Volume 76 — Oregon Reports

<p>Appeal and Error—Record—Objections.</p> <p>1. Respondent’s remedy, when the appellant’s abstract misquotes the bill of exceptions and contains argumentative matter proper only for a brief, is to serve on the clerk of the Supreme Court and on appellant’s counsel an additional abstract, as prescribed by Supreme Court Rule 7 (56 Or. 616, 117 Pac. x), and not by motion to strike the abstract from the files.</p> <p>ON THE MERITS.</p> <p>Sales—“Conditional Sale.”</p> <p>2. A contract whereby the possession of personal property is delivered to the buyer, who agrees to pay a price therefor with the condition that the title remain in the seller until the price is paid, is a conditional sale.</p> <p>[As to what constitutes conditional sale, see notes in 46 Am. Rep. 295; 94 Am. St. Rep. 234. As to sale conditioned that title remain in vendor until payment, when and against whom fraudulent, see note in 58 Am. St. Rep. 386. As to sale conditional upon the final payment of the purchase price, see notes in 37 Am. Rep. 664; 40 Am. Rep. 21.]</p> <p>Sales—Conditional Sale—Suit for Purchase Price—Effect.</p> <p>3. Where one who sold goods under a conditional sale contract recovered judgment against the buyer for the purchase price and levied execution against part of the property, he thereby elected to treat the title as having passed to the buyer, and cannot thereafter retake the property under his reserved title.</p> <p>[As to election of remedies, when resort to one bars the prosecution of another, see note in 1 Am. St. Rep. 626.]</p>

From Umatilla: Gilbert W. Phelps, Judge. In Banc. Statement by Mr. Justice Harris. An action was commenced upon the relation of John W. Dyer, against R. F. Kirkpatrick, for the purpose of determining who, if anyone, was the mayor of the City of Pendleton. W. F. Matlock was, in December, 1913, installed as the duly elected and qualified mayor of Pendleton, and he continued to serve as such officer until August 31, 1914, when he died.

From Umatilla: Gilbert W. Phelps, Judge. In Banc. Statement by Mr. Justice Harris. W. L. Bowlsby was convicted, in the recorder’s court of the City of Pendleton, of violating an ordinance which prescribed certain regulations for pawnbrokers and second-hand dealers. The proceedings of the recorder’s court were carried to the Circuit Court by a writ of review, and from a judgment dismissing the writ plaintiff appeals.

From Multnomah: William N. Gatens, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action by A. A. Cunningham against J. C. Friendly. At a former hearing before this court, the case was reversed, and costs in the court below were awarded to the defendant, who filed his cost bill, in which were items amounting to $4.80, clerk’s fees, and cost of extending testimony: Original $56, copies $18 and $15, total $89.

From Jackson: James W. Hamilton, Judge. Department 1. Statement by Mr. Chief Justice Moore. This is a suit by Mrs. C. J. Robison against J. E. Hicks, administrator of tbe estate of Charles Bland, deceased, and others, to set side a decree and to impress an alleged lien on real property.

From Hood River: William L. Bradshaw, Judge. Department 1. Statement by Mr. Chibe Justice Moore. Tbis is an action by C. C. Sonniksen against tbe Hood River Gas & Electric Company, a corporation, and is based on tbe employers ’ liability law, to recover damages for personal injury resulting from a shock of electricity and charged in the complaint to have been caused by the defendant’s negligence.

<p>Appeal and. Error — Findings of Court — Effect in Equitable Actions.</p> <p>1. Where the evidence in an action to cancel a note and mortgage was in conflict, the findings of the trial judge were entitled to great weight.</p> <p>Cancellation of Instruments — Note and Mortgage not Intended to Operate — Sufficiency of Evidence.</p> <p>2. Evidence held sufficient to sustain plaintiff’s contention that a note and mortgage given to defendant bank had not been intended by the parties to operate as such, but merely to serve the bank as an accommodation by apparently increasing its resources on examination by the state bank examiner.</p> <p>Cancellation of Instruments — Evidence to Justify Relief.</p> <p>3. To justify the cancellation of a note and mortgage on the ground that the instruments had been given as a matter of accommodation, and not to operate in their apparent character, the evidence must be clear and convincing.</p>

<p>Witnesses — Competency—Grand juror.</p> <p>1. Section 1427, L. O. L., declares that a grand juror cannot be questioned for anything he may say or any vote he may give while acting as such, except for a perjury of which he may have been guilty, while Section 1431 prohibits the disclosure of facts by a grand juror. Held, that, in a criminal prosecution, it was not error to permit a grand juror to testify that accused was examined before the grand jury.</p> <p>[As to grand jurors as witnesses, see note in 12 Am. St. Rep. 915.]</p> <p>Intoxicating Liquors — Offenses—Statutes—Constitution.</p> <p>2. The home rule amendment of 1906 to Section 2, Article XI, of the Constitution, whereby municipalities were authorized to prepare their own charters subject to the Constitution and criminal laws of the state, did not abrogate Section 2142, L. O. L., providing that one who sells liquor to a minor shall, upon conviction, forfeit his license, so as to permit a city to authorize a violation of that law.</p>

<p>Witnesses — Re-examination—Explanation of Testimony.</p> <p>1. It is competent for the state to explain a transaction called out by defendant on the cross-examination of a witness.</p> <p>Criminal Law — Instructions—Accomplices—Corroboration.</p> <p>2. A charge that the evidence, aside from the testimony of an accomplice, must show defendant’s connection with the commission of the crime is correct, though it does not include the provision of Section 1540, L. O. L., tha/t corroboration is not sufficient if it merely show the commission of a crime.</p> <p>[As to whether conviction may be based upon the uncorroborated testimony of accomplices, see notes in 71 Am. Dec. 671; 34 Am. Rep. 408; 98 Am. St. Rep. 158.]</p> <p>Witnesses — Competency—“Unsound Mind.”</p> <p>3. A weak-minded degenerate is not a person of “unsound mind,” prohibited from testifying by Section 731, L. O. L., and his testimony, admitted without objection, will not be rejected.</p> <p>[As to admissibility of evidence of insane witness, see notes in 28 Am. St. Rep. 942; 128 Am. St. Rep. 942. As to competency of insane person as witness, see note in Ann. Cas. 1913E, 323.]</p>

<p>Executors and Administrators — Necessity of Administration — Lien on Land — Rights of Heirs.</p> <p>1. Where plaintiff’s father conveyed land to him on the condition that he should pay $600 to his brother when the latter became 21 years of age, charging the amount as a lien on the land, and authorizing the lien to be foreclosed for failure of payment, the fact that such brother died previous to attaining his majority, without letters of administration being taken out on his estate, did not divest the claims of his heirs to the amount of $600 secured by the land.</p> <p>Limitation of Actions — Maturity of Obligation.</p> <p>2. Where a father conveyed land to his son, charging it with a lien to secure the payment by the grantee of $600 to his brother, when the beneficiary should reach his majority, and such beneficiary died before he attained such age, his previous death eould not hasten the maturity of the debt to initiate the period of the statute of limitations.</p> <p>Payment — Sufficiency of Evidence.</p> <p>3. In an action to reform a deed and' to determine whether plaintiff, to whom his father had granted land charged with the payment of $600 to his brother when the latter should reach his majority, was liable to the brother’s heirs for the amount, evidence held insufficient to show payment of such amount to the father as such heir.</p>

<p>Statutes — Title—Sufficiency.</p> <p>1. The title of Laws of 1913, page 143, entitled “An act to regulate and license * * the business of commission merchants * * and to require them to give a bond * * for the benefit of their consignors and prescribing a penalty for the violating of any of the provisions in this act,” is not sufficient within Article IV, Section XX, of the Constitution, providing that every act shall embrace but one subject, and matters properly connected therewith, which shall be expressed in the title, to justify provisions in the body of the act conferring on the State Railroad Commission power to require from the merchants statements of their business and to- revoke licenses for cause - on notice and hearing; and, where these provisions are a dominant feature of the act, the entire act is invalid.</p> <p>[As to title of statutes, when sufficient, see note in 64 Am. St. Rep. 70. As to title of statutes when embrace but one subject and what may be included thereunder, see note in 79 Am. St. Rep. 456. As to effect of provisions requiring statutes to embrace but one subject, which shall be expressed in the title, see note in 61 Am. Dec. 337. As to validity of statute having title more comprehensive than act itself, see note in Ann. Cas. 1912a, 102. As to validity of statute providing penalty or punishment not mentioned in title, see note in Ann. Cas. 1912D, 157.]</p>

