Volume 81 — Oregon Reports

<p>Exemptions—Construction of Statute.</p> <p>1. Since exemption statutes are remedial in character, they are given a liberal construction.</p> <p>Exemptions — Property Exempt—Construction of Statute—“Necessary”—“Occupation.”</p> <p>2. Under Section 227, L. 0. L., as amended by Laws of 1915, page 27, making the team, vehicle, harness, etc., necessary to enable any person to carry on the trade, occupation or profession by which he habitually earns his living exempt from execution, the term “necessary” signifies “reasonably necessary” or “convenient” or “suitable,” and does not mean “indispensable” or “absolutely necessary”; and standing alone, the word “occupation” means the principal business of one’s life, habitual or stated employment, vocation, calling, trade, the business in which one principally engages to secure a living, the employment by which he generally gets his living, and includes any employment in which a person is engaged to procure a living.</p> <p>Exemptions—Construction of Statute—Occupation.</p> <p>3. Under such statute, it is not essential that the property should have been used exclusively to carry on the occupation by which one habitually earns his living, because an occasional use for other purposes will not defeat his right to exemption; and such right is not lost if the owner is not actually using the property in his occupation at the very time of the levy, or if temporarily, he is not engaged in his occupation, and is preserved if he honestly intends to use the property "within a reasonable time to carry on his occupation.</p> <p>Exemptions—Horse, Vehicle, Harness, etc.—Construction of Statute.</p> <p>4. Under Section 227, L. O. L., as amended by Laws of 1915, page 27, exempting from execution a team, vehicle, harness, ete., necessary to enable anyone to carry on the occupation by which he habitually earns his living, the debtor may select and reserve a team, vehicle and harness without being obliged to show that he has no other like property, or to point out other property to the sheriff, even though he owns additional property of the same kind, and the debtor, "if owning more than two horses, may select any two.</p> <p>Exemptions—Construction of Statute—Assertion of Exemption—“At” —“As Soon As.”</p> <p>5. Under Section 227, L. O. L., as amended by Laws of 1915, page 27, exempting from execution a team, vehicle, harness, etc., necessary to enable one to carry on his occupation, if selected and reserved by the judgment debtor at the time of the levy or as soon thereafter before sale as it shall be known to him, a failure to select exempted property at the exact time of the levy, even though the debtor is present, will not alone operate as a waiver of his right, as the word "at,” when used in reference to time, does not always mean the exact moment or day, but may express nearness and proximity, and consequently may denote a reasonable time, and as the words “as soon as” likewise have a restricted and an unrestricted signification; so that the debtor, if he acts before sale, may assert his right of exemption within a reasonable time after the levy becomes known to him, whether he was present or absent at the time of the seizure.</p> <p>Exemptions—Waiver.</p> <p>6. The right of exemption from execution is a privilege which may be waived by the consent of the debtor, or by his failure to assert his rights.</p> <p>Exemptions—Eight to Exemption—Burden of Proof.</p> <p>7. A sheriff’s seizure on attachment cannot be avoided, unless the debtor alleges and proves a situation bringing the property within the exemption statute, and avers and establishes every faet essential to the exemption.</p> <p>Pleading—Defects—Eeply—Aider by Verdict.</p> <p>8. In replevin for a team, wagon and harness attached by defendant sheriff, the taking of which was justified by his answer, a reply claiming an exemption and right to a return of the property under the statute (Section 227, L. O. L., as amended by Laws of 1915, page 27), exempting from execution a team, vehicle, harness, etc., necessary to enable one to carry on the occupation by whieh he habitually earns his living, showing that the property was being used by plaintiff for the purpose of earning a living for the support of his family, and that it was the only property of the kind whieh he could use, and that it had been habitually used for that purpose, was sufficient after verdict.</p> <p>Trial—Cautionary Instruction—Discretion of Court.</p> <p>9. Eefusal of a cautionary instruction is within the discretion of the trial court.</p> <p>Trial—Requested Instructions—Given Instructions.</p> <p>10. Requested instructions, given in substance, were properly refused.</p> <p>Appeal and Error—Question of Fact—Review.</p> <p>11. The verdict of the jury on conflicting evidence forecloses any inquiry into the credibility of tbe witnesses or the weight of their testimony.</p> <p>[As to exemption of tools and implements from execution, see note in 123 Am. St. Rep. 139.]</p>

From Multnomah: George N. Davis, Judge. This is an action by G. Evert Baker, trustee, and H. L. Ganoe, trustee, against Jennie H. Stacy. From a judgment in favor of plaintiffs, defendant appeals. ¿Respondents file motion to dismiss the appeal upon the ground set forth in the opinion of the court. In Banc.

