Volume 72 — Oregon Reports

From Lane: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Chibe Justice McBride.

From Douglas: Lawrence T. Harris, Judge. This is an action by Clara Marks against H. J. Wilson. From a judgment in favor of plaintiff, defendant appeals. The facts are set forth in the opinion of the court. Department 2.

<p>Appeal and Error — Witnesses—Cross-examination—Scope and Extent — Discretion of Court — Review.</p> <p>1. Under Section 860, L. O. L., permitting an adverse party to cross-examine any witness as to any matter stated in his direct examination or connected therewith, the extent of cross-examination to test memory, discover bias or prejudice, or ascertain the truth of the witness’ declarations rests largely in the court’s discretion, which ■will not be disturbed except in case of an abuse.</p> <p>Witnesses — Cross-examination—Scope and Extent.</p> <p>2. Any evidence tending to explain, modify or disprove a witness’ testimony given in chief may be demanded of him on cross-examination.</p> <p>Witnesses — Cross-examination—Scope and Extent.</p> <p>3. Cross-examination of a witness as to collateral, irrelevant or immaterial matters should be denied.</p> <p>Negligence — -Evidence—Alterations After Injuries.</p> <p>4. Evidence of an alteration in conditions after an accident is inadmissible unless it is offered to substantiate an issue that the agency causing the hurt could not have been operated in the changed condition.</p> <p>Negligence — Evidence—Alterations After Injuries.</p> <p>5. Where a witness for defendant, in an aetion for personal injuries, testifying as to measurements of the iron platforms which had fallen and hurt plaintiff, remarked that the iron had been removed, cross-examination as to a change of place of the storing of the ironwork after the injury, plaintiff’s counsel stating he desired to show that the platforms could have been placed in the gutter, was inadmissible.</p> <p>Appeal and Error — Harmless Error — Admissibility of Evidence.</p> <p>6. Under Article YII, Section 3, of the Constitution, as amended, providing that no fact tried by jury shall be otherwise re-examined unless the court can affirmatively say that there is no evidence to support the verdict and if the Supreme Court shall be of opinion that the judgment appealed from was such as should have been rendered, it shall be affirmed, notwithstanding any error during the trial, error in cross-examining a witness as to a change of place of storing the iron, the fall of which injured plaintiff, must be regarded as harmless, where the Supreme Court cannot say there is no evidence to support the verdict.</p> <p>Trial — Instructions—Applicability to Issues.</p> <p>7. In an action for personal injuries, an answer, alleging assumption of risk by plaintiff, does not authorize submission to the jury of the question of plaintiff’s negligence.</p> <p>Negligence — Contributory Negligence — Assumption of Risk.</p> <p>8. The defense of assumption of risk can be invoked only in cases between master and servant.</p> <p>Dismissal and Nonsuit — Codefendants.</p> <p>9. In an action against two or more defendants for negligently causing a personal injury, dismissal as to one of the defendants with the consent of plaintiff is not error as to the other defendant.</p> <p>Contribution — Joint Tort-feasors — Negligence.</p> <p>10. Where a personal injury was not caused intentionally, a right of contribution exists between the persons whose negligence caused the injury.</p> <p>[As to contribution between tort-feasors, see note in Ann. Cas. 1913B, 938.]</p>

From Tillamook: William Galloway, Judge. This is a suit by the Bay City Land Company, a corporation, against John S. Craig and H. Crenshaw. The lower court entered a decree dismissing the complaint, and plaintiff appeals. The facts are set out in the opinion of the court. Department 1.

From Union: John W. Knowles, Judge. In Bane. Statement by Mr. Justice Burnett. This is an action by E. W. Oliver, against two corporations, tbe Grande Ronde Grain Company and tbe Pioneer Flouring Mill Company, and three individuals, Ed Kiddle, Fred Kiddle and Merton Kiddle. For convenience tbe corporations will be designated as tbe Grain Company and tbe Mill Company respectively.

From Marion: Percy R. Kelly, Judge. The defendant, J. E. Hosmer, was indicted, tried and convicted of libel, and from the sentence imposed appeals. The facts are concisely stated in the opinion of the court. Department 2.

From Multnomah: Robert G. Morrow, Judge. The defendant, Lloyd H. Wilkins, was charged with the killing of one Lou L. Winters on October 11, 1913, and was convicted of murder in the first degree, and appeals. Department 1.

From Crook: William L. Bradshaw, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is a suit by J. W. Merrifield and C. D. Hartman against Z. T. McClay and Mary McClay to foreclose a mortgage upon certain real estate in Crook County, Oregon. The defendants answered, setting up in substance: That the notes, to secure which the mortgage was executed, were given for the purchase price of a stallion sold by plaintiffs to defendant T. P. MeClay.

From Columbia: James A. Eakin, Judge. The defendant, John Arthur Pender, was convicted of murder in the first degree, and sentenced to be hanged, and appeals. The facts are stated in the opinion of the court. Department 2.

<p>Eminent Domain — Proceedings—Collateral Attack.</p> <p>1. The jurisdiction and regularity of proceedings to condemn a street which is to connect with a proposed bridge and passenger elevator cannot be tried out in proceedings to punish a violation of an order enjoining the construction of the bridge and elevator as a nuisance,</p> <p>[As to pendency of suit for damages for unlawful entry on land as bar to condemnation proceedings, see note in Ann. Cas. ■ 1913D, 601.]</p> <p>Injunction — Violation—What Constitutes.</p> <p>2. After the condemnation of a street to connect with a proposed bridge and passenger elevator, the location, opening and improvement of the street are not in disregard of an order enjoining the construction of the bridge and elevator as a nuisance.</p> <p>[As to remedies of property owners for damages accruing’after condemnation, see note in 5 Am. St. Rep. 537.]</p>

