating a dry press brick machine in defendant’s factory. The circumstances out of which the injury arose are stated in the complaint in the following language:</p> <p>“That on, to wit, the 15th day of November, 1912, and for some time prior thereto, the above-named plaintiff was in the employment of the said defendant corporation as an operator of a certain dry press brick machine in said defendant’s factory hereinabove mentioned, in Yamhill County, State of Oregon; * * that at and during the times above mentioned the said defendant carelessly and negligently failed to keep said brick press machine in repair and in good running order, in that one of the cogs on a certain gear wheel of said machine was broken off and missing, and other cogs on said wheel were badly worn and defective, and in that the clutches and brakes on said machine were loose, insecure,.and defective, and that, by reason thereof, when the lever which controlled the motive power of said machine was moved or operated for the purpose of throwing the said machine out of gear and bringing it' to a stop, said machine, after it was brought to a stop, would and did at various times suddenly and unexpectedly go into gear and into operation; that, by reason of the said defects hereinbefore alleged, said machine on the said 15th day of November, 1912, and for some time prior thereto, became and was in a dangerous, insecure, and defective condition, all of which was well known to the said defendant company, but that, notwithstanding such knowledge on the part of said defendant, it carelessly and negligently permitted, allowed, and directed that said machine be used and operated, without due regard for the safety or welfare of the plaintiff herein; * * that on, to wit, the 15th day of November, 1912, said plaintiff, while in the employment of said defendant company, as aforesaid, and in obedience to the orders and directions of said defendant, put his, right hand into the said machine, while it was out of gear and not in-operation, for the purpose of filling the dies thereof with clay and earth, and that, while plaintiff’s said hand was in said machine, as aforesaid, the said machine, by reason of the defects hereinbefore alleged, suddenly and unexpectedly went into gear and operation, and thereby crushed, bruised, and injured the flesh, muscles, nerves, tendons, and bones, of plaintiff’s said hand and arm; that plaintiff, by reason of said injuries, does now suffer, and ever since said injuries were received has suffered, great physical pain and mental anguish, and is permanently injured and disfigured.”</p> <p>The machine is described in defendant’s brief as follows:</p> <p>“It may be defined as a machine which presses and molds loose clay into bricks. The loose clay enters at the top of the machine and, passing through it, descends into charger boxes or molds, where it is, by means of dies or plungers, compressed into bricks. Four bricks are made with each completed operation of the machine. The motive power is steam. To the left of the machine, as the operator faces it, the court will notice a drive wheel encircled by a belt. What is known as a friction clutch operates in conjunction with said drive wheel, thereby supplying or shutting off the steam motive power. Two pairs of wooden clutch blocks, one pair being upon each side of said wheel, and being so shaped as to conform to the contour of the rim thereof, act in connection with the same. One. of each pair of said clutch blocks is adjacent to the outside surface of the rim of said wheel, and the remaining clutch block in each pair is adjacent to the inside surface of the rim of said wheel. The clutch blocks are of appropriate length, so that, when applied^ they form sufficient contact along the surface of said wheel to engage and bind upon it. When the operator desires to start the machine or to throw it into gear, he pushes the hand lever, shown on the exhibits, toward his right and over against the body or framework of the machine. This causes the clutch to move over to his left, and also causes the clutch blocks to close together and bind upon the rim of the drive wheel, and, when the drive wheel is thus sufficiently engaged, it connects the steam power and puts the machine in motion. When the operator desires to disconnect the steam power or to throw the machine out of gear, he pushes the lever over toward the left. This causes the clutch to move over to the right, and also causes the clutch blocks to separate or spread apart and to cease to bind upon the rim of the drive wheel, thereby disengaging the drive wheel and shutting off the steam power. When the lever stands at neutral or on center the clutch blocks are not in contact with the drive wheel; therefore no connection is formed with the steam power, and the machine is at rest. ”</p> <p>The court, over the objections of defendant, permitted plaintiff to ask one Charles Gustafson, one of plaintiff’s witnesses, the following question: “When you began operating the machine there immediately after the injury, what, if any, method was there of locking that machine so that it would not go into gear or operation or the dies descend after the hand was put in there to pack the clay?” To which the witness answered: “There was nothing, only a piece of rawhide hanging there, but, whether that was used for that, I conld not exactly say.” And allowed plaintiff’s counsel, upon the cross-examination of M. A. Nicol, one of defendant’s witnesses, to ask the following questions:</p> <p>“Q. As a matter of fact, that machine was never built or intended to be operated there in the way that it was used, by stopping every time and pressing in the clay with the hands, was it?