<p>Wills — Estates—Interest Devised.</p> <p>■ 1. Where a testator, after devising property in fee, added a codicil, declaring that the devise should be for the sole and separate use of the devisee, and that in ease of his death without lawful issue, to others, the devisee took a life estate with remainder over.</p> <p>Wills — Contingent Remainders — What are.</p> <p>2. Where a testator devised property to one for life, remainder to his issue, and in ease of his death without issue remainders over, the issue of the devisee have a contingent remainder, because the fee could only vest in them if they survived him.</p> <p>Remainders — Contingent Remainders — Conveyances.</p> <p>3. One having a contingent remainder may eonvey it.</p> <p>[As to contingent remainders, how barred, defeated or conveyed, see note in 17 Am. St. Rep. 839.]</p> <p>Wills — Construction—Contingent Remainders and Executory Devises.</p> <p>4. A future estate will be construed as a contingent remainder rather than an executory devise.</p> <p>Remainders — Contingent Remainders — Defeat.</p> <p>5. Where a testator devised land to his son for life, remainder to the son’s issue, with contingent remainders over, and the issue of the son, who were living, as well as other contingent remainder-men, conveyed their interest to the devisee, the devisee acquired the estate in fee, contingent remainders to unborn persons being defeated because the life estate upon which they were based was destroyed.</p>

<p>From Marion: Percy R. Kelly, Judge.</p> <p>This is an action by F. P. Smith against Yan Walters and Anna Walters and W. S. Mott. From a judgment in favor of plaintiff, defendant Mott appeals.</p> <p>Department 1.</p>

<p>From Multnomah.: William N. Gatens, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is an action by James A. Taylor against John H. Peterson.</p> <p>The most essential allegation of the complaint is the following:</p> <p>“That commencing on or about January 1,1909, and ending on or about February 1, 1912, the plaintiff, at the special instance and request of said defendant, performed work, labor, and services for said defendant in negotiating for the sale of the above-described property and as a direet result of said negotiations, work, labor and services, and through the efforts of said plaintiff, said property above described was sold for said defendant for the sum of $35,000. ’ ’</p> <p>Asserting that the reasonable value of plaintiff’s services mentioned is $5,000, and that the defendant repeatedly agreed that said sum should be considered between them as such reasonable value, the plaintiff demands judgment for that amount. The answer traverses all the allegations of the complaint, and alleges:</p> <p>“The contract set forth in the complaint is oral and not in writing and is void by virtue o.f Section 808 of Lord’s Oregon Laws.”</p> <p>The reply does not deny that the contract was oral, but does traverse the conclusion of law, to the effect that the agreement is void under the statute of frauds of this state. At the close of plaintiff’s case in a trial by jury the Circuit Court granted a judgment of non-suit on motion of the defendant, and the plaintiff appeals.</p>

From Coos: John S. Coke, Judge. This is a quo warranto proceeding by tbe State of Oregon, upon the information of L. A. Liljeqvist, district attorney for Coos County, Oregon, against E. E. Johnson, J. E. Norton, T. P. Hanly, R. H. Rosa, R. E. L. Bedillion and tbe Port of Bandon, a pretended municipal corporation. From a judgment for defendants, tbe informant appeals. Department 2.

From Linn: William Galloway, Judge. Department 2. Statement Per Curiam. This is a suit by Elizabeth Wiley against J. J. Whitney, Lizzie Whitney, Arthur Stitts, Fred Wadtli and Will Putnam.

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Benson. ■ This is a suit in equity by cross-bill by the Cody Lumber Company, a corporation, against Arthur T. Coach, Joseph W. Coach and Mary E. Cary. The facts are as follows: On the 12th day of April, 1913, the defendants herein began an action at law against plaintiff for the collection of seven promissory notes aggregating the sum of $14,140.81, with interest.

From Douglas: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice Burnett. This suit had its inception in a cross-complaint in equity as a defense against an action in ejectment brought against Kittie Brown and others by E. Y. Weaver, who is a defendant herein.

<p>From Yamhill: Webster Holmes, Judge.</p> <p>Department 1. Statement by Mr. Chief Justice Moore.</p> <p>This is a suit by George P. Skelton against the City of Newberg, a municipal corporation, to remove a cloud from the title of real property and to enjoin the</p> <p>enforcement of a judgment, condemning 17.8 acres of the plaintiff’s land, with a spring thereon, and the right to all the water flowing therefrom to be used by the city and its inhabitants. A demurrer to the complaint on the ground that it did not state facts sufficient to authorize equitable intervention was sustained, and the plaintiff declining further to plead, the suit was dismissed, and he appeals.</p>

From Multnomah: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice McBride. The Oregon Lumber & Fuel Company, a corporar tion, brought a suit against May Garland Hall and others to foreclose a materialman’s lien upon lot lb, block 84, in Laurelhurst Addition to the City of Portland, making the appealing defendant Title & Trust Company and the other defendants, who also claimed liens upon the property, parties.

From Clackamas: James U. Campbell, Judge. In Chambers before Mr. Justice Harris. This is a suit by Fred W. Birkemeier on behalf of himself and others similarly situated, against-the town of Milwaukie, a municipal corporation, G. C. Pelton, as mayor, Charles H, Counsell, C. C. Peary, B. G. Skulason and W. H. Grasle, as councilmen, D. P. Mathews,, as recorder, and A. L. Bolstad, as treasurer of the town of Milwaukie, a municipal corporation, and their successors in office.

From Clatsop: James A. Eakin, Judge. This is an action by Mrs. J. H. Proctor against Robert R. Jeffery, as executor, and Nellie Mason, as executrix of the will of R. L. Jeffery, deceased. Judgment for plaintiff, and defendants appeal. On motion to dismiss appeal. In Bane.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mu. Justice Burnett. This' is an action by May E. A. Hartman, now May E. A. Osmund, and George H. G. Hartman, who were children and beneficiaries of Johanna H. Hartman, to recover upon a certificate of membership issued by the defendant corporation insuring her life for their benefit in the sum of $1,000.