<p>Insurance—Actions on Life Insurance Policies—Nonsuit.'</p> <p>1. In an action on an insurance policy, the principal issue being whether the insurer waived conditions that the policy should not take effect until the first premium should have been paid and the policy delivered, that premiums are payable at the home office of the company or to agents producing receipts signed by certain officers, and that only the president or a vice-president, together with the secretary or assistant secretary, and they only in writing, can modify the contract, where there was evidence that the insured gave a note for the first premium to the agent of the company, and that the general agent was charged with the premium, though the soliciting agent after transferring the note to an innoeent purchaser never paid the proceeds to the general agent or to the company, a nonsuit was properly denied.</p> <p>[As to parol evidence to show waiver of provisions in policy, see note in Ann. Cas. 1914C, 59. As to waiver of conditions requiring payment before delivery of insurance policy, see note in 57 Am. Rep. 514.]</p> <p>Principal and Agent — Ratification of Unauthorized Act of Agent.</p> <p>2. The ratification of an unauthorized act of an agent must be found in the intention of' the principal, either express or implied, but the circumstances may be such that the law will recognize a constructive intention wh.ere none actually existed.</p> <p>Principal and Agent — Authority of Agent — “Ratification.”</p> <p>3. “Ratification” takes place when one person adopts a contract for him and in his name which was not binding, because the person who made it was unauthorized.</p> <p>[Effect of ratification, see note in 5 Am. St. Rep. 109.]</p> <p>Principal and Agent — Authority of Agent — Ratification is a Question of Fact.</p> <p>4. Ratification is a question of fact, usually turning on the conduct of the principal in relation to the contract or the subject of it from which his intention may be reasonably inferred.</p> <p>Principal and Agent — Authority of Agent — What Evidence is Sufficient Ratification.</p> <p>5. Deliberate and continued action of a principal with knowledge of the facts consistent with an intention to adopt the contract, or inconsistent with a contrary intention, is sufficient evidence of ratification.</p> <p>Principal and Agent Accepting Benefits — Ratification.</p> <p>6. Whenever a principal accepts the benefits of his agent's unauthorized acts with knowledge of all material facts, he ratifies them.</p> <p>[Effect of retention by principal of benefit of loan procured by agent without authority, see note in Ann. Cas. 1913E, 1115.]</p> <p>Principal and Agent — Authority of Agent — Ratification.</p> <p>7. Silent acquiescence with full knowledge of the material facts may amount to a ratification if continued for an unreasonable time and third persons have acted in reliance upon and been prejudiced by such acquiescence, especially where an agent, not a stranger, has exceeded his authority.</p> <p>Insurance — Ratification of Unauthorized Acts of Agent.</p> <p>8. Since a ratification may be inferred from the mere habits of dealings between the parties, the custom of an insurance company in dealing with its general agent in the matter of premiums might give opportunity for the agent to accept promissory notes for premiums, he becoming liable to the company for its share thereof, notwithstanding provisions of the policy as to payment of premiums.</p> <p>Insurance — Agents—Ratification of Unauthorized Acts.</p> <p>9. The material facts, the knowledge of which affect the question of an insurance company's ratification of a contract issued by an agent without a cash payment of the first premium are that the poliey of insurance has been delivered to the insured and the payment of the premium made to the general agent or to a subagent authorized by him, the manner of making the payment, whether by negotiable paper' or otherwise, not being of vital consequence.</p> <p>Insurance — Agents—Ratification of Unauthorized Acts.</p> <p>10. Where the officers of an insurance company had opportunity to inform themselves as to the circumstances of the delivery of a policy and the arrangement as to the premium, and failed to do so, it would be equivalent to such knowledge.</p> <p>[As to silence as ratification of act of stranger, see note in Ann. Cas. 1912B, 151.]</p> <p>Principal and Agent — Authority of Agent — Ratification.</p> <p>11. A ratification of an agent’s acts is not required to be in writing by the fact that the authority of the agent is in writing but that rule applies only where the statute requires the authority to be in writing.</p> <p>[Ratification of what contracts not possible, see note in 59 Am. St. Rep. 638.]</p> <p>Appeal and Error — Review—Harmless Error — Instructions.</p> <p>12. In an action on an insurance policy, instructions that the burden was on plaintiff to show that it was agreed between the soliciting agent and the insured that the insured’s note was to be accepted as payment of the premium in- place of payment in the manner required by the poliey and to show that the agent was authorized to do so, or that after full knowledge and understanding of the transaction the- company ratified it, that there was no competent proof that the agent had authority to receive the note, and whether the company became bound depended wholly on whether it ratified the act, and that the burden is on plaintiff to show ratification, and if the insurer charged the general agent with the premium and accepted his credit and held him liable therefor in plaee of the insured, and with that understanding caused the poliey to be delivered to the insured, that would constitute a ratification, but that merely an account with the general agent, without any understanding th-at the company accepted his credit, does not constitute a ratification, were favorable to defendant, and hence not ground for reversal.</p>

From. Marion: Percy E. Kelly, Judge. Department 1. Statement by Mr. Justice Burnett.

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by William Horsfall against William Logan.

<p>Mines and Minerals — Mining Lien — Assignment—Rights Acquired.</p> <p>1. The right to a mining lien, being a creature of the statute, the right to perfect the lien is limited to the persons who do the work or furnish the material or supplies, and an assignment before the lien is recorded carries title only to the debt or chose in action, and not to the right to perfect the lien.</p> <p>[As to who is a “laborer,” “workman” or “servant” within the meaning of statutes relating to liens, see note in 32 Am. Rep. 264.]</p> <p>Mines and Minerals — Mining Lien — Enforcement—Weight of Evidence.</p> <p>2. In a suit to foreclose mining liens, evidence examined and held to show that an assignment of the liens, though dated prior to the date of the recording of the liens, was in fact executed subsequent to such record.</p> <p>Mines and Minerals — Mining Liens — Verification of Claim.</p> <p>3. Under Section 7445, L. O. L., providing that the statement for a lien on mines and mining property shall be verified by the oath of the claimant or some other person having knowledge of the facts, an affidavit that the affiant caused the notiee of lien to be prepared at the instance and request of the claimant; that he had personal knowledge of all the facts set forth in the. lien, and knew the facts to be true — was a sufficient verification.</p> <p>Mines and Minerals — Mining liens — Enforcement—Sufficiency of Evidence.</p> <p>4. In a suit to foreclose liens on a mine and mining property, evidence held sufficient to show prima facie that the claims on which the liens are based were not paid.</p> <p>Mines and Minerals — Mining Liens — Effect of Prior Claims.</p> <p>5. A sale of mining property on foreclosure of a mortgage extinguishes the liens of the mortgagee so that they do not affect a subsequent proceeding for a lien against the property for labor and supplies.</p> <p>Mines and Minerals — Mining Liens — Consent of Owners — Notice.</p> <p>6. Where labor and supplies for a mine were furnished to a lessee, whose lease was recorded as required by Section 7444, L. O. L., and the owner had not caused to be posted at not less than three conspicuous places in the mine a notice in writing stating the name of the lessee, and that the owner thereof would not be responsible for any debts contracted by the lessee or other person than the owner, as required by the section referred to, the persons furnishing the labor and supplies were entitled to liens against the mine.</p> <p>[As to abandonment and forfeiture of mining claims, see note in 87 Am. St. Rep. 403.]</p>

<p>Pleading — Complaint—Construction—Inference.</p> <p>1. Where a complaint is not demurred to, and the defendant answers, and no objection is made until the trial or on appeal, it is liberally construed, and is entitled to all intendments in its favor that arise after verdict, and every reasonable inference will be invoked to sustain it after trial has commenced.</p> <p>Exchange of Property — Fraud—Evidence Sufficient to Entitle Rescission.</p> <p>2. Evidence held to show that, to induce an exchange of property, defendants made false representations as to the extent of their apartment house business and of the property in the apartment house; that the plaintiffs had no knowledge of the apartment house business; that they believed the representations and relied on them; and that the representations were known to defendants to be false, entitling the plaintiffs to rescind the transaction.</p> <p>[As to- the difference between an exchange of properties and a sale, see note in 94 Am. St. Rep. 227.]</p> <p>Contracts — Validity—Fraud—Elements—Diligence.</p> <p>3. When a person, to defraud another, makes false representations as to material facts, and the person to whom they are made believes them and is induced to enter into a contract to his injury, the person making the representations cannot defeat a suit to rescind the contract by showing that the person defrauded could have ascertained that such representations were false by the exercise of diligence, and considering the fraudulent statements made by defendants, plaintiffs are entitled to a rescission of the contract for exchange.</p> <p>Cancellation of Instruments — Right to Relief — Conditions Precedent —Restoration of Consideration.</p> <p>4. While a person seeking the remedy of cancellation must do equity, and as a general rule the parties must be placed in statu quo, yet, if the act of the fraudulent party renders restoration of the consideration impossible, the equitable remedy will not be defeated.</p> <p>[As to right of grantor to cancellation of deed on ground of misrepresentation by grantee as to condition, value, etc., of property, see note in Ann. Cas. 1912A, 405.]</p> <p>Cancellation of Instruments — Condition Precedent — Consideration— Restoration — Sufficiency of Offer.</p> <p>5. An offer to restore the consideration precedent to a suit to rescind need not be a technical tender such as would be required as a condition precedent to an action at law. In the case at bax a proper offer was made before the suit was- commenced.</p>

From Multnomah: Henry E. McGinn, Judge. The plaintiffs, S. Hoehfeld and others, sued out a writ of review to correct errors committed by the council of the City of Portland in a reassessment of property for a street improvement. From a judgment dismissing the writ, plaintiffs appeal. Reversed and remanded, with directions. In Banc.