</p> <p>Í£A. I conld not say that it was built for that. * *</p> <p>‘ ‘ Q. Yes, sir; but the manufacturer of that particular machine made it as a dry press machine, did he not, with the expectation it would be used with dry clay, and that no man would pack those with his hands ?</p> <p>“A. As I understand the difference between a dry press brick and a dry press machine is that one of the machines operates with clay that is moist, but .is not a mud. There is another machine that is known as a soft mud machine. That handles a clay that is a real soft mud, and then there is a soft mud machine. * *</p> <p>“Q. Is that why they cut out their drying drum up there ?</p> <p>“A. Oh, no. # *</p> <p>“Q. "Well, why was it, then; why did they stop drying the clay?</p> <p>“A. The clay dryer—I was there when they operated this clay dryer. I have been there for four years almost; and they were working with practically surface clay, very plastic, as you would understand, sticky clay, up in the top of the mine. It was, sticky, and they used this dryer to take that stickiness out of the clay. As they got deeper in the mine, they got into harder clay. Some of it was very hard, almost rock; and by mixing that almost rock with the very sticky clay, we had the desired plasticity or stickiness, as we would term it. You would term it stickiness; we would term it plasticity. By mixing this rock, you might call it, with the mud, it would produce the desired plasticity of the clay and, therefore the dryer was not needed any more.”</p> <p>The court also, oyer defendant’s objection, allowed plaintiff’s counsel to ask one A. W. Billings the following questions, upon cross-examination:</p> <p>“I will ask you, if, independently of those notches, it would be practicable to have a locking device on that lever that is set over there, so that it would hold it securely in place?</p> <p>“A. I think I understand that by answering I don’t think it is necessary.</p> <p>“Q. I didn’t ask you that question. I asked you if it was practicable to construct a locking device that would hold that lever wherever it was set? Is that practicable ?</p> <p>“ A. Well, that is pretty hard for me to answer. Of course it could be done. You asked me if it was practicable ?</p> <p>“Q. Practicable to do that; yes, sir.</p> <p>“A. No, I don’t think it would be.</p> <p>“Q. How much would it cost? Is it too expensive?</p> <p>“A. Simply for the reason that a locking device there is not necessary; and another reason, a locking device would hinder the operator’s manipulation of the lever.</p> <p>“Q. Did you ever see the levers by which gang edger saws are set and moved from place to place?</p> <p>“A. Some special lever, did you say?</p> <p>“Q. Did you ever see the levers by which gang edger saws are set and moved from place to place?</p> <p>“A. Well, I wouldn’t say that I did. I suppose I know what they are.</p> <p>“Q. Yes; have you ever seen levers with a little hand-hold underneath that work with a spring; that is, to lock either through friction against a piece of metal or through a notch or a hole in which a pin is inserted? Did you ever see one of that kind?</p> <p>“A. Yes, sir; I have seen them.</p> <p>“Q. Would you say it was not practicable to put some locking device of that kind on that arm which extends out from the machine, on which the lever rests ?</p> <p>“A. Well, I really forgot whether I said it was impracticable or not. If I said it was impracticable, I would say again it is unnecessary; but I forget whether I said it was impracticable.</p> <p>• “Q. Now, Mr. Billings, that machine was, as a matter of fact, not intended to be thrown in and out of gear every time four bricks are made, was it?</p> <p>“A. I would judge, in my opinion, if that is correct, that that is to be thrown off and at any desirable time the operator wishes. # *</p> <p>“Q. It is intended, of course, that he may have it under his control by the use of this lever; that is, he can stop the operation of the machine whenever he wishes to stop the manufacture of brick for any reason; but to get down again to your opinion, I say, in your opinion, it is not intended, is it, that a machine of that character shall be thrown out of gear and into gear for every four brick that is made? Is not that subjecting* the machine to use for which it is not intended, and thereby imposing unnecessary wear upon the brakes and the gear?