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>In Banc. Statement by Mr. Justice Ramsey.</p> <p>This suit appears to have been commenced in 1910 by James E. Stacey, Daniel Myers, David J. Nye, George T. Briggs and C. H. McKeown, against James H. McNicholas, Old Channel Hydraulic Mines Company, a corporation, Thomas W. Browning, Old Channel Mining Company, an Illinois corporation, and William Ulrich, trustee of the Old Channel Mining-Company, bankrupt, for an accounting and to have a receiver appointed. The respondents move to dismiss the appeal.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is an appeal by the Old Channel Mining Company, an Illinois corporation, and William Ulrich, its trustee in bankruptcy, from a decree authorizing J. F. Reddy, the receiver, to sell certain property belonging to the above corporation and confirming as liens against such property certain receiver’s certificates issued under a prior receivership.</p> <p>The pleadings show that prior to August 10, 1909, the Old Channel Mining Company was the owner and in possession of certain placer mining ground and mining property situate in Josephine County, Oregon. This company on the above date entered into a contract whereby it was to sell its property to James H. McNicholas for $110,000, on terms of $25,000 cash and $85,000 represented by notes secured by mortgage on the property. In order to facilitate matters, the legal title of the property was placed in the name of Thomas W. Browning, who held the same as trustee for the corporation. The sale was consummated, and Browning executed a deed; McNicholas paying the agreed amount in cash and executing a mortgage on the property for the balance. McNicholas thereafter organized the Old Channel Hydraulic Mines Company, to which on May 2,1910, he transferred the property purchased from Browning. This latter company assumed the payment of the mortgage given by McNicholas as part payment for the mine. The Old Channel Hydraulic Mines Company did not prosper, and the plaintiffs, being stockholders, brought this suit, asking for an accounting by McNicholas and the appointment of a receiver. The court appointed L. C. Hudson as receiver.</p> <p>As a basis for this suit, after the formal allegations as to the corporate character of the defendant corporations, the plaintiffs in.their averments stated the following, in substance: After McNicholas purchased the mining property, he caused a pretended corporation to be effected under the laws of the territory of Arizona with an ostensible capital of $5,000,000, the shares of which were of the par value of $1 each. Two million shares and over were sold to various persons, among whom were plaintiffs, at from 30 to 75 cents per share. One million shares were pretended to be held in the treasury, and the remainder thereof, about two million, were held by the defendant James H. McNicholas, who never paid upon the mining property any sum other than the $25,000. The mortgage was largely fictitious and intended to privately, illicitly and fraudulently benefit him or his associates. McNicholas falsely represented the mining property to be of very great value, the best placer mine in the world, that operations would commence with a production sufficient to pay 1 per cent per month, and that the corporation would acquire good title to the mine. McNicholas concealed the fact of the mortgage. He never transferred the mine to the Arizona corporation nor accounted for the proceeds of the stock sold. Upon discovering the condition of affairs, the plaintiffs caused the Oregon company to be organized, capitalized the same as the Arizona corporation, and placed the stock thereof in the hands of the trustee. McNicholas represented to the plaintiffs and other stockholders that large sums of money would be received from the clean-up of the mine for the season of 1909-1910, but in truth the property was in the possession of a lessee who cleaned up all the gold resulting from the operation of the mine up to February 11, 1910. McNicholas, as the secretary of the Oregon corporation, took charge of the operations thereof during said mining season and represented that more stock must necessarily be sold to cover operating expenses, as a result of which he sold large amounts of stock to the plaintiffs and others for such purpose, but applied no part of the proceeds to the payment thereof, took charge of the clean-ups thereafter, and at the close of the mining season there existed a deficit for operating expenses, none of which has been paid, and for which liens have been filed. The Arizona as well as the Oregon corporation was largely overcapitalized. The property did not warrant a legitimate capitalization exceeding $1,000,000, and it is necessary that the same be reduced and canceled in all sums over and above tbe amounts actually held by bona fide subscribers. Tbe plaintiffs further allege that, by reason of the facts set forth, the Oregon corporation is -wholly insolvent and unable to continue its corporation business; that all the directors thereof reside outside the' State of Oregon, except James McNicholas, who claims and pretends to have a residence in Oregon, but who is in fact most of the time without the state. Plaintiffs pray that a hearing be had; that defendant James McNicholas be required to account for all stock sold by him in both corporations; that the true consideration for the purchase of the mine be ascertained, the amount of the mortgage be fixed, the indebtedness of the company be determined and paid; that a receiver be appointed to take charge of the property; that receiver’s certificates be issued for funds for operating expenses and other charges.</p> <p>The receiver filed his oath and undertaking on August 9, 191.0, and on the 27th of that month the court made an order empowering him to borrow money for the purpose of preserving and operating the property, and authorizing the issuance of receiver’s certificates, making the same a lien upon the property. On September 13th of that year the plaintiff filed an affidavit and order for publication of summons and affidavit of mailing summons. On September 26th Thomas W. Browning was granted leave to sue the receiver in a suit to foreclose his mortgage. Plaintiffs filed their proof of publication of summons November 19, 1910. On December 1st of the same year a motion for a default against James McNicholas was filed. Thereafter, on December 27th, findings of fact and conclusions of law were filed and a decree rendered and entered which on January 3, 1911, was set aside and vacated as to the defendant Thomas W. Browning. With permission of the court, Browning filed an answer to the effect that the mortgage executed by Mc-Mcholas was genuine, that plaintiffs knew of it, and that it was a first lien upon all the real and personal mining property in the sum of $85,000, with interest, and prayed that the same be decreed as such. Browning filed a motion February 6, 1911, supported by affidavits to discharge and restrain the receiver, and objected to the receiver being allowed to work the property, borrow money, incur indebtedness, or do anything that would in any way affect his rights in the property. The court overruled the objections and allowed the receiver to work the property, and in so doing he incurred indebtedness amounting to $4,090.46, including his fees and other expenses. At this time the plaintiffs appeared to have determined that there would be nothing left for them after the satisfaction of the mortgage, or for some other reason abandoned their suit, and about July 10, 1911, the court, on motion of Browning, made an order discharging the receiver. At the time of entering the order, the court left open the matter of the issuance of the receiver’s certificates in settlement of the indebtedness and expenses incurred by the receiver. The parties stipulated that the court might order the clerk of the court to issue such certificates, if any should be issued; neither party waiving any objections to the right of the court to do so. On March 11, 1912, the court made an order dismissing this suit,.and on the same date made another, authorizing the clerk to issue receiver’s certificates in the sums stated above. There were “allowed as a charge against the property in the hands of the receiver.” The appellants now contest the right of the court to appoint a receiver to operate the mine and to authorize the issuance of receiver’s certificates for expenses in so doing.</p> <p>The pleadings further show that nothing was done in this matter for several months. On December 5, 1912, a notice was filed notifying the defendants that the holders of receiver’s certificates would make application to the Circuit Court for the appointment of another receiver, and that a hearing would be had on December 26th. It appears that this notice was served upon the defendants by registered mail. On February 24, 1913, an application for the appointment of a receiver was filed by L. C. Hudson and several other holders of receiver’s certificates, reciting that these certificates issued by order of the court constituted a lien upon the property of the Old Channel Mining Company, that the property was in danger of deteriorating, and asking for the appointment of a receiver, not only for the conservation of the property of the Old Channel Mining Company, pending the payment of the certificates, but f.or its operation, for an order to create a fund for the payment thereof, or, if no funds could be so obtained, for an order authorizing the sale of the property to pay the same. On the same date the court made an order appointing J. F. Reddy as such receiver, and authorized him to take possession of all the property, care for and conserve the same against loss and damage, but to incur no expenses without an order therefor, except to file an inventory, and ordered him to give bond before entering upon his duties. J. F. Reddy did not file his bond until April 17, 1913. On July 8, 1913, less than four months after Reddy qualified as receiver, an involuntary petition in bankruptcy was filed against the Old Channel Mining Company in the United States District Court for the District of Oregon. On July 11, 1913, William Ulrich was duly appointed receiver in bankruptcy by said court and qualified as such on the 12th of that month. August 18, 1913, the district-court made an order decreeing and adjudging the Old Channel Mining Company bankrupt. Reddy, as receiver, appeared in the bankruptcy case and opposed the adjudication, but his motion was denied. Thereafter the'creditors of the company elected William Ulrich trustee of said bankrupt, and he qualified as such. He thereafter, on September 18, 1913, filed a petition in the Circuit Court for Josephine County, asking for an order requiring Reddy, as receiver, to turn over the property of said bankrupt to him, as trustee. This request was denied by the court. On February 4, 1914, the holders of receiver’s certificates filed another notice in this cause and served the same on the attorneys for the trustee. In this notice it was shown that these parties would apply to the Circuit Court for such orders and proceedings as might be necessary to enable petitioners to recover judgment and decree as prayed for in their petition filed on February 24, 1913. Ulrich, as trustee, filed his objections to the entry of such order by the court. The court did not order a hearing of these objections, and over the same entered its decree on April 6, 1914, which is hereby appealed from.</p> <p>J. F. Reddy also represents that an injunction order restraining him, as receiver, from dealing with the property of the Old Channel Mining Company, issued by the United States District Court for Oregon in 1913, was vacated by that court upon his petition filed in November, 1914, and that a proposition to lease the mine with an option to purchase has been made to him as such receiver.</p>

<p>Pleading — Defenses—“Inconsistent Defenses.”</p> <p>1. Defenses are not inconsistent when they may all be true, and are only inconsistent when some of them must necessarily be false if others are true, and in such a ease they cannot be united.</p> <p>Pleading: — Defenses—Inconsistent Defenses.</p> <p>2. In an action for injuries based on the theory of the relation of passenger and carrier between plaintiff and defendant, an answer setting up the Workmen’s Compensation Act as affording the remedies for plaintiff, and alleging that plaintiff was guilty of negligence, does not set forth inconsistent defenses, though allegations in the first defense that plaintiff was riding on the train without the consent or knowledge of defendant, and of plaintiff’s negligence, are irrelevant, because under the compensation act such questions are eliminated.</p> <p>Carriers — Injuries to Passengers — Existence of Relation — Issues.</p> <p>3. Where the complaint, in an action for a personal injury, alleged that the relation of passenger and carrier existed between plaintiff and defendant at the time of the accident causing the injury, defendant could plead and prove that the relation of master and servant existed, and that plaintiff must resort to the relief afforded by the Workmen’s Compensation Act.</p> <p>Carriers — Master and Servant — Passengers—Existence of Relation.</p> <p>4. Plaintiff visited an office of defendant, seeking employment, and was directed by the person in charge thereof to go to defendant’s camp near a designated town to begin work. When he reached the town, he went to defendant’s logging train, and was there directed by the engineer to place his baggage on the pilot of the engine and get aboard. He rode on the pilot to the logging camp. Before leaving the immediate vicinity of the train, he was injured. He did not do any work or receive any compensation from defendant prior to the accident. Held, that the relation between the parties was that of passenger and carrier, and not of employee and employer, within the Workmen’s Compensation Act.</p> <p>Appeal and Error — Harmless Error — Erroneous Rulings on Pleadings.</p> <p>5. Where the relation between plaintiff, suing for a personal injury, and defendant, was that of passenger and carrier, the striking out of defendant’s plea of the Workmen’s Compensation Act was not prejudicial.</p> <p>Carriers — Injuries to Passengers — Contributory Negligence.</p> <p>6. An answer, in an action for injury to a passenger, which alleges that plaintiff was transported by defendant on its logging ■ tra-in gratuitously solely for the benefit of plaintiff and defendant in connection with the business in whieh defendant was engaged, and that plaintiff, on reaching his destination, ran in front of the engine and was injured, sets forth plaintiff’s contributory negligence, though it does not admit any negligence of defendant.</p> <p>[As to who are passengers on a train, see note in 61 Am. St. Rep. 63.]</p>