<p>Larceny—Evidence—Ownership of Property.</p> <p>1. Under Section 5524, L. O. L., providing that all brands shall be recorded in the county where the owner resides and any other county where the animals usually range and no evidence of ownership by brand shall be permitted unless the brand shall be recorded, and Section 5528, making the duly recorded brand prima facie evidence of ownership, in a prosecution for larceny of calves, there must be some other proof of ownership than an unrecorded brand.</p> <p>[As to when animals are subjects of larceny, see note in 47 Am. Rep. 765.]</p> <p>Larceny — Evidence—Unrecorded Brand.</p> <p>2. In a prosecution for the larceny of calves, evidence as to the brand of the cow, the mother of the calves alleged to have been stolen, was competent for the purpose of identification.</p> <p>[As to brands on animals as evidence of ownership, see note in Ann. Cas..l913E, 133.]</p> <p>Larceny — Evidence—Weight and Sufficiency — Ownership of Property.</p> <p>3. In a prosecution fo-r the larceny of calves, evidence other than the brand field sufficient to establish the title to the calves in the alleged owner.</p> <p>Larceny — Instructions—Proof of Ownership.</p> <p>4. In a prosecution for the larceny of calves, an instrfiction that the ownership of the property may be shown by proof other than by a recorded brand is proper.</p>

<p>From Marion: Percy E. Kelly, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is an action by E. H. Chamberlain against Henry A. Townsend and Eunice Townsend.</p> <p>The complaint alleges that the defendants are husband and wife, and constitute a family; that between certain dates the plaintiff performed labor of a certain reasonable value-at the special instance and request of the defendants in pruning their orchard and various other tasks about their farm. Then follows this allegation:</p> <p>‘ ‘ That all of said work, labor and services were performed upon the farm of said defendant, Eunice Townsend, wife of said Henry A. Townsend, defendant, in Marion County, Oregon, and were rendered and performed for said defendants as husband and wife as a family expense, and that the same and the whole thereof was a necessary family expense and necessary to the said defendants for them in working and operating their said farm.”</p> <p>Aftér an allegation of demand for payment of the balance dne and refusal of defendants to liquidate as requested, the complaint states:</p> <p>“That before the commencement of this action said plaintiff duly demanded payment of said wages from said defendants, and that he gave to said defendants more than three days’ notice of his intention to quit said employment, that more than 48 hours have elapsed thereafter before the commencement of the said action; and that $40 is a reasonable sum to be allowed as special attorney’s fees for the institution and prosecution of this action.”</p> <p>The answer traverses the allegations of the complaint, and, in substance, 'states that during the time mentioned in plaintiff’s complaint he did perform services and labor for the defendant Henry A. Townsend, and that during said period the plaintiff wrongfully and unlawfully converted to his own use certain personal property belonging to the defendants, describing it, of the value of $85, and, further, that the plaintiff performed labor and services for the defendant Henry A Townsend, and while thus engaged the plaintiff used a hack belonging to the defendants and injured it to the extent of $10. Defendants also allege payment in full for the services, and, lastly, an accounting whereby a balance was ascertained in favor of the plaintiff in the sum of $34, which the defendant Henry A. Townsend afterward paid. The defendants demand judgment against the plaintiff for the sum of $95. The reply traverses the new matter of the answer. When the case was called for trial, the defendants moved the court for an order requiring the plaintiff to elect upon which theory he would attempt to hold defendant Eunice Townsend, that is, “upon express contract or upon the theory of family supplies or statutory liability.” The court overruled the motion. A jury trial resulted in a verdict and judgment against the defendants for the sum of $289.30, and they appeal.</p>

From Marion: Percy R. Kelly, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action of trover by Robin D. Day against D. H. Weyant and R. R. Ryan, to recover tbe value of brick alleged to have been converted by the defendant Ryan. On June 28, 1912, Ryan entered into an agreement with Weyant in the following language: “Articles oe Agreement. “Between R. R. Ryan, party of the first part, and D. H. Weyant, party of the second part.

<p>Sheriffs and Constables—Liabilities on Bonds—Pleading.</p> <p>1. Where the bond of a constable is conditioned upon Ms faithfully executing and returning all process and paying over according to law all money that shall come into his hands by virtue of his office, there can be no recovery on the bond where it is not alleged that any process was directed or delivered to the constable, or that he had in Ms possession any such a paper, or any money, either officially or privately, or that plaintiff suffered damage because the constable failed to return a writ, if he had one, or that she was a party to or interested in any action in which the process might have been issued.</p> <p>[As to what constitute breaches of bonds of sheriffs and constables, see note in 46 Am. Dec. 509.]</p> <p>Sheriffs and Constables—Liabilities of Bonds—Pleading.</p> <p>2. A complaint alleging that a constable, without exhibiting or serving any process, took chattels from the plaintiff, and, while she was endeavoring to protect her right therein, assaulted and maltreated her, and failed to execute and return the process to him directed in the replevin of the chattels, does not show a liability of the sureties on the constable’s bond conditioned only that he should execute and return all process and pay over according to law all money coming into his hands by virtue of Ms office.</p>

<p>Taxation — Equality and Uniformity — “Local Benefit.”</p> <p>The construction of an armory in a city having two companies of the National Guard and the headquarters of the Coast Artillery Reserves, consisting of a colonel, eight staff officers, and two noncommissioned officers, and a captain and sergeant of the regular army of the United States, is of such peculiar local benefit to the city that the issuance of bonds to aid in its construction is not in contravention of Article I, Section 32, and Article IX, Section 1, of the Constitution, requiring equality and uniformity of taxes.</p> <p>[As to state powers of taxation as affected by the fourteenth amendment, see note in 25 Am. St. Rep. 885.]</p>

<p>Injunction — Preliminary Injunction — Effect of Final Decree.</p> <p>1. In a suit to enjoin a city treasurer from paying city warrants, where, after the issuance of a preliminary injunction upon full hearing a decree was entered dismissing -the suit, from whieh the plaintiff appealed, the treasurer could pay the warrants; the preliminary injunction having been destroyed.</p> <p>[As to order made on motion to dissolve temporary injunction and whether such is final or interlocutory, see note in Ann. Cas. 1912C, 898.]</p> <p>Appeal and Error — Dismissal—Termination of Controversy.</p> <p>2. In a suit to enjoin a city treasurer from paying city warrants, where, after a preliminary injunction was issued, on full hearing a deeree was entered dismissing the suit, and plaintiff appealed, and the treasurer then paid the warrants, the appeal will be dismissed.</p>