</p> <p>“A. I could answer that both ways, and be justified in answering it that way, depending upon the quality of material they were using in it. In one instance, they, of course, would not intend—it would not be necessary, and you don’t want to stop it, when the charges fill—when the molds will fill, it is not anyone’s desire to stop it every four brick; and the machine is there to do the work that is to be done, and, if it is necessary to be stopped every four brick, that machine is there to do it. ’ ’</p> <p>The court also gave the following instructions, which were excepted to by defendant:</p> <p>“The law of this state makes it the duty of all owners, corporations, and persons engaged in the operation of, or having charge of, any machinery to see that all metal, wood, or other material whatever shall be carefully selected and inspected and tested so as to correct any defects, and that all dangerous machinery shall be securely covered and protected to the fullest extent that the proper operation of the machinery permits-, and, generally, that all owners and other persons having charge of, or responsible for, any work involving a risk or danger to the .employees of the public, shall use every device, care, and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, or other device or apparatus, and without regard to the additional cost of suitable material or safety appliances and devices. * * Negligence may be defined to be the doing of something expressly forbidden and prohibited by law, or the failure to do that which the law expressly commands and requires, and, in the absence of any express requirement of the law, the test of whether a person has been negligent or not is applied by determining whether such person is shown to have done something which an ordinarily prudent person would not have done under the same circumstances, or whether such person has been shown to have failed to do that which a person of reasonable and ordinary care would do under similar or like circumstances. * * I have said that the law expressly provides that all dangerous machinery shall be securely covered and protected to the fullest extent that the proper operation of the machinery permits, and that all owners or persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public shall use every device, care, and precaution which is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, apparatus, or device, and without regard to the additional cost of suitable material or safety appliances and device; and this is the express provision of the law. It becomes a question of fact in this case, gentlemen of the jury, which you will have to determine from the evidence, whether or not it has been shown that the machinery employed by the defendant company was dangerous machinery, before you would be authorized to apply the rule with regard to what would constitute negligence under this express provision of the law to the case which you are trying. If yon find that the same constitutes dangerous machinery, then the express provision of the law would be applicable, in so far as the evidence disclosed a compliance therewith or a failure to comply therewith upon the part of the defendant. And it also is a question of fact as to whether or not the work which is disclosed by the evidence to have been conducted by the defendant in this case involved, a risk or danger to the employees, before you would be justified in applying to this case the rule with regard to what constitutes negligence in cases where there is an express provision of the law, and the express provision of the law to which T have called your attention, in determining whether or not the defendant was negligent, and in case only that you find that the work involved risk or danger to the employees or the public, would you be justified in applying this express provision of the law.”</p> <p>The defendant submitted requests for instructions substantially covering the common-law doctrine of assumption of risk, which were refused by the court. The plaintiff had a verdict, and, from the judgment thereon, defendant appeals.</p>

<p>Descent and Distribution—Rights of Expectant Heirs.</p> <p>1. A child, whether of the blood or by adoption, has no standing to assert or defend any interest which is expected hereafter in the estate of a parent who is still living.</p> <p>Deeds—Evidence—Conspiracy to Defraud.</p> <p>2. In a suit wherein it was sought to cancel a deed, evidence held not to show a conspiracy between relatives of the grantor to defraud her.</p> <p>[As to when a deed is void in law for fraud, see note in 93 Am. Dee. 596.]</p> <p>Deeds—Validity—Mental Capacity of Grantor.</p> <p>3. If at the execution of a deed the grantor has sufficient mental capacity to comprehend the nature of the business in which he is engaged, the instrument is valid.</p> <p>[As to contracts of insane persons, see notes in 15 Am. Dec. 361; 21 Am. Rep. 29.]</p> <p>Deeds—Validity—Capacity of Grantor—Evidence.</p> <p>4. Evidence in a suit in whieh it was sought to set aside deeds held to show that the grantor was possessed of ample mentality to fully and fairly comprehend the nature of the business in which she was engaged when she gave the power of attorney under which the deeds were executed, and when they were executed by the agent.</p> <p>Principal and Agent—Power of Attorney—Construction.</p> <p>5. While a power of attorney authorizing the attorney to lease, let, demise, bargain, sell, remise, release, convey, mortgage, and hypothecate lands upon such terms and under such covenants as he shall think fit, does not technically authorize a gift, conveyances upon the consideration of $10 and $1, respectively, are within the letter of his authority.</p> <p>[As to general rules respecting authority of agent, see note in 16 Am. St. Eep. 493.]</p> <p>Evidence—Parol Evidence Affecting Writings—Power of Attorney.</p> <p>6. Under Section 713, L. O. L., providing that an agreement reduced to writing is to be considered as containing all its terms, and there can be no evidence of those terms other than the contents of the writing except where a mistake or imperfection is put in issue or the validity of the agreement is the fact in dispute, and Section 717, providing that for the construction of an instrument the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may be shown, in determining whether conveyances by an attorney in consideration of $10 and $1, respectively, were within the spirit of a power of attorney which did not authorize a gift, parol testimony may be admitted.