<p>From Clackamas: James TJ. Campbell, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>This is a suit by Kate Bucbanan Chance, Sarah Merchant Graham and Bose Buchanan Graham against Bobert B. Graham, John W. Graham, William W. Graham, Lillie A. Young, Jane M. Galbreath and Marion C. Young.</p> <p>The plaintiffs and the defendants Lillie A. Young and Jane M. Galbreath are daughters of John Wallace Graham, deceased. The defendants of that name are Ms sons, and Marion C. Young is the husband of Lillie A. Young. The substance of the complaint is that on April 5, 1897, the father owned 308.9 acres, with other land; that he was heavily involved, the realty being mortgaged and in danger of being lost by foreclosure, under which circumstances the owner conveyed it to the two defendants Young to manage and pay off, not only the mortgage, hut also a personal debt from the grantor to Marion C. Young. To that end they were authorized to convey the property for the purpose of realizing funds, together with expenses and payment for the services of the grantees, and, if any of the property were left, it should be reconveyed to the grantor, if then living; otherwise to the plaintiffs and the defendant sons share and share alike. It was recited as a condition that, if the division of property could be made so that the sons might receive the realty and the plaintiffs a proportionate share of their father’s estate in money, the distribution should he so made, hut that in any event the plaintiffs and the defendant sons were to take in equal parts. It is said that the defendants Jane M. Galbreath and Lillie A. Young were to be excluded from the distribution on account of previous advancements having been made to them by their father. The pleading goes on to state that the defendant Marion O. Young, subsequent to the death of the grantor, succeeded in discharging all the indebtedness by sale of a portion of the premises, and that, after fully reimbursing himself for all moneys loaned and services rendered, there remained the 308.9 acres already mentioned, hut there was no money for distribution to the plaintiffs. It is further narrat.ed that in the latter part of December, 1903, and the early part of the following January, the defendants Young conveyed the land to the defendant brothers in substantially equal several parts. It is charged that each of the conveyances was made without consideration, and that all parties thereto had knowledge of the circumstances under which the title passed from the father to his daughter and son in- law. The prayer is to the effect that the sons he compelled to account for the rents and profits accruing’ since the conveyances to them; that they he held as trustees for the plaintiffs for an undivided half of the property; and that whoever holds the title, whether the Youngá or the sons, he required to convey to the plaintiffs accordingly. The defendants, except Jane M. Gal-breath, admit the original title of the father, his deed to the Youngs, his large debt, his death intestate, and the conveyances to the sons; otherwise they deny all the averments of the complaint. Jane M. Galbreath makes similar admissions, denies the advancement to herself, and affirmatively contends that each of the daughters of John Wallace Graham named in the complaint is the owner of, and entitled to, an undivided one-eighth interest in the realty in question. Her affirmative answer was denied. Upon these issues the Circuit Court made findings of fact and conclusions of law favorable to the defendants and a decree dismissing the suit and the cross-bill so called of the defendant Galbreath. From this decree the plaintiffs and the defendant Galbreath appeal.</p>

From Multnomah: Thomas J. Cleeton, Judge. Department 1. Statement by Mr. Justice Harris. This is an action by Peter Macchi against the Portland Railway, Right & Power Company, a corporation, for personal injuries resulting from a collision with a street-car in Portland, Oregon. Grant and Second Streets intersect each other; the former extending east and west and the latter running north and south.

<p>Specific Performance — Right to — Evidence.</p> <p>1. Evidence held insufficient to show such part performance that the court would grant specific performance of a parol agreement to convey realty.</p>

From Umatilla: Gilbert W. Phelps, Judge. The defendant, Arthur Gulliford, was indicted, tried and convicted of the crime of larceny of cattle, and from the judgment and sentence following such conviction he appeals. Submitted on briefs under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi). In Banc.

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

FromMultnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Harris. This is an action by the Saratoga Investment Company, a corporation, against C. W. Kern, Lncina Kern and PaubW. Cnster. The circumstances which gave rise to this action extend over a period of several months.