<p>From Lane: Lawrence T. Harris, Judge.</p> <p>Department 2. Statement by Mr. Chief Justice McBride.</p> <p>This is a suit by Jesse P. Wycoff, Chester A. Wycoff, Etba May Baier, and Chauncey Wycoff and Archie This is a suit by Jesse P. Wycoff, Chester A. Wycoff, Etha May Baier, and Chauncey Wycoff and Archie</p> <p>The circumstances out of which this suit arose are as follows: James W. Wycoff died in 1905, leaving a widow, Emma B. Wycoff, now Emma B. Snapp, and five children, who are the plaintiffs in this suit. At the time of his death the decedent and his family were residing upon the land in dispute as a homestead, and the family continued so residing until February 28, 1908, when the County Court set apart the land to the widow, in accordance with Section 1234, L. O. L., for the use of herself and these plaintiffs. Subsequently, the widow married L. P. Snapp, and thereafter sold the premises to defendant Cook. It is charged that she has failed to use the land or the proceeds for the support of the children, but has wasted and dissipated the money received therefor; and the prayer of the complaint is that the deed to Cook be declared void and canceled. The sections of the statute bearing upon this subject are Sections 221, 226, 1234, L. O. L., which are as follows:</p> <p>‘ ‘ The homestead of any family shall be exempt from judicial sale for the satisfaction of any judgment hereafter obtained. Such homestead must be the actual abode of, and owned by such family or some member thereof. * * The homestead aforesaid shall be exempt from sale on any judicial process after the death of the person entitled thereto for the collection of any debts for which the same could not have been sold during his lifetime, but such homestead shall descend as if death did not exist. * * Upon the filing of the inventory, the court or judge thereof shall make an order, setting apart, for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart, if there he a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, if any; or if there be no widow, it is the property of the minor child; or if more than one, of the minor children in equal shares, to be used or expended in the nurture and education of such child or children, by the guardian thereof, as the law directs.”</p>

<p>Appeal and Error — Review—Questions of View.</p> <p>1. In an action at law, tried to the court, its findings are equivalent to a verdict, and on appeal tbe evidence will n-ot be examined further than to ascertain if there is any of it competent to support' the findings.</p> <p>Dedication. — Nature and Requisites — Express Grant.</p> <p>2. An article of dedication dedicating to publie use the streets, alleys, avenues and boulevards in an attached plat, whieh also shows a block marked by the words “Park Reserved,” does not include the park within the terms “streets, alleys, avenues and boulevards.”</p> <p>[As to dedication by maps and plats, see note in 10 Am. St. Rep. 189.]</p> <p>Dedication — Nature and Requisites — Filing Plat — “Reserve.”</p> <p>3. The filing of a plat showing blocks, streets, alleys, avenues and boulevards, with one block also marked “Park Reserved,” does not, under the rule requiring the intention of the party to be given effect, constitute a dedication of such block as a park, the word “reserved” meaning kept or set aside for future use, kept back.</p> <p>Dedication — Nature and Requisites — Acts in Pais — Pleading.</p> <p>4. Where the complaint alleges that defendant’s predecessors dedicated the premises in dispute, the plaintiff is entitled to show such a dedication by acts in pais independent of any deed.</p> <p>Dedication — Evidence—Admissibility.</p> <p>5. On an issue as to the dedication of a park, testimony that the ground was inclosed by the owners, devoted to private purposes, and conveyed to other private owners by deed, that they paid taxes on the land, and after the land was included within the city limits, 14 years after it was platted, the defendant paid street assessments, and at the behest of the city laid a sidewalk along the street upon which the property abutted, was admissible, not as supporting a plea of equitable estoppel, but as showing that there was no intention to dedicate a park.</p> <p>[As to when acceptance of a dedication is to be inferred, see note in 58 Am. Rep. 146.]</p> <p>Dedication — Evidence—Sufficiency.</p> <p>6. On an issue as to the dedication of property as a park, evidence held to sustain the conclusion that there was no dedication in pais.</p>

From Columbia: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by tbe Clatskanie State Bank, a corporation, against tbe City of Rainier, a municipal corporation.

From Multnomah: Frank M. Calkins, Judge. Statement by Mr. Justice Ramsey.

From Marion: Percy B. Kelly, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action by tbe Zoller Hop Company, a corporation, to recover $1,173 damages from the Southern Pacific Company, a common carrier for its alleged negligence in shipping an interstate consignment of 100 bales of hops for plaintiff in a leaky car about November 1, 1909, whereby 23 bales of them were so injured by dampness that they were totally unfit for use.

<p>Justices of the Peace—Process—Authority to Serve—“Duly Appointed Officer.”</p> <p>1. Under Section 2518, L. O. L., authorizing a justice of the peace to appoint some suitable person not a party to serve any process from his court when such service could not be made for want of an officer, where the docket states that a complaint and warrant were placed in the hands of a person as special constable, but the special constable appointment was not evidenced by any writing indorsed on the writ or otherwise, and no evidence was offered and no finding made that the warrant could not be served for want of an officer, the justice was without authority to appoint him, and he was not a “duly appointed officer.’? .</p> <p>Criminal Law—Preliminary Affidavit—Sufficiency.</p> <p>2. Under Section 829, L. O. L., requiring a witness in all affidavits to speak in the first person, an affidavit by Y. charging that he has missed cattle, that S. has now beef in his or his family’s possession, and that “I, V., believe his animals” have been butchered and the beef, etc., may. be found on the premises of S., does not state any offense known to the law.</p> <p>Searches and Seizures—Writ—Sufficiency.</p> <p>3. Article I, Section 9, of the Constitution, provides that no search-warrant shall be issued but upon probable cause supported by oath or affirmation particularly describing the place to be searched and the person or things to be seized. Sections 1852, 1853, L. O. L., authorize a justice of the peace to issue a warrant to search for personal property at any place within his county, when the property has been stolen. Section 1856 prescribes the'form of the warrant, requiring the place to be searched to be described with reasonable particularity. Held, that a warrant commanding search on all the premises of a person for certain property, not even designating the county in whieh the writ is to be executed, is invalid; the description being insufficient to enable a surveyor, either with or without the aid of extrinsic evidence, to locate the premises.</p> <p>[As to damages recoverable for unlawful search of premises or person, see note in Ann. Cas. 1913B, 1158.]</p> <p>Searches and Seizures—Authority—Presumptions.</p> <p>4. A proceeding for search of premises for personal property being in invitum, the statute authorizing it is to be strictly construed, and no presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify under it. ■</p> <p>[As to search-warrant valid on its face as protection to officer executing the same, see note in Ann. Cas. 1913D, 214.]</p> <p>Appeal and Error — Review—Harmless Error — Judgment Eight on Merits.</p> <p>5. Under Article VII, Section 3, of the Constitution, as amended, providing that, if the Supreme Court shall be of opinion that the judgment appealed should have been rendered, such judgment shall be affirmed notwithstanding any error at the trial, a judgment on a verdict for defendants in an action for an unlawful search will be affirmed where the court instructed that, if the officer in executing the warrant unnecessarily offended those present, the search-warrant could be of no protection to him, and that otherwise would constitute a defense as to both defendants, even though the seareh-warrant was issued without probable eause and maliciously by the defendant justice of the peace, to which language no exception was taken, though the court erroneously instructed that the process under which defendants justified was regular on its face and justified the obedience to its commands.</p> <p>Malicious Prosecution — Action—Evidence.</p> <p>6. In an action for causing to be issued without probable cause a seareh-warrant (upon a complaint issued on information and belief), the plaintiff shows a prima facie case when he proves that, upon search by an officer; the property involved was not found as disclosed by the return writ, and that for a long time prior to the search plaintiff had shown a good reputation for honesty and integrity.</p> <p>[As to what is necessary to support action for malicious prosecution, see notes in 12 Am. Dec. 265; 26 Am. St. Eep. 127.]</p> <p>Malicious Prosecution — Evidence—Admissibility.</p> <p>7. In an action for causing to be issued without probable eause a search-warrant, where the plaintiff produces evidence of his good reputation for honesty and integrity, the defendant may rebut the inference of want of probable cause by evidence that the reputation of plaintiff for honesty and integrity was bad.</p> <p>Searches and Seizures — Authority—Waiver of Objections.</p> <p>8. Where there had been an attempted appointment of a special officer by a justice of the peace, and he exhibited a seareh-warrant to the wife of plaintiff, her consent to a search of the premises waived any informalities in the complaint, writ and appointment of the officer.</p>

From Multnomah: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Bean.