</p> <p>Principal and Agent—Authority of Agent—Power of Attorney.</p> <p>7. Where a woman of advanced age, both before and after the death of her husband, spoke of an interest in unproductive land which she had inherited from her brother as a burden, and of her intention to give it to her other brothers and sisters, and there is no evidence of undue influence over her, conveyances by her attorney in fact in consideration of $10 and $1, respectively, were within both the spirit and letter of her power of attorney authorizing him to sell.</p>

<p>Brokers—Relations to Principal—Validity of Contract.</p> <p>Where a real estate agent was authorized to sell a house and lot at a certain price, the purchaser to assume the street improvement assessments, and drew a contract of sale, omitting reference to the assessments, which the owner signed without having noticed the omission, which contract was made by the agent for his own benefit with a third person, it was not binding on the owner, and will be canceled at his suit.</p> <p>[As to validity of sale or transfer by agent to himself, see note in Ann. Cas. 1912A, 1772.]</p>

<p>Witnesses—Recalling Witness—Discretion of Court.</p> <p>1. In an action for personal injuries, it was within the discretion of the trial court to permit plaintiff to be recalled and questioned if, in her testimony the day before, she attempted to be accurate in fixing distances on map, and if she was trying to change her evidence of the distances of which sh'e had spoken; her answer being in the negative.</p> <p>Appeal and. Error—Review—Questions of Fact—Qualifications of Expert Witness.</p> <p>2. It being the duty and within the province of the court as a preliminary question of fact to determine whether a witness is qualified as an expert, the appellate court will not disturb the decision, unless there is no evidence to sustain it.</p> <p>[As to its resting on the trial court’s discretion whether witness shall testify as expert, see note in Ann. Cas. 1912D, 817.]</p> <p>Evidence—Expert Testimony—Qualifications of Witness.</p> <p>3. That a physician is not regularly licensed to practice in the state does not militate against his competency as an expert witness.</p> <p>[As to competency of physicians to testify as experts, see note in 66 Am. Dee. 234.]</p> <p>Evidence—Expert Testimony—Qualifications of Witness—Determination.</p> <p>4. That a witness has been licensed to practice medicine in another state, and is so engaged at the time of trial, is competent evidence in determining his fitness to testify as an expert, and to sustain a decision admitting his testimony.</p> <p>Trial—Reception of Evidence—Motions to Strike Out—Evidence Admissible in Part.</p> <p>5. Where several statements in the testimony of a physician were such as might properly be made by a nonexpert witness, a motion to strike out all his testimony on the ground that he was not qualified as an expert was properly denied.</p> <p>Evidence—Expert Testimony—Subject Matter.</p> <p>6. In an action for personal injuries, testimony of a physician that it is almost impossible for any physician to state just the extent of an injury from a shock, because it sometimes shows up 10 or 15 years afterward, that one cannot tell the extent or duration of it in the future, and that there are cases of shock from fright where the condition has become permanent, is admissible to show what suffering will acerue from the injuries in the future.</p> <p>Trial—Assessment—Instructions.</p> <p>7. Where the court charges that, when the jury have ascertained what plaintiff’s injuries were, how much she will be compelled to pay for doctors’ bills, and what she has lost in wages, they may award such sum as they think will reasonably compensate her, and take the facts m the case, and do what is right between the parties, without regard to anything, except as conscience dictates, under the evidence and rules of -law given them, the refusal of a charge that, before they are warranted in allowing any sum for permanent injuries, they must be reasonably certain, from a preponderance of the evidence, that the plaintiff has sustained permanent injury, and it is not enough that they may believe that a permanent injury is possible, is error, though the court gives the ordinary instructions about the party holding the affirmative of the issue being required to prove it by a preponderance of the evidence.</p> <p>Trial—Instructions—Prominence of Particular Matter.</p> <p>8. In an action for injuries to a pedestrian by an automobile on the paved street of a large city, an instruction that it is admitted that plaintiff was crossing the street between crossings, and that it was her duty to exercise reasonable care, and to look and listen before crossing or attempting to cross to ascertain whether vehicles were approaching, and to exercise the care which any reasonable and prudent person would exercise in crossing the street between intersections, was properly refused, as it emphasized the circumstance that the crossing was not at the intersection of streets, which was immaterial where the streets were paved.</p>