<p>Dismissal and Nonsuit—Suits in Equity—Remedies at Law.</p> <p>1. In view of Sections 1, 389, L. O. L., in Oregon a distinction is made between actions at law and suits in equity, and although courts of law and equity are presided over by the same judges, a suit in equity must be dismissed where there is a remedy at law.</p> <p>Attachment—Statute—Strict Compliance.</p> <p>2. Under Section 295, L. O. L., providing for attachment upon an unsecured contract for the direct payment of money or upon contract where defendant is a nonresident, the attachment was an ancillary provisional remedy and the statute must be strietly followed or no right is thereby acquired.</p> <p>Reformation of Instruments—Nature of Remedy.</p> <p>3. The reformation of a deed is a remedy peculiar to a court of equity.</p> <p>Attachment)—In Equitable Action.</p> <p>4. In a suit in equity, jurisdiction is not acquired by the attachment of property of a nonresident, defendant, so as to authorize the court, upon service of summons by publication, to order the condemnation and sale of the land to satisfy the judgment.</p> <p>Costs—Nature of Remedy.</p> <p>5. Under Section 561, L. O. L., costs are certain sums of money prescribed by statute as indemnity on account of attorney fees in prosecuting or defending a suit or action.</p> <p>Costs—In Equity—Discretionary.</p> <p>6. Under Section 567, L. O. L., the allowance of costs in a suit in equity is a matter resting in the sound discretion of the court.</p> <p>Appearance—Special Appearance.</p> <p>7. Under Section 542, L. 0. L., providing that a defendant appears when he answers, demurs or gives written notice of appearance, and Section 63, making a voluntary appearance equivalent to personal service, an oral question of counsel as to the allowance of costs, where his motion on special appearance to dismiss an attachment has been granted, is not a general appearance.</p> <p>[As to test of whether appearance is general or special, see note in Ann. Cas. 1914A, 1189.]</p>

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Statement by Mb. Justice Habéis. H. N. Scott having filed a disclaimer, the parties who are now waging this contest are the plaintiff, W. M. Robinson, and the defendant, Victor Land Company, a corporation. Robinson and the corporation are each asserting title adverse to the other in two lots in Portland, Oregon, and each is attempting to free such title from certain described clouds.

<p>From Union: Gustav Anderson, Judge.</p> <p>This hearing is upon a motion to recall the mandate heretofore issued in this cause. For former opinion, see 79 Or. 247 (152 Pac. 103).</p> <p>In Banc.</p>

From Baker: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Benson. This action by tbe Service & Wright Lumber Company, a corporation, against tbe Sumpter Valley Railway Company, a corporation, was begun on September 11, 1909, and after trial a judgment was duly made and entered in favor of plaintiff on November 3,1911. Thereafter an appeal was taken to this court, being perfected on April 29, 1912.

<p>From Marion: William Galloway, Judge.</p> <p>In Banc. Statement by Mb. Justice Bean.</p> <p>On October 7, 1915, the Peerless Pacific Company, plaintiff herein, filed a mechanic’s lien in the office of the county clerk of Marion County, Oregon, in the sum of $149.67, against W. H. Rogers, a contractor, and R. R. Ryan and Lizzie P. Ryan, the owners of property known as the “Ryan Markets” in the City of Salem. A suit was filed to foreclose this lien. The complaint is in the usual form.</p> <p>The answer of the defendants R. R. Ryan and Lizzie P. Ryan consists of a general denial. The cause was tried, and the Circuit Court found in favor of defendants R. R. Ryan and Lizzie P. Ryan, and that the plaintiff was not entitled to a lien, as we understand the record, for the reason that the materials which were used by the contractor Rogers in the defendants’ building were sold to bim as a retail dealer upon his individual credit, and not to be used in the building. Plaintiff appeals.</p>

-From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Bean. Plaintiff James B. Bradshaw sues to foreclose a mortgage executed on December 22, 1913, in his favor by the Provident Trust Company to secure the payment of its note for the principal sum of $10,000. The note was indorsed by the defendant G. F. Johnson, who was president and manag’er of the corporation at the time.