From Crook: William L. Bradshaw, Judge. This is a suit by W. A. Booth against the City of Prineville, to quiet title. From a decree for the defendant, plaintiff appeals. The facts are set forth in the opinion of the court. Submitted on briefs without argument under the proviso of Supreme Court Rule .1.8: 56 Or. 622 (117 Pac. xi).

From Coos: John S. Coke, Judge. This is a suit by Fred N. Perkins against Ida M. Perkins for a divorce. From a decree for defendant, plaintiff appeals. The facts are fully set forth in the opinion of the court. Department 1.

From Marion: Percy B. Kelly, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is an action by J. C. Clearwater against Clarence Forrest, and was originally brought in justice’s court to recover damages for alleged false representations as to the soundness of a horse sold or traded by defendant to plaintiff.

<p>Municipal Corporations — Obstruction of Street — Suit to Enjoin — Pleading — Issues and Proof.</p> <p>1. In a suit to enjoin the maintenance of buildings and fences across a street which had formerly been owned by defendants, testimony on behalf of defendants that they did not intend to dedicate the part of the street where their house was situated is inadmissible, where it is not pleaded.</p> <p>[As to right of private individual temporarily to obstruct street, see note in 1 Am. St. Rep. 849.]</p> <p>Municipal Corporations — Streets—Estoppel.</p> <p>2. Though defendants occupying a portion of a street have made valuable improvements thereon for several years, the city is not estopped to enjoin their maintenance by its failure to eject defendant at an early date.</p> <p>[As to taxpayers’ remedies for illegal corporate acts, see note in 2 Am. St. Rep. 92.]</p>

From Clatsop: James A. Eakin, Judge. Statenaent by Mr. Justice Moore. This is an action to recover money.

From Lane: Lawrence T. Harris, Judge. This is a suit by J. D. Matlock against Mary F. Mat-lock for a divorce. From a decree in favor of defendant on a cross-complaint, plaintiff appeals. Department 2.

From Marion: William Galloway, Judge. Department 2: Statement by Mr. Justice Eakin. On October 9, 1912, the plaintiffs, L. H. Turner and O. A. Davis, made a contract with the defendant, E. D. Bray, by which defendant was authorized to sell 450 acres of land at a price named in the contract as $37 per acre, defendant to have $2 per acre as compensation for making such sale. Defendant procured a purchaser at that price, and now sues plaintiffs for the commission.

Original proceedings in Supreme Court. In Banc. This is an original proceeding in mandamus by the State, on the relation of Peter Fleck, against Dalles City, Oregon, a municipal corporation; F. A. French, as mayor; Ed. Hostetler, as recorder; and A. S. Esson, E. M. Williams, E. O. McCoy, C. M. Grimes, Jos. Kirchhoff, Ed. Ball and F. A. Seufert, Jr., as councilmen of said city, and C. L. Darnielle and W. E. Walther.

From Multnomah: Henry E. McGinn, Judge. This is an action by Anthon Eckern against J. D. Casey and J. H. Hutchinson to collect rent, wherein plaintiff recovered judgment, and the defendants appeal. Under the proviso of Eule 18 of the Supreme Court (56 Or. 622,117 Pac. xi), the case was submitted on briefs, with'out argument.

From Jackson: Frank M. Calkins, Judge. In Banc. Statement by Mr. Chief Justice McBride. This is an action by Horace Pelton, substituted for the Gold Hill Bank, a corporation, against the Gold Hill Canal Company, defendant, and W. R. McKeen et al., defendants and appellants, to recover the value of certain wheat stored in the warehouse of the defendant corporation, which it was claimed defendants had fraudulently converted.

From Multnomah: Henry E. McGinn, Judge. In Banc. Statement by Mr. Justice Moore. This is a suit by A. E. Koehler against E. Dennison and J. I. Hull to cancel a bill of sale of personal property and to recover the sum of money paid therefor.

From Columbia: James A. Eakin, Judge. Tbis is a suit by W. A. Harris, against tbe City of St. Helens, in tbe nature of a cross-bill in equity to obtain a decree that plaintiff is tbe owner of certain real property described in tbe complaint and to enjoin an action at law. There was a decree for defendant in the Circuit Court and the plaintiff appeals. The facts are concisely set forth in the opinion of the court. Department 1.

From Lane: Lawrence T. Harris, Judge. In Banc. Statement Per Curiam:. This is a motion to dismiss an appeal in the case of Margaret J. Fleming and Mark T. Fleming, her husband, William T. Pattison and Alice Pattison, his wife, and Isabelle M. Pattison against John R. Pattison, for the reason that no service of the undertaking was made. The notice of appeal was filed October 11,1913, with proper proof of service indorsed thereon.

From Multnomah: James W. Hamilton, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by Oscar J. Gregoire against the Portland Railway, Light & Power Company. It appears from the evidence that plaintiff resides at 471 East Twelfth Street, about 175 feet south of the crossing of Carruthers Street.

From Multnomah: William N. Gatens, Judge. Department 1. Statement of Mr. Justice Burnett. This is a suit by Theodore Suksdorf, Jane Doe Suksdorf, his wife, and Phillip Suksdorf, against the Spokane, Portland & Seattle Railway Company, a corporation, to correct an alleged mistake in a contract whereby the plaintiffs conveyed to the defendant a right of way across certain lands, and to recover damages for an alleged breach of the agreement as reformed.

Prom Multnomah: William N. Gatens, Judge. The defendant, Lew Torbet, was indicted for murder in the first degree. Prom a conviction of murder in the second degree and sentence to imprisonment in the penitentiary for life, he appeals. Department 1.

<p>Rape — Criminal Prosecution — Evidence—Complaint by Prosecutrix.</p> <p>1. In a prosecution for assault with intent to commit rape upon a child seven years old, it is error to admit testimony that, when the child complained of the ill treatment received, she named the defendant as the person who assaulted her.</p> <p>[As to evidence of complaint made by prosecutrix, see note in 38 Am. Rep: 369.]</p> <p>Criminal Law — Appeal—Harmless Error — Admission of Evidence.</p> <p>2. While prejudice is presumed where error appears, unless the record affirmatively shows the contrary, yet, where it affirmatively appears that defendant was properly convicted' of assault with intent to rape, the judgment will be affirmed, notwithstanding the erroneous •admission of testimony that the prosecuting witness, when complaining of the ill treatment she had received, named the defendant as the guilty person.</p>

From Marion: Percy E. Kelly, Judge. This is an action by M. D. McCallister against Henry Sappingfield to recover the value of plaintiff’s dog that was killed by the defendant. A jury trial resulted in a verdict in the sum of $200 and defendant appeals. Department 2.

<p>Fraud — Elements in General — “Actionable Fraud.”</p> <p>1. To recover damages for false representations, the plaintiff must show a knowingly false representation, that he believed it to be true, relied thereon, and has been deceived thereby, and that the representation was of a matter relating to the contract, and, if true, would have been to plaintiff’s advantage, but, being false, resulted in damages.</p> <p>[As to actions to recover for false representations, see note in 18 Am. St. Rep. 555.]</p> <p>Trial — Taking Question from Jury — Nonsuit.</p> <p>2. On a motion for nonsuit, the evidence for plaintiff, together with all inferences legitimately deducible therefrom, must be regarded as true.</p> <p>Fraud — Actions—Sufficiency of Evidence.</p> <p>3. Where, under the evidence, the jury might have found that statements had been made by one defendant to plaintiff in the presence of the other defendants that he knew the seller of a tract of land, that the seller had title and had been in possession until coming to Oregon, immediately prior to the interview, that the representations were false, that the representations were made with intent to deceive, and plaintiff relied thereon and was deceived, to his damage, a motion for nonsuit was properly denied.</p> <p>Fraud — Defenses—Defective Deed.</p> <p>4. That a deed omitted one boundary of the land, whieh fact was overlooked by the purchaser, does not affect the purchaser’s right to recover damages for false representations in procuring sale of the land, since the purchaser could have maintained suit to correct the description, if the grantors had refused to execute another deed.</p>

From'Klamath.: Henry L. Benson, Judge. Department 2. Statement by Mr. Chiee Justice McBride. This is an action by J. B. Reed against C. K.. Brandenburg, M. Hanks and Gf. Keitkemper, Jr. The facts are as follows: In September, 1909, Brandenburg, a defendant in the present action, began a suit against Reed, the plaintiff in'this action, and moved for a temporary injunction to restrain Reed from disposing of certain bay, potatoes and pasture described in the complaint.

<p>Release—Validity—Right to Contest—Conditions Preceding.</p> <p>1. Where a passenger, injured in a railroad wreck, while .worried about reaching her destination in time to meet friends, was paid $20 to enable her to get there, and was asked to sign a receipt, and signed a paper offered, she was not required to return the amount received as a condition precedent to recover for her injuries, though the paper signed was in fact a release of her claim against the railroad.</p> <p>[As to release by deceased as affecting right to recover for death by wrongful aet, see note in Ann. Cas. 1914D, 499.]</p>

From Lane: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by H. L. Frank against A. C. Woodcock to recover wages for work done by plaintiff upon a ranch in Lane County between February, 1912, and July 15, 1913, at $30 per month, for work of a team of plaintiff 317% days at $2 per day, and $13.20 for certain merchandise purchased by plaintiff for defendant, aggregating $970.25.

<p>Pleading — Objections and Waiver — Pleading Over.</p> <p>1. Where defendant answers after the overruling of his demurrer to the complaint, the complaint is to be construed most strongly in favor of the pleader, and will be sustained where the defects are in the statement, but not in the cause of action.</p> <p>Logs and Logging — Liens—Suits to Foreclose — Pleading.</p> <p>2. In a suit to foreclose liens on logs, where the logs are described as being from standing timber on a mountain about five miles, northwest of a named town, being United States land, the logs being distributed along the donkey road from the government land to a certain railroad, being about 100,000 feet of merchantable logs, more or less, not marked or branded, such description is fatally defective.</p> <p>Logs and Logging — Lien—Suit to Foreclose — Pleading.</p> <p>3. Under Section 7461, L. O. L., giving a lien to laborers in logging camps upon the logs, and Section 7467, requiring the filing of a claim with the county clerk, containing a sufficient description of the property charged, a description in a complaint to foreclose a lien of logs from certain premises marked and branded with letters “U. S.,” a part of them located at the millyaTd of a certain mill, and a quantity of ties, bridge timbers, mining timbers and other manufactured lumber, manufactured out of such logs and located at the same place, is sufficient, where the defendant has answered the complaint after his demurrer thereto has been overruled, under the rule that the statutes should be liberally construed for the benefit of the laborer, to sustain a decree for a lien on the logs so marked and the lumber manufactured from such logs and located at the mill.</p> <p>Logs and Logging — Liens—Foreclosure—Evidence.</p> <p>4. In a suit to foreclose a logging lien, oral evidence is admissible to aid the description of the property given in the complaint.</p> <p>Equity — Jurisdiction—Retention of Jurisdiction Acquired.</p> <p>5. When a court of equity has acquired jurisdiction over some portion of a controversy, it will proceed to decide the whole issues and award complete relief, though the rights of the parties are strictly legal and the final remedy is of a kind that may be granted by a court at law.</p> <p>[As to rule that equity on assuming jurisdiction for one purpose will retain it for all purposes, see note in Ann. Cas. 1912A, 803.]</p> <p>Logs and Logging — Logging Lien — Foreclosure—Jurisdiction.</p> <p>6. A court of equity having acquired jurisdiction of a suit to foreclose a logging lien, may enter a decree for damages, as authorized by Section 7476, L. O. L., against a defendant who has rendered it difficult or impossible to identify any of the property covered by the lien, or has injured or destroyed it.</p> <p>Logs and Logging — Liens—Property Subject.</p> <p>7. Where laborers are entitled to liens on logs under Section 7461, L. O. L., giving a lien to laborers in logging camps, their right to such liens extends to ties, timbers and lumber manufactured from the logs.</p> <p>Logs and Logging — Liens—Accounting.</p> <p>8. Where it was agreed that unmarked logs distributed along a road should be collected, sold, and the proceeds applied on logging liens, while the lien claimants should show the items of expense charged against such proceeds, yet if they fail to do so and there is no evidence tending to show that the net proceeds exceeded the amount credited on the lien, the account will be sustained.</p>

<p>Fraud — Pleading—Knowledge of Defrauding Party.</p> <p>1. Under Seetion 85, L. O. L., providing that in the construction of a pleading its allegations are to be liberally construed, and Section 64, abolishing all forms of pleading in actions at law, allegations in the answer that the principal defendant was induced to enter into the surety bond sued on by deceit and false representations, and that the representations were made to deceive defendants, who, relying thereon, did not make a detailed investigation, authorized the admission of evidence of the fraud, though it was not specifically alleged that plaintiff knew that the representations were false.</p> <p>[As to burden of proving the fairness of a transaction, see note in Ann. Cas. 1912A, 704.]</p> <p>Fraud — Pleading—“Scienter.”</p> <p>2. The term “scienter" imports knowledge and express knowledge of the falsity of the representations is not essential, but the scienter may be averred by a form implying knowledge.</p> <p>Contracts — Construction—General Rules.</p> <p>3. Under Section 715, L. O. L., providing that the office of the court is simply to ascertain and declare what is, in terms or substance, contained in a contract, not to insert what has been omitted or to omit what has been inserted, and where there are several provisions such construction is, if possible, to be adopted as will give effect to all, where a modification of a contract for the clearing of land within a certain time, agreed to by the surety of the contractor, provides for an extension of time for doing the work in ease the contractor is unable, by diligent effort, to procure two donkey-engines, the surety, to maintain the defense that the contractor is entitled to an extension, must show performance of condition.</p>

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Moore. This is an action by George K. Fargo and G. A. Baker against W. T. Wade to recover money.

<p>Carriers — Private Carriers — Liability.</p> <p>1. A private carrier of goods is governed by the law applicable to ordinary bailees.</p> <p>Carriers — Carriage of Goods — Remedies—Nature and Form.</p> <p>2. Where a tort has been committed with respect to property committed to a private carrier, the shipper may either bring an action for the tort or waive it and sue for a breach of the contract of bailment.</p> <p>[As to liability of bailee for misuser, see note in 12 Am. Dec. 619.]</p> <p>Carriers — Carriage of Goods — Actions—Pleading.</p> <p>3. A complaint, alleging that an agreement was entered into whereby the defendant, in consideration of $12.50, undertook to transport hogs, and that he would furnish a safe barge and deliver the hogs in proper condition, but failed to perform his agreement in that through his negligence part of the hogs were drowned, does not undertake to charge the defendant as an insurer, but as a bailee, and is sufficient.</p> <p>[As to burden of proof of negligence on part of carrier of livestock, see note in Ann. Cas. 1913E, 311.]</p> <p>Appeal and Error — Exceptions in Trial Court — Defect of Parties— Waiver.</p> <p>4. Where no exception was taken at the trial on the ground that the evidence showed that a person not a party to the aetion had an interest in the subject matter, the objection of want of the parties was waived.</p> <p>Parties — Plaintiffs—Persons Who must Sue.</p> <p>5. One employed to feed hogs under an agreement that he was to receive the value of one third of their increase in weight in excess of 125 pounds has no such interest in them as to render him a necessary party to an action for loss of the hogs in shipment.</p> <p>Shipping — Carriage of Animals — Limitation of Liability.</p> <p>6. In an aetion for the loss of hogs in shipment, it will be assumed, in the absence of evidence, that the scow used in transporting the hogs was of sufficient capacity to authorize the owner to interpose the defense afforded by Harter Act of February 13, 1893, Chapter 105, Section 3 (27 Stat. 445,"U. S. Comp. Stats. 1901, p. 2946), providing that the owner of a vessel transporting property, exercising due diligence to. make the vessel seaworthy and properly manned, equipped and supplied, shall not be liable for damages from faults or errors in navigation, nor from dangers of the sea or other navigable water, or the inherent defects, quality or vice of the thing carried, nor for loss from any act or omission of the shipper of the goods, his agent or representative.</p> <p>Courts — Concurrent Jurisdiction — Statutory Provisions.</p> <p>7. Under Judiciary Act of September 24, 1789, Chapter 20 (1 Stat. 76, § 9), giving state and federal courts concurrent jurisdiction of causes of aetion in admiralty, where only a common-law remedy in personam is sought, the right of plaintiffs to select the forum cannot prevent the defendant from setting up in the state court the defense of nonliability, in that the loss complained of arose from the dangers of navigation of a navigable stream.</p> <p>Shipping — Carriage of Animals — Liability of Carrier.</p> <p>8. In an action for the loss of hogs in shipment, where it was shown that the tng and tow encountered a high wind, producing a heavy swell in the Columbia River, and the vessel began to sink and was towed to the bank, where the stern settled, drowning 16 of the hogs, and a hole was discovered in the after rake above the usual water line, but defendant testified that when the voyage was commenced the scow was seaworthy, the finding of the court that the portions of defendant’s answer with regard to the navigation of the scow and compliance with the laws of navigation and the evidence with regard thereto wer’e immaterial, was error.</p>

From Douglas: Jambs W. Hamilton, Judge. This is an action by W. E. Chapman against the First National Bank of Roseburg, in which judgment was rendered in favor of plaintiff, and defendant appeals. Department 2.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Eakin. This is a suit by D. T. Burness, doing business under the name and style of Burness & Martin, against the Honeyman Hardware Company and the Portland Tool Works, to foreclose a mechanic’s lien.

From Coos: John S. Coke, Judge. The defendant A. E. Gear and one Jesse Dalrymple were convicted of selling intoxicating liquor to a minor, and the defendant Dalrymple appeals. The facts as far as material herein are set forth in the opinion of the court. For appellant there was a brief and an oral argument by Mr. Tom T. Bennett. Department 1.

From Clatsop: James U. Campbell, Judge. This is a suit by Robert Carruthers and Frans Kankkonen against City of Astoria (a municipal corporation), Olof Anderson, as auditor and police judge of the City of Astoria, and H. F. Prael, as city treasurer of the City of Astoria, and Scandinavian-American Bank (a corporation). From a decree for defendants, plaintiffs appeal. Respondents now move to dismiss the appeal, the grounds of which are set forth in the opinion of the court.

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by F. A. Smith against L. D. Kinney.

Prom Coos: Lawrence T. Harris, Judge. Tbis is an action by tbe L. C. Smith & Brothers Typewriter Company against C. P. McGeorge. Prom an order setting aside the judgment in favor of defendant, he appeals. Submitted on briefs without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).

From Clackamas: Henry L. Benson, Judge. This is a suit by Sarah A. Chase against the city of Oregon City and the Oregon Bridge & Construction Company. In the Circuit Court there was a decree for plaintiff and’ defendants appeal. The facts are set forth in the opinion of the court. Department 2.

Prom Josephine: Prank M. Calkins, Judge. In Banc. Statement Per Curiam. A decree was rendered in the suit of P. J. Page, substituted as plaintiff for Seymour Bell, against W. B. Sherman, Cora S. Turner and T. H. Turner, on the 10th day of December, 1913. Counsel for defendants filed a motion to modify this decree.

From Multnomah.: George N. Davis, Judge. This is an action for libel by P. L. Willetts against W. T. Scudder. From a judgment in favor of plaintiff, defendant appeals. The facts are stated in the opinion of the court. Department 1.

<p>Logs and Logging — Title—Construction of Contract.</p> <p>1. Where the former owner of land had sold the timber thereon, to be removed within a certain time, and then conveyed by quitclaim to a corporation, which in turn conveyed to plaintiff, reserving the timber “in accordance to the contract” of sale, and a mutual release was afterward executed by the sellers and buyers of the timber and the corporation, after which the corporation made the sale of the timber under whieh defendant claims, the reservation in the conveyance to plaintiff was inoperative after the release, and. plaintiff is the owner of the timber on the land.</p>

From Tillamook; William Galloway, Judge. Department 1. Statement by Mr. Justice Bubnett, Tbe plaintiff, M. W. Harrison, alleges bimself to be tbe owner of certain lands in Tillamook County, part of which, he says abuts upon Tillamook Bay, an arm of the sea in which the tide ebbs and flows.

<p>Street Railroads — Ordinances—Postponement of Operation.</p> <p>1. Under .Section 7007, L. O. L., requiring every street-ear to have fenders of a kind therein prescribed, provided that, whenever in the judgment of the mayor and members of the common council of any city it shall be for the best interests of the residents to substitute another approved design of fender, the mayor and council may do so on entering on the records the reason for the substitution, where a city ordinance, enaeted over eight years after this section went into effect, declares the judgment of the mayor and council that a certain kind of fender should be substituted, a portion of the ordinance postponing its operation for over three months was ultra vires and void.</p> <p>[As to power of municipal corporations to make and enforce regulations for the public protection from street railways, see note in 104 Am. St. Rep. 636.]</p> <p>Street Railroads — Operation—Equipment of Oars.</p> <p>2. The operation of street-ears not equipped with a fender, as required by a valid city ordinance, from which an injury to a child upon the track resulted, was negligence per se.</p> <p>New Trial — Proceedings to Procure — Sufficiency of Motion.</p> <p>3. Though a motion for new trial did not specifically state that there was no evidence to sustain the verdict as to some material issue, the court properly granted a new trial, where such was the fact.</p>

<p>Courts — Federal Courts — Review of Proceedings — Effect of Transfer of Cause.</p> <p>1. A judgment of conviction of’ a felony by a federal District Court, affirmed by the Circuit Court of Appeals, continues in force, notwithstanding a writ of certiorari from the United States Supreme Court, until reversed, which is done only when errors are found in the record upon which it rests and where committed previously to its rendition.</p> <p>Attorney and Client — Disbarment of Attorney — Conviction of Felony.</p> <p>2. The effect of a conviction of felony as a ground for disbarring an attorney is not annulled by a writ of error and supersedeas.</p> <p>[As to disbarment of attorneys for criminal acts in advance of their conviction, see note in 114 Am. S't. Rep. 839.]</p>

From Coos: John S. Cone, Judge. Department 2. Statement by Mr. Chief Justice McBride. This is a suit by Joseph L. Lapp against the City of Marshfield, of the county of Coos and State of Oregon, a municipal corporation, and J. W. Carter, as marshal of the said City of Marshfield, to enjoin the collection of certain assessments for the improvement of Cedar Street in said city.

<p>Trial — Trial by Court — Necessity for Pindings.</p> <p>1. Under Article VII, Section ¿5, of the Constitution, as amended November 8, 1910, guaranteeing the right of trial by jury where the value in controversy exceeds $20, and Section 157, L. O. L., authorizing waiver of trial by jury by consent of the parties and assent of the trial court, Section 158, requiring the decision t-o be given in writing, stating the facts found and conclusions of law separately, and the findings and judgment to be entered in the journal in case of trial by the court, and Section 159, providing that the findings of the court upon the facts shall be deemed a verdict, a judgment on trial by the court, without findings of fact or conclusions of law, is void.</p>

From Multnomah : Henry E. McGinn, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Milton W. Seaman against Jane Whalley Muir, executrix of the estate of William T. Muir, deceased, and the Merchants’ National Bank. The complaint states substantially that the Oregon Traction Company, a corporation, was indebted on March 15, 1906, to sundry persons in amounts aggregating $2,680.53.

<p>Statutes — Special Laws — Suit Against State.</p> <p>1. Laws of 1913, Chapter 346, granting leave to a person named to institute suit against the state to determine the interest of the state in certain lands, is a special law, violative of Article IV, Section 24, of the Constitution, authorizing provision by general law for suit against the state, but forbidding any special act authorizing such suit.</p> <p>[As to what is special legislation as forbidden by the Constitution, see note in 21 Am. St. Rep. 780.]</p> <p>Constitutional Law — States—Privileges and Immunities of Citizens— Suit Against State.</p> <p>2. Laws of 1913, Chapter 346, giving leave to a person named to institute suit against the state to determine the interest of the state in certain lands, grants a privilege not granted to any other citizen, in violation of Article I, Section 20, of the Constitution, forbidding any law granting to any citizen privileges or immunities which, upon the same terms, shall not belong to all citizens.</p> <p>[As to actions against states, see note in 12 Am. Dec. 517.]</p> <p>Statutes — Special Laws — Court Practice.</p> <p>3. Laws of 1913, Chapter 346, granting leave to a person named to institute suit in Multnomah County against the state to determine the interest of the state in lands located in Linn and Crook counties, while Section 396, L. O. L., requires suits in equity for determination of an adverse interest in real property to be commenced and tried in the county where the subject of the suit, or some part thereof, is situated, is violative of Article IV, Section 23, of the Constitution, forbidding any special laws regulating the practice in courts of justice, or providing for changing the venue in civil eases.</p> <p>States — Actions Against.</p> <p>4. Section 516, L. O. L., provides that any person claiming an interest in real estate not in the actual possession of another may sue one claiming interest adverse to him to determine such conflicting claims. Section 729 authorizes courts to take judicial notice of official acts of the legislative departments of the state and the United States. Act of July 5, 1866, Chapter 174 (14 Stat. 89), grants certain lands to the State of Oregon in aid of the construction of a military road. Laws of 1866, pages 58, 60, grants such lands to plaintiff’s predecessor, in interest. Meld, that though the patent to the land in question named as the grantee the State of Oregon for the use and benefit of the plaintiff’s predecessor, the state is claiming no interest, which would authorize the maintenance of the suit.</p>

From Marion: Percy R. Kelly, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by J. C. Robertson against L. B. Frey for damages for fraud and deceit. Tbe cause was tried to tbe court and jury and a verdict rendered in favor of tbe plaintiff. From a judgment rendered tbereon, tbe defendant appeals.

<p>Statutes — Special and Local Laws — Court Practice.</p> <p>1. A statute attempting to transfer all probate business and jurisdiction of the County Court in Multnomah County to the Circuit Court, leaving Section 1241, L. O. L., relating to the proceedings in a County Court on a claim against a decedent’s estate to apply to the Circuit Court, violates Article IY, Section 23, subdivision 3, of the Constitution, forbidding any local or special laws regulating the practice in courts of justice.</p> <p>[As to what are local or private laws, see notes in 23 Am. Dec. 543; 1 Am. St. Pep. 903.] '</p> <p>Jury — Right to Trial by Jury — Statutory Provision.</p> <p>2. Though Section 1241, L. O. L., provides for hearing and determining in a summary manner all demands against an estate, a person presenting a claim for $4,682.77 against an estate is entitled to trial by jury.</p> <p>[As to conditions and restrictions that may be imposed by legislation upon trial by jury, see note in 98 Am. St. Rep. 538.]</p> <p>Jury — Right to Trial by Jury — Waiver.</p> <p>3. One presenting a claim against a decedent’s estate can waive the right to trial by jury only as provided by statute.</p> <p>Executors and Administrators — Claims Against Estate — Form of Remedy.</p> <p>4. Section 1241, L. O. L., authorizing a trial in the County Court in a summary manner of a claim against a decedent’s estate, is not exclusive, but, under Section 386, authorizing the commencement of an action against an executor or administrator at any time after six months from the granting of letters testamentary or of administration till final settlement, the matter may be sued in the Circuit Court directly.</p> <p>ON REHEARING.</p> <p>Statutes — Special Laws — Court Practice — “Trial Jury.”</p> <p>5. In view of Section 935, L. O. L., giving the County Court concurrent jurisdiction where the subject of controversy does not exceed the value of $500, and exclusive jurisdiction of actions of forcible entry and detainer, Section 936, giving the County Court exclusive jurisdiction in probate proceedings, Section 987, defining a trial jury as a body of men, 12 in number in the Circuit Court, and 6 in the County Court and courts of the justices of the peace, and Section 1135, prescribing the procedure in County Courts in probate proceedings by citation, etc., Laws of 1913, page 769, providing an additional circuit judge for the fourth judicial District Court, abolishing the office of the county judge in Multnomah County, transferring its business to the Circuit Court, and installing the then county judge in the office of Circuit Court judge till his successor is elected and qualified, and repealing all acts and parts of aets in conflict therewith, is in violation of Article IY, Section 23, of the Constitution, prohibiting special laws regulating practice in courts of justice.</p> <p>Statutes — Special Laws — “Practice.”</p> <p>fi. Within Article IY, Section 23, of the Constitution, prohibiting special laws regulating the practice in courts of justice, “practice” means those legal rules which direct the eourse of procedure to bring parties into court, and the eourse of the court after they are brought in, and includes the formula by which the court’s jurisdiction is first asserted and afterward exercised in respect to any litigation in all its phases, till finally completed.</p> <p>Courts — “ Jurisdiction.”</p> <p>7. “Jurisdiction” as applied to courts is power to hear and determine issues of laws and fact, which means authority to perform any judicial function.</p> <p>Statutes — Special Laws — Creation of Courts.</p> <p>8. Article YU,. Section 1, of the Constitution, declaring that the judicial power shall be vested in one Supreme Court and in such other courts as may be created by law, does not authorize the legislature to establish new courts in violation of Article IY, Section 23; forbidding special laws regulating practice in courts of justice.</p> <p>Constitutional Laws — Repeal of Constitutional Provisions — Implied Repeal.</p> <p>9. Repeals of constitutional provisions by implication are not favored.</p>