<p>From Crook: "William L. Bradshaw, Judge.</p> <p>In Banc. Statement Per Curiam.</p> <p>This is a motion to dismiss the appeal, for the reason that the transcript was not filed at Pendleton by the deputy clerk. The appeal is from Crook County, and was filed by tbe clerk of tbis court onwthe 1st day of May, 1914, being witbin 30 days after tbe appeal was perfected.</p> <p>Department 2. Statement by Mr. Justice Bean.</p> <p>This is a suit by the Central Oregon Irrigation Company, a corporation, against Kirk "Whited, to restrain a threatened trespass, and involves the determination of the number of acres of land for which defendant is entitled to water for irrigation under a certain contract. The Circuit Court rendered a decree in favor of defendant, from which plaintiff appeals.</p> <p>The construction of the defendant’s water contract with the plaintiff company under the so-called Carey Act and the statute of Oregon accepting the same is involved in this case. The following transactions bear upon the question, the substance of which are alleged in the pleadings: On or about May 31, 1902, the Pilot Butte Development Company, a corporation organized under the laws of the. State of Oregon, entered into a contract with'the state land board under and pursuant to the provisions of Section 4 of the act of Congress approved August 18, 1894, and of the act of Congress supplemental thereto, commonly known as the Carey Act; and under and pursuant to the provisions of the act of the legislative assembly of the State of Oregon of February 24, 1909 (Laws 1909, p. 377),. entitled “An act to provide for the acceptance by the State of Oregon of certain land, and for the reclamation and disposal of the same.” This, contract provided, among other things, for the construction, control and operation by the Pilot Butte Development Company of an irrigation system designed to reclaim certain arid lands situated in Crook County, Oregon, known as segregation list No. 6, embracing 84,707.74 acres of the public domain, according to the plans, surveys and estimates upon which the contract was based, and including the tracts of land in the defendant’s possession hereinafter described. The agreement was assigned on March 14, 1904, by the Pilot Butte Development Company, with the consent of the state land board, to the Deschutes Irrigation & Power Company, a corporation, which succeeded to all the franchises, liens, rights, privileges and emoluments of the former company under the contract. The sum of $848,557 was recited as the agreed amount to become due to the Pilot Butte Development Company for the reclamation of the irrigable portion of the lands mentioned in the contract, as then estimated; and the snm of $1 per acre for each irrigable acre of land for which water ■should be furnished for irrigation, pursuant to said contract, in each legal subdivision thereof, was established and agreed upon as the annual charge to be paid to the Pilot Butte Development Company for the maintenance of the irrigation system. It was further agreed that the development company, its successors or assigns, should have a lien upon the lands for the amounts due or to become due from the owners and occupants thereof for such annual maintenance charge and for interest thereon at the rate of 6 per cent per annum.- About February 13, 1903, the state land board, acting for the State of Oregon, entered into a contract with the Secretary of the Interior, acting on behalf of the United States, for the segregation, irrigation, and reclamation of the public lands desert in character, described in the first-mentioned contract. This later agreement was duly made and based upon the plans, surveys and estimates submitted on behalf of the State of Oregon, pursuant to the provisions of the Carey Act, the amendments thereto, and the Oregon statute accepting the same as above referred to. It was duly recorded in the office of the clerk of Crook County on December 1, 1905. The development company and its assignee and successor in interest, the Deschutes Irrigation & Power Company, proceeded with the construction of the irrigation system mentioned and the reclamation of the land in accordance with the terms and provisions of the contract and with the plans, surveys and estimates theretofore made. As a result, a large part of the land, including the irrigable portions of the tracts in possession of the defendant, hereinafter described, was reclaimed by water available for that purpose, furnished on and prior to February 26,1906.</p> <p>Rule 5 adopted by the company and approved by the state land board October 31, 1905, provided that:</p> <p>“Persons in arrears for thirty days shall not be entitled to the use of water until such arrears are paid.”</p> <p>Among the tracts of land reclaimed is the following, located in Crook County, Oregon:</p> <p>“The southeast % of the northwest % of section 19, township 15 south, range 13 east of Willamette Meridian, containing forty acres; and the southwest % of the northwest % (being lot No. 2), of section 19, township 15 south, range 13 east of the Willamette Meridian, containing 38.83 acres.”</p> <p>Of this land, according to the plans, surveys and estimates, 15 acres in each tract are irrigable under the irrigation system, and the annual charge and lien for maintenance is the sum of $15 for each tract. About February 26, 1906, the defendant applied to purchase the first described tract, and entered into a contract with the Deschutes Irrigation & Power Company, dated on that day, whereby he agreed to pay the lien for the reclamation of the lands thereto apportioned by the state land board. He took the tract subject to the annual maintenance charge of $1 per irrigable acre- as provided in the contract between the State of Oregon and the Pilot Butte Development Company, and according to the plans, surveys, and estimates therefor, and subject to the rules and regulations aforesaid. On May 28,1906, the defendant entered into another contract with the Deschutes Irrigation & Power Company for the right to acquire the second of the above-described tracts and also agreed to take it subject to the same terms and conditions. Defendant had due notice of rule 5 of the rules and regulations, the same being printed upon the bach of each of the contracts. In November, 1910, plaintiff purchased all the rights, franchises, liens, contracts and' all Other assets then owned by the Deschutes Irrigation & Power Company, including the right to collect the annual maintenance charges on the tracts of land in possession of the defendant, and planitiff and its predecessors in interest have duly performed all the things mentioned in the contract with the state land board and the agreements with defendant to be performed by them. .</p> <p>The plaintiff alleges that about September 1, 1912, it closed and fastened the gates or laterals shutting off water from the defendant’s land, pursuant to rule 5, the defendant being in arrears in the payment of his maintenance charges for more than 30 days; that he wrongfully broke down and opened the gates, took the water from the ditch, and threatens to continue in such trespass to the plaintiff’s damage. Defendant admits that he broke the gates and took out the water for irrigating his lands. He pleads that he does not mean to interfere with the same unless plaintiff shall fail to furnish water for his lands according to its contracts not exceeding sufficient water for 26 acres on one of the tracts and 25 on the other. Defendant also admits the execution of the several contracts mentioned, but denies that the same were based upon or were to be performed according to the “plans, surveys and estimates” referred to in the complaint. He denies that the plaintiff has performed the conditions of the agreements, and for an affirmative defense pleads his contracts with the plaintiff’s predecessor, copies of which are attached to the complaint. That part which is deemed pertinent to this inquiry recites as follows:</p> <p>“Now, therefore, I * * hereby apply to said party of the second part for all of the southeast % of the northwest *4 of section 19, township 15 south, range 13 east of Willamette Meridian, Crook County, State of Oregon, containing 40 acres, and for release of a lien, thereon owned and held by said second party for the reclamation thereof, which said lien was created by the terms of said contract, between said state land board and said Pilot Butte Development Company, and by it assigned to the second party herein. In consideration whereof, and of the delivery of possession of said land to me or my qualified assigns prior to date of reclamation of the amounts herein agreed to be paid, I promise and agree, for myself, my heirs, executors, administrators and assigns, to pay the sum of $244.00, it being the amount of the lien due said second party for reclamation as fixed by said contract with the State of Oregon. * * ”</p> <p>Here follow stipulations for four annual payments with interest as per promissory notes, for the assignment of the application and agreement and the proceedings in the event of such assignment, and for the procedure in case of default in payments. Then the following appears:</p> <p>“The second party agrees, in consideration of the terms and agreements of the first party and upon the payment of the reclamation lien above mentioned, in accordance with the terms and conditions herein expressed, to release said reclamation lien on the land above described and authorize the state land board of the State of Oregon to deed to the first party the above-described tract free from the reclamation lien thereon held by the second party; and subject to the annual maintenance charge of one dollar per acre, mentioned in the contract between the State of Oregon and the second party herein.” Defendant further alleges that, at the time he entered into the contracts, he relied upon rules Nos. 1, 2 and 3, printed upon the backs thereof, the substance of which is as follows:</p> <p>(1) “The Deschutes Irrigation & Power Company, its successors or assigns, * * shall be required to furnish a supply of water for each tract in the lists for patent, sufficient to thoroughly irrigate and reclaim it and to prepare it to raise ordinary agricultural crops. ”</p> <p>Rule 2 fixes the time of the irrigation season and provides that:</p> <p>“The company shall deliver to each settler * * owning lands reclaimed by contract with the State of Oregon * * an amount of water measured at the point of delivery to his land, which will cover each acre of irrigable land to a depth of 1.8 feet”—</p> <p>with a provision that the supply may be changed according to needs with the approval of the state land board.</p> <p>Rule 3 states:</p> <p>“Water shall be delivered to the lands of each settler at the highest practicable point or points which can be reached by a gravity flow, which point or points are best adapted to reclaim all the irrigable lands owned by such settler. Said point or points of delivery shall be ascertained and determined by the chief engineer of the company, and in case of dispute between the chief engineer of the company and the settler as to the point of delivery the question shall be submitted to the state engineer whose decision shall be final.”</p> <p>It is alleged by the defendant that there is in excess of 26 acres of irrigable land upon the tract described in his first contract and more than 25 acres upon that embraced in his second agreement. It appears that during the year 1907 the Deschutes Irrigation & Power Company received $26 as an annual maintenance charge on one of defendant’s contracts and $25 on the other at $1 per acre, since which time, except when the dispute arose, the defendant has paid $15 for each tract,* that afterward the company credited the amount in excess of $1 per acre for 15 acres in each tract for the year 1907. The evidence shows that one of the gates was repaired three times and then allowed to remain open during the irrigation season of 1912. Upon this point the defendant testified to the effect that, if the company refused to recognize his right to water for 25 acres and 26 acres on the respective tracts and closed his gates, he would probably break them open again. He stated: “You shnt them off again, and I will break them open again and take it.” He also testified that the reason for breaking the gates was that he was entitled to water for the above-mentioned acres on the respective tracts; that he was trying to bring the matter to an issue and challenged suit.</p>

<p>Bills and Notes — Failure of Consideration — Statute.</p> <p>1. In an action by a bank on a note, of which if was the original payee, given for the purchase price of stock, where the sale had been effected by agents acting for the bank and for the corporation whose stock was sold, they having represented that the corporation was a rieh concern and backed by the bank, and that it had a large amount of goods in warehouse when it had, in fact, no property, money, or credit, a good defense was presented to the bank’s suit; it not being a holder in due course, under Section 5885, L. O. L., defining who is a holder in due course, and absence or failure of consideration being a matter of defense against any person not a holder in due course by direct provision of Section 5861.</p> <p>Bills 'and Notes — Want of Consideration — Burden of Proof.</p> <p>2. By the negotiable instruments law the burden of showing want of consideration rests upon the defendant sued on a note, and, if he offers any evidence on the head, the plaintiff must show consideration by a fair preponderance of the evidence.</p> <p>Principal and Agent — Ratification—Acceptance of Benefits — Estoppel to Deny Authority.</p> <p>3. In an action on a note for the purchase price of stock, where the plaintiff received sueh note, and thereby accepted the benefits of the transaction from its agents, who had secured it from the defendant, it became chargeable with the fraud of such agents in procuring the note.</p> <p>Evidence — Action by Bank — Letter of Cashier.</p> <p>4. In a suit by a bank on a note, a letter written by its cashier on its stationery and signed by him in his official capacity was admissible in evidence, on the issue of fraud set up by the defense, as being the letter of the bank.</p> <p>Trial — Conduct of Judge — Remarks in Ruling.</p> <p>5. In an action by a bank on a note given for stock, the defense was the false representations of the agents of the bank and the corporation whose stock was sold as to the resources of the company, and, in ruling on the admissibility of a letter of the cashier of the bank, the eourt stated: “It will be a question for the jury to determine whether these parties were acting in conspiracy to work out this fraud.” Held, that the reference to “this fraud” was not objectionable as a reference to fraud by plaintiff; there being no question but what there was fraud on the part of the corporation.</p>

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Chief Justice Moore. These two suits instituted by J. C. Windsor against George C. Mourer and others, to vacate and set aside the cancellation of judgments, were consolidated and tried, and, the relief prayed for in the complaint having been denied, the plaintiff appeals. Department 1.

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 1. Statement by Mr. Chibe Justice Moore.</p> <p>This is a suit by Joseph Weber and Frank I. Weber against A. B. Richardson, the Richardson Investment Company, a corporation, and John P. Sharkey, for an accounting and to impress a lien on real property. Prom a decree for the plaintiffs as prayed for, the defendants Bichardson and the corporation appeal.</p>

<p>Account — Evidence—Cost of Building.</p> <p>1. In an action for an accounting under an agreement to divide the cost of a building erected on premises leased by the parties to the contract, opinion evidence introduced with consent of the parties — • defendant’s evidence being discarded because he had fraudulently raised receipts for money paid to inflate the cost of the building —considered, and the cost of the building determined.</p> <p>Appeal and Error — Review—Action in Lower Court.</p> <p>2. Where, in an action for an accounting under an agreement to divide the cost of erecting a building, an architect was by consent appointed to determine the actual cost of erection, and defendant’s motion for an order to allow the introduction of evidence, if appraisement was unsatisfactory, was denied, the court on appeal cannot review the denial of the motion; defendant not appearing at the hearing at which the witness gave his testimony, and no offer being made to introduce other evidence, though the court had no power to make the testimony of the architect final.</p>

Prom Baker: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice McBride. • This is a suit by Eliza Chord against P. J. Huber to quiet title to certain real estate in the City of Baker. The complaint is in the usual form, and alleged that plaintiff was in possession of the premises at the commencement of this suit. Defendant answered denying plaintiff’s title and possession, and alleging title in fee in himself.

<p>Injunction — Grounds—Prevention of Irreparable Loss — Complaint.</p> <p>1. In an action to restrain the removal of personalty from premises leased to defendants, where the complaint did not allege that the property was attached to the realty, or that the proposed manner of removal would injure either the realty or the personalty, an allegation of irreparable injury, without a reeital of any facts indicating a probability thereof, being a mere conclusion of law, and the insolvency of the defendants not being sufficient of itself to show that the removal would cause irreparable injury, the complaint failed to give jurisdiction in equity.</p> <p>Injunction. — Grounds—Prevention of Irreparable Loss — Sufficiency of Evidence.</p> <p>2. In an action to restrain the removal of personalty from leased property, evidence held insufficient to sustain the complaint alleging the necessity of an injunction to prevent irreparable loss.</p>

<p>From Baker: Gustav Anderson, Judge.</p> <p>In Banc. Statement by Mr. Justice Bean.</p> <p>This is a suit by D. E. Bichen and Curtis Haley against Titus E. Davis, to quiet title to an unpatented mining claim covering the southeast % of the southeast % of the southwest % of section 29, township 9 south, range 37 east, Willamette Meridian, containing approximately 10 acres of placer ground near Sumpter, Oregon. The Circuit Court rendered a decree in favor of the plaintiffs, and the defendant appeals.</p>

From Umatilla: Lawrence T. Harris, Judge. In Banc. Statement by Mr. Justice Benson. This is an action by the Northwest Steel Company, a private corporation, against School District No. 16 of Umatilla County, Oregon, a municipal corporation.

<p>From Umatilla: Gilbert W. Phelps, Judge.</p> <p>In Banc. Statement by Mr. Justice Eaiun.</p> <p>This is a criminal prosecution, under Section 1964, L. O. L., for obtaining money under false pretenses, the proof of which is controlled by Section 1541, L. O. L. The defendant Laura Y. Alexander is a mixed-blood Indian woman, and her husband, H. H. Alexander, a white man. The charge in the indictment is that by certain, fraudulent pretenses Laura V. Alexander represented that she was the owner of 160 acres of land, which is described in the indictment, said land being an allotment by the United States Department of the Interior to Joe Depot, from whom Laura V. Alexander claims as heir; that she was authorized and empowered to make a contract in regard to the leasing of said land without the consent of or interference from the superintendent in charge of the Umatilla Indian reservation or the Department of the Interior of the United States. This much of the statement carries with it the inference that the prosecuting witness knew that she only had a right to contract in regard to the land with the consent or control of the superin.tendent of the reservation or from the Department of the Interior. It is further alleged that the prosecuting witness paid to the defendant Laura Y. Alexander $1,150 for the said lease. There is first a question raised as to the sufficiency of the indictment, but we will pass that over and go directly to the question of the right of the prosecuting witness to initiate this action against the defendant. Submitted on briefs without arguments under the proviso of Supreme Court Buie 18: 56 Or. 622 (117 Pac. xi).</p>

<p>Negligence — Swimming-pool — Injuries to Diver—Liability of Proprietor.</p> <p>1. Although the proprietor pf a swimming-pool is not an insurer of the safety of patrons, he is required to use reasonable care in furnishing reasonably safe conditions, and, if they are not reasonably safe, because of depth of water too slight to permit diving with safety, on failure to give notice of such condition and to warn patrons, the proprietor is liable for any resulting injury.</p> <p>[As to duty to patrons of proprietor of bathing resort or beach, see note in Ann. Cas. 1913D, 1217.]</p> <p>Negligence—Swimming-pool—Injuries to Diver—Contributory Negligence.</p> <p>2. In an action by the administrator of one killed by diving and striking the bottom of a swimming-pool on account of the insufficient depth of water; where the deceased was a good diver, had been in tin plunge previously when the water was at its usual and safe depth, where he was told upon inquiry that the water was only half ‘the usual depth, and was shallow, but was coming in fast, where he waited for the tank to fill up, where he saw his friends standing in the pool, and so was able to judge the depth- of the water for himself, and where it was apparent that he realized the danger of diving, he was guilty of contributory negligence.</p>

From Wallowa: John W. Knowles, Judge. In Banc. Statement by Mr. Justice Harris. David Diggins died on September 2, 1912, leaving a will which was contested by his son, Thomas L. Dig-gins.

From Wallowa: John W. Knowles, Judge. In Banc. Statement by Me. Justice Bean. Peter Heuel, tbe plaintiff, obtained a writ of review to re-examine tbe action of tbe County Court of Wallowa County in the matter of vacating a county highway. Tbe Circuit Court dismissed tbe writ, thereby affirming tbe proceedings of tbe County Court, and plaintiff appeals.

From Gilliam: David B. Parker, Judge. In Banc. Statement by Mr. Justice Benson. Tbis is an action by New Madden and E. L. Madden against tbe Condon National Bank, a corporation, for damages for tbe conversion of collateral securities. In 1909, according to tbe complaint, tbe plaintiffs were indebted to tbe defendant bank in tbe sum of $4,000, evidenced by two promissory notes.

From Lane: Robert G. Morrow, Judge. Department 2. Statement by Mr. Justice Eakin. This is an action of replevin by W. A. Bohart against James C. Parker. On April 8, 1913, one Francis recovered a judgment against Thienes in the sum of $383.75.

From Tillamook: Webster Holmes, Judge. Department 2. Statement by Mr. Justice Harris: This is a suit by John Leland Henderson against the Tillamook Hotel Company, P. J. Worrall, Anna A. Worrall and Charles Kunze. The real purpose of this suit, which was commenced January 16, 1914, is to oust P. J. Worrall from the management of an hotel owned by the Tillamook Hotel Company, a corporation, which was organized for the purpose of building the hotel.

<p>Appeal and Error — Record—Authentication—Sufficiency.</p> <p>1. A transcript purporting to be a rehearsal of the proceedings at trial, certified only by the official reporter and not even in the form for a bill of exceptions, cannot be considered on appeal.</p>

From Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Eakin. The defendant, George F. Moyer, was indicted for the crime of setting fire to and burning a stable. The portion of the indictment important here is as follows: “The said Geo.

From Baker: Gustav Anderson, Judge. In Banc. Statement by Mr. Chief Justice Moore. Tbis is a suit by tbe Town of Haines, a municipal corporation, against tbe Eastern Oregon Light & Power Company, a corporation, to enjoin tbe use of electric meters.

From Grant: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Burnett. This is a suit instituted on February 4, 1914, in ■which the Grant County Bank, a corporation, a judgment creditor of one H. B. Hayes, would set aside as fraudulent and void a deed made by the judgment debtor to his then wife, Della Hayes, September 14, 1908, and subject the land therein described to the payment of the plaintiff’s judgment obtained May 19, 1913.

From Benton: James W. Hamilton, Judge. Statement by Mr. Chief Justice Moore. This is an appeal by W. Beamish from a judgment of the Circuit Court of the State of Oregon for Benton County dismissing a writ of review.

From Coos: John S. Coke, Judge. Statement by Mr. Chief Justice Moore. • This is an action by George Watkins against the Record Photographing Abstract Company, a corporation, to recover money.

<p>New Trial — Grounds—Waiver of Law.</p> <p>1. Under Section 548, L. O. L., providing that for the purpose of being reviewed an order setting aside a judgment and granting a new trial shall be deemed a judgment or decree, the Circuit Court can enter sueh order only when in the trial of the cause an error was committed so prejudicial that the judgment rendered would be reversed on appeal.</p> <p>Negligence — Actions—Questions for Jury.</p> <p>2. Negligence is a question of fact to be determined by the jury.</p> <p>Municipal Corporations — Use of Streets — Actions for Injuries — Instructions.</p> <p>3. In an action for injuries to a pedestrian on a city street, who was struck by a wagon, a requested instruction that there was no rule of law which makes it negligence for a person to stand in the street for a moment when he has taken proper precautions to look for approaching vehicles was misleading, as' implying that the plaintiff would not, as a matter of law, be negligent under such circumstances, whereas it was for the jury to say whether or not such acts were negligent.</p> <p>Trial — Instructions—Applicability to Issues — Negligence.</p> <p>4. Where a complaint for injuries to a pedestrian on a city street made no charge that defendant’s wagon was being driven at improper speed, a requested charge, predicated in part on a finding of excessive speed, was properly refused.</p> <p>Trial — Use of Streets — Actions for Injuries — Instructions—Assumption of Facts.</p> <p>5. A requested instruction that a person who sees no wagon approaching for a sufficient distance to warrant a cautious person in believing it is safe to attempt a crossing has a right to proceed, relying upon the assumption that a warning would be given of an approaching vehicle, is erroneous as assuming that it was the duty of a driver to give a warning, which was a question of faet for the Niy.</p> <p>Trial — Use of Streets — Requested Instructions — Modification.</p> <p>6. Where a complaint for injuries to a pedestrian on a city street did not charge, the driver of the wagon with losing control thereof, it was proper for the trial court to modify a requested instruction that it was the duty of travelers by vehicles to keep the same under control so as not to injure pedestrians in the proper exercise of their rights, so as to charge that it was the duty of each to exercise reasonable care under the circumstances.</p> <p>ON MOTION TO RETAX COSTS.</p> <p>Costs — Costs on Appeal — Expense of Transcript.</p> <p>7. One who successfully appeals from a judgment in an action at law may not have the expense of transcribing the testimony taxed as a disbursement in the appellate court.</p> <p>Costs — Costs on Appeal — Expense'of Transcript.</p> <p>8. The rule that expenses incurred by an appellant in a law case in procuring a transcript must be taxed below as costs, and cannot be so taxed on appeal, is not changed because under Article VII, Section 3 of the Constitution, as amended in 1910, “either party may have the whole testimony attached to the bill- of exceptions,” thus transmitting the transcript to the appellate court on appeal.</p>

<p>Master and. Servant—“Railroad” Employees.</p> <p>1. The word “railroad” in Seetion 6946, L. O. L., making every corporation operating a railroad liable for injuries sustained by employees by the default of coemployees, includes a logging railroad used exclusively by the owner.</p> <p>[As to kind of railroad intended by rule abrogating fellow-servant doctrine as to railroad employees, see note in Ann. Cas. 1912D, 648.]</p> <p>Master and Servant—Injury to Servant—Evidence.</p> <p>2. Where a section-hand on a logging railroad was ordered to assist in loading a train, and when the loading was completed, the foreman directed the men to get aboard, the section-hand while on the train, was entitled to protection as such.</p> <p>Master and Servant—Injury to Servant—Contributory Negligence.</p> <p>3. Whether a section-hand on a logging railroad was guilty of' negligence in riding on a logging train, by orders of the foreman, held, for the jury.</p> <p>Master and Servant—Injury to Servant—Contributory Negligence.</p> <p>4. Whether a section-hand was negligent in riding with his feet hanging over the edge of a flat car in a logging train, in violation of orders held, for the jury.</p> <p>Master and Servant—Injury to Employee—Contributory Negligence.</p> <p>5. Whether an employee on a logging train, running away on a down grade, was guilty of contributory negligence in jumping from the train, held, under the evidence, for the jury.</p> <p>Master and Servant—Injury to Servant—Care of Employer.</p> <p>6. An employer, maintaining a- logging railroad and carrying employees to load logging trains, must use reasonable precautions to protect them from injury.</p> <p>Master and Servant—Injury to Servant—Care Required of Employer.</p> <p>7. Whether an employer maintaining a logging railroad and operating thereon logging trains was guilty of negligence in failing to maintain the track in a reasonably safe condition and to furnish a locomotive properly equipped, held, for the jury.</p>

From Multnomah: Calvin U. Gantenbbin, Judge. . In Banc. Statement by Mr. Justice McBride.

From Wallowa: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action of ejectment in the usual Code form, wherein A. M. Wagner is plaintiff and Wallowa County, Oregon, is defendant, to recover the possession of certain realty in Wallowa County. The defendant denies all the allegations of the complaint, except its own corporate entity. It pleads that it alone is the owner in fee simple and in possession .of the property.

Prom Coos:,John S. Coke, Judge. Department 2. Statement by Mr. Chief Justice Moore. This was an application to tbe County Court of Coos County, Oregon, for tbe removal of guardians and to require them to account. Tbe facts are that on ‘July 14, 1913, tbe petitioner, Charles Sneddon, then about 72 years old, was adjudged by that court to be of unsound mind, and thereupon he was incarcerated in the state hospital for the insane.

Original proceedings in Supreme Court. In Banc. Statement by Mr. Justice Benson. This is an original application for quo warranto by the State of Oregon, on the relation of F. S. Ivanhoe against John S. Hodgin. The legislature, at its regular session in 1913, passed an act providing for a district attorney for each county in the state, who should hold office for a term of four •years, and until his successor is elected and qualified.

From Multnomah: William N. Gatens, Judge. In Banc. Statement by Mr. Justice Eakin. This is an action by Anna Graf against J. N. Pearcy and C. H. Jacobs. From a judgment in favor of plaintiff, the defendant, J. N. Pearcy, appeals. Plaintiff and respondent files motion to dismiss the appeal.

<p>Divorce—Support of Children.—Enforcement—Foreign Judgment— Finality.</p> <p>1. Under Section 138, Civil Code of California, providing that the court may, pending an action for divorce, or at the final hearing, or at any time thereafter during the minority of any children, make such orders for their custody and maintenance as may be necessary or proper, and may at any time modify or vacate the same, and Section 139, providing that where a divorce is granted for an offense of the husband the court may compel him to make suitable allowance for the wife’s support, and may modify its orders, a decree of the California Superior Court that defendant pay to his divorced wife $20 per month for the support of their child during its minority and until otherwise ordered,'was not a final decree, since it was subject to vacation at any time, so that the Circuit Court in Oregon had no jurisdiction to render a decree enforcing it.</p> <p>[As to divorce granted in another state, see notes in 7 Am. Dec. 206; 26 Am. Rep. 31.]</p> <p>Divorce—Alimony—Foreign Decree—Enforcement.</p> <p>2. In a wife’s aetion for divorce brought in California, a finding or conclusion that she was entitled to $10 per month to be paid by defendant, without any decree following such conclusion, was not a final decree upon which execution might issue, nor one on which suit could be brought in another state.</p>

From Marion: Percy R. Kelly, Judge. TMs is an action by Lillian Walling, whose name is now Lillian Walling Williams, against A. M. La Follette and Mrs. A. M. La Follette. From a judgment in favor of plaintiff, defendants appeal. Respondent files motion to dismiss the appeal. Department 2.

Original proceeding in Supreme Court. This is an original proceeding in this court by Hattie Kubik against George N. Davis, as judge of the Circuit Court for Multnomah County, asking for a' writ of mandamus against the defendant. This is a hearing upon a demurrer to the writ. In Banc.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Bean.

From Multnomah: Thomas J. Cleeton, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action by Fred Wolsiffer against Thos. A. Bechill and W. A. Bechill, copartners doing business as Bechill Bros., and J. P. O’Donnell.

From Wallowa: John W. Knowles, Judge. In Banc. Statement by Mr. Chiee Justice Moore. This is a suit by Mary E. Dale against Edgar Marvin, Sheriff, and others to enjoin a threatened clouding of the title to real property.

From Wallowa: J ora W. Knowles, Judge. In Banc. Statement by Mr. Justice Burnett. This is a suit by Charles E. Evans against Edgar Marvin, as sheriff, and Stephenson & Hitt.

From Baker: Gustav Anderson, Judge. In Banc. Statement by Mr. Justice Burnett. This is a suit by School District No. 5 of Baker County, Oregon, against J. H. Neder.

From Multnomah: George N. Davis, Judge. In Banc. Statement by Mr. Justice Benson. This is an action by J. H. Housman against J. H. Peterson, for damages for personal injuries resulting from assault and battery.

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Burnett. This is a suit by William Black and wife against William A. Irvin to rescind a sale upon tbe ground of fraud.

<p>Insurance — Fire Insurance — Subrogation of Insurer.</p> <p>1. Where a mortgagee insures the hypothecated property at Ms own expense, the insurer, paying a loss by fire to such mortgagee to the amount of the debt, is subrogated to the mortgagee’s right in such debt, since the insurance contracted and paid for by the mortgagee in elfeet maltes the insurance company a surety to the holder of the mortgage for the payment of the debt.</p> <p>Insurance — Fire Insurance — Subrogation of Insurer.</p> <p>2. Where insured property is burned by the tortious aet of one not a party to the contract, the insurer paying the loss, is subrogated pro tanto to the chose in action the payee has against the tortfeasor by reason of his insurable interest.</p> <p>Insurance — Fire Insurance — Subrogation of Insurer.</p> <p>3. Realty was insured against fire, the loss being payable to a mortgagee as its interest might appear; otherwise to the insured. Within the term of the policy the property was destroyed by fire, and upon the mortgagee and owner suing the insurance company the mortgagee recovered judgment for the amount of its secured debt, while the owner failed to recover because he had contracted to sell, violating a policy restriction. The insurance company paid the mortgagee’s judgment, and demanded that the mortgagee assign to it the owner’s note and mortgage, which was refused. Thereupon the company sued the mortgagee and the owner, claiming subrogation to the rights of the mortgagee against the owner, and seeking to foreclose the security and recover the amount of the debt. Held, that the insurance company could not recover, since by the policy it agreed with the owner to pay a certain designated person, thei mortgagee, in case of a loss, but did not agree to pay the owner’s debt to the mortgagee as such.</p> <p>[As to insurer’s right to subrogation, see note in 44 Am. St. Rep. 732.]</p>

From Yamhill: Webster Holmes, Judge. In Banc. Statement Per Curiam. This is an action by Vinnie A. Vincent and. Mary D. Vincent against the First Nat. Bank of Roseburg. From a judgment in favor of plaintiffs, defendant appeals. Respondent now moves to dismiss the appeal herein. The judgment in this case was entered May 14, 1914. The notice of appeal was served and filed on the 22d day of June.

From Multnomah: Thomas J. Cleeton, Judge. Department 2. Statement hy Mr. Justice Bean. This is an action to recover damages for the wrongful death of Stanko Yovovich, plaintiff’s son, who received an injury while employed by the Falls City Lumber Company. The cause was tried to the court and jury, and a verdict rendered in favor of plaintiff for $1,100. From a judgment entered thereon, the defendant appeals.

From Multnomah.: William N. G-atens, Judge. Department 1. Statement by Mr. Justice McBride. This is an action brought by F. A. Cassity against Ben H. Wilson, Ada S. Wilson and F. B. Stratton, alleging that defendants entered into a conspiracy to mislead and defraud him concerning certain patents and patent rights controlled by them, which they represented had been transferred to the Twin Manufacturing Company, a corporation.

<p>From Union: John W. Knowles, Judge.</p> <p>In Banc. Statement by Ms. Justice Burnett.</p> <p>This is a suit by Jennie Murray, B. F, "Webb, Francis J. Crawford, John C. McEwen, Charles Floberg, Oscar Thompson, Louis Strom, F. B. Tufverson and the La Grande Real Estate Association, a private corporation, against the City of La Grande, in Union County, Oregon, M. K. Hall, Mayor of said city, Lee "Wamick, Recorder of said city, J. H. McLachlen, Chief of Police of said city, and the Common Council of said city, to permanently enjoin the collection of an assessment to cover the expense of making certain street improvements in the City of La Grande. The charter of that municipality treating of the manner in which such exactions shall be made and collected requires a preliminary report from three commissioners, to be appointed from the personnel of the city council, concerning the property involved and the benefits to be derived from the proposed improvement. This provision then appears in that instrument:</p> <p>“After receiving said report the council shall, before the levy of any special assessment for any improvement give personal notice for ten days, or in the absence of any property owner, agent or person in charge of said property, by publication in a daily newspaper in said city for a period of ten days to either the owner, agent or person in charge of said property against which said assessment is to be made, of its intention to levy said special assessments, naming the purposes for which special assessments are to he levied, a description of the improvements so proposed, the boundaries of the district to be affected or benefited by such improvement, the estimated cost of such improvements and designate a time when the council will meet and consider the proposed levy and the granting to any person feeling aggrieved, a hearing, before said council. After a compliance with this subdivision, the council shall be deemed to have acquired jurisdiction to order the making of such improvements. ’ ’</p> <p>After prescribing certain details abput the manner of making the assessment, this clause follows</p> <p>“If any assessment is set aside by order of any court, the council may cause a new one to be made in like manner for the same purpose, for the collection of the amount so assessed.”</p> <p>After narrating the filing of the commissioners’ report, it is charged in the complaint, and admitted by the defendants:</p> <p>‘ ‘.That the report of said commissioners did not define or describe the boundaries of said assessment district, nor did the common council of the City of La Grande define or describe, by resolution or otherwise, the boundaries of the district to be benefited specially, or at all, by such improvements, at that time or at any other time at all; that upon receiving the report of said commission the council of said City .of La Grande attempted to give personal notice for ten days to the owner or person in charge of the several lots and tracts of land claimed to be specially benefited or assessed for such improvement, and to absent owners by publication for ten days in the ‘Evening Observer,’ a daily newspaper published in said city; but that such notices so given or pretended to be given did not name the purpose for which said proposed special assessment was to be made, or a description of the improvements proposed, or the boundaries of the district to be affected or benefited by such improvements, or the estimated cost of such improvements. ”</p> <p>Based upon such a notice, the defects of which are conceded, the council proceeded to actually lay down a pavement of macadam on the street designated under a contract of date February 10, 1911. The plaintiffs charge various shortcomings of the contractor resulting, as they say, in a practically worthless pavement. The city was enjoined by the Circuit Court from collecting an assessment levied by an ordinance of October 4, 1911. By another ordinance of December 11, 1912, the municipality attempted to reassess the expense of the improvement upon the property of plaintiffs, but this in turn was enjoined by the Circuit Court. Professing to operate under the reassessment clause already quoted, the city again by an ordinance approved July 24,1913, so far as it could lawfully do, made a renewed assessment for the same improvement, all after the pavement was actually laid. The Circuit Court heard the case on the pleadings and evidence and dismissed the suit; hence this appeal by the plaintiffs.</p>

Prom Malheur: Dalton Biggs, Judge. In Banc. Statement by Me. Justice Bean.

From Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Bean.

From Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Harris.

<p>From Malheur: Dalton Biggs, Judge.</p> <p>In Banc. Statement by Mr. Justice Harris.</p> <p>This is a suit by Allen Gilkey and Angie Gilkey, substituted as plaintiffs for James M. Sweitzer and Etta Sweitzer, against Alexander Murray, Jennie Murray, ■ Adam Murray, "William Murray and Malcolm Moody to quiet title to land known as the Zack Smith ranch, described as follows:</p> <p>The southwest quarter of the southeast quarter of section 15, and the north half of the northeast quarter and the southwest quarter of the northeast quarter of .section 22 in township 19 south, range 37 east, Willamette Meridian, in Malheur County.</p> <p>Except as to the description of the land the pleadings tell the same stories that are narrated in Mascall v. Murray, and the facts are identical with the last-mentioned case, except that in the instant controversy actual possession by the Gilkeys and their predecessors is more pronounced and extends over a longer period of time. The Zack Smith ranch was attached in the same action at law, was included in the same sale on execution, and was covered by the same certificate of sale. The only difference between the two cases is found in the circumstances of the possession and use of the land after 1891. The Circuit Court decreed that Allen Gilkey and Angie Gilkey were the owners of the land, and the Murrays appealed.</p>