From Multnomah: Calvin U. G-antenbein, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is an action by Florence A. Medsker, widow of Willis C. Medsker, to recover damages from the Portland Railway, Light & Power Company, a corporation, for causing the death of said Willis C. Medsker, which is alleged to have been caused by the defendant’s negligence. From a judgment rendered on a directed verdict in favor of the defendant, the plaintiff appeals.

From Klamath: George Noland, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by W. I. Clarke, against Ward & Obenchain, a corporation, for the conversion of a carload of lumber which the plaintiff alleges to be his property. The answer is a general denial. The cause was tried by the court and a jury, and a verdict rendered in favor of defendant.

<p>Appeal and Error—Review—Findings of Fact.</p> <p>1. Upon an appeal from a cause tried to the court without a jury, the evidence will be reviewed only to ascertain if it is competent to support the findings, which, will be sustained unless the evidence is insufficient as a matter of law, to support them.</p> <p>Evidence—Presumptions—Statute.</p> <p>2. Under Section 799, subdivision 33, L. O. L., providing that a thing once proved to exist continues as long as is usual with things of that nature, evidence that defendant was in possession of a sum of money two years prior to the supplemental proceedings, which does not show how long it is usual for sueh persons or anyone to retain a sum of money, is not aided by the disputable presumption declared by the statute, nor is it sufficient to show that defendant had the money until the time of the proceeding.</p> <p>[As to presumption of continuance, see note in 50 Am. Rep. 297.]</p>

From Multnomah: William N. Gatens, Judge. In Bane. Statement by Mr. Justice Bean. This is a suit by the Northwestern Transfer Company, a corporation, against the Investment Company, a corporation, for an accounting. From a decree in favor of defendant Investment Company, plaintiff appeals.

From Clackamas: James U. Campbell, Judge. In Banc. Statement by Mr. Justice McBride. This is an appeal from a judgment for damages given in a condemnation proceeding brought by the Portland-Oregon City Railway Company, a corporation, against J. R. Penney and P. E. Penney in Clackamas County.

From Multnomah: John S. Coke, Judge. In Banc. Statement, by Mr. Justice Harris. John J. Fraser owns a five-acre tract of land in Portland. East Twenty-ninth Street extends north and south and ends in a cul-de-sac at the northeast corner of the Fraser acreage. Siskiyou Street extends east and west and terminates at the east line of the five-acre tract.

From Clatsop: James A. Eakin, Judge. In Banc. Statement by Mr. Justice Bean. This is a suit by Norris Staples to enjoin the City of Astoria from issuing and negotiating $50,000 in municipal bonds. From a decree in favor of defendants, plaintiff appeals.

<p>Appeal and Error—Filing Brief—Timeliness.</p> <p>1. Where the -Supreme Court extended the time for filing appellant’s_ brief to and including February 12th, on which date appellant filed its brief, showing service of a eopy on February 11th, the brief was filed in time.</p> <p>Pleading—Reply—Denial—Negative Pregnant.</p> <p>2. In action for death from negligent operation of defendant’s auto truck, a reply consisting of conjunctive denials of conjunctive allegations of contributory negligence was insufficient as a denial thereof.</p> <p>Pleading—Denial—Negative Pregnant.</p> <p>3. Material facts alleged conjunctively must be denied disjunctively.</p> <p>Pleading—Denials^-Sufficiency.</p> <p>4. Denial that plaintiff’s decedent carelessly or negligently stepped in front of defendant’s truck, or failed to look out for his safety, is not a denial of doing such acts, but only of the manner of doing, especially where by demurrer, or by motion for judgment on the pleading, plaintiff’s attention was directed to the deficiency of the allegation, which he refused to cure.</p> <p>Appeal and Error—Scope of Review—"Error Committed During the Trial.”</p> <p>5. Plaintiff’s denial that her decedent carelessly stepped in front of a truck, or negligently failed to look out for his own safety, presenting a deficiency of pleading, is not an “error committed during tile trial,” within the provisions of Article VII, Section 3, of the Constitution, requiring affirmance in spite of such errors.</p> <p>Appeal and Error—Scope of Review—Constitutional Provisions.</p> <p>6. Article VII, Section 3, of the Constitution, requiring affirmance, notwithstanding errors committed during the trial, if the judgment was such as should have been rendered, is not intended to authorize courts to disregard statutes requiring sufficient pleadings or other preliminaries to trial.</p>

From Jackson: Frank M. Calkins, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by W. E. Phipps and others against the City of Medford to remove a cloud from the title to the real property of the plaintiffs. It is said to consist of an assessment attempted to be levied by the municipal defendant upon the holdings of the plaintiffs within its boundaries to pay for a sewer which had been laid in that city.

<p>From Multnomah: William Galloway, Judge.</p> <p>In Banc. Statement by Mr. Justice McBride.</p> <p>This is an action by Emma Cash against E. B. Garrison and others, to recover damages alleged to have been sustained by plaintiff by reason of certain alleged wrongful and fraudulent acts of defendants. The complaint is too lengthy to be inserted here, but the substance of plaintiff’s alleged cause of action may be briefly summarized as follows: At the times mentioned in tbe complaint defendants Joseph Mannix, E. B. Garrison and Bert Bobison were doing business under the names of Portland Bottling Works, Shasta Water Company and Pioneer Soda Company. Defendants Bobison and Lidell were doing business as partners under the name of Coca-Cola Bottling Works. On and prior to March 15,1911, William H. Carter, Henry Maillard and Vance Gratton were partners engaged in the manufacture of soda water, Shasta water and other like substances, under the firm name of CarterMaillard, and were conducting a profitable business and owned and controlled valuable assets consisting of machinery and supplies of the value of $10,000. On March 15, 1911, plaintiff, with the consent of Gratton and Carter, purchased the one-third • interest of Maillard, paying him therefor the sum of $3,600, and became a partner in the business with Carter and Gratton. On October, 1911, defendants Garrison, Mannix and Bobison conspired together for the purpose of cheating and defrauding plaintiff to get control of the business, property and assets of Carter-Maillard' and Shasta Water Company, and to that end entered into negotiations with Carter, Gratton and plaintiff to purchase an interest in said property. Mannix with the knowledge and consent of Garrison and Bobison, falsely represented that he was the owner of the property and assets of the Pioneer Soda Works, which he falsely represented had property and assets worth approximately $10,000, and in pursuance of the fraudulent scheme agreed to sell the same to the CarterMaillard company and to assume and pay all the debts of the Carter-Maillard company, provided they would sell to bim an undivided one-fourth interest in said partnership.</p> <p>There were further allegations to the effect that Mannix was not the owner of the Pioneer Soda Works' and that Garrison and Robison had guilty knowledge of all his false representations and that the trade was closed upon the terms above mentioned. It was stipulated that the assets of the Pioneer Soda Works would be consolidated with the assets of the Shasta Water Company and Carter-Maillard, and that Man-nix, acting in conjunction with Garrison and Robison, caused all the propérty of the Pioneer Soda Works to be brought over to the partnership of Carter-Mail-lard, and the business of the several companies was consolidated, which partnership did a large and profitable business and held valuable rights, franchises and licenses in the State of Oregon. In November, 1911, the defendants Robison, Mannix and Garrison, for the purpose of getting possession of the business of the consolidated companies and defrauding plaintiff, caused to be organized a corporation, known as the Portland Bottling Works, and, without the knowledge or consent of plaintiff and against her will, attempted to turn over, and did turn over, to said corporation all the property and assets of the consolidated companies. To abbreviate several pages of the complaint, it appears therefrom that Garrison, Mannix and Robison have broken their agreement to pay the debts of Carter-Maillard and the Shasta Water Company, have misapplied its receipts and disposed of its property, and so fraudulently managed its business that it has fallen from a highly profitable one to a worthless bankrupt concern, whereby plaintiff has been swindled out of the legitimate fruits of her investment. The matter in the complaint being put at issue, there was a jury trial and a verdict for plaintiff for the sum of $1,250, and, from a judgment upon such verdict, defendants appeal.</p> <p>Submitted on briefs under the proviso of Supreme Court Eule 18: 56 Or. 622 (117 Pac. xi).</p>

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Justice Bean. Tbis is a suit in equity by John S. Jeffreys against I. T. Weekly and Q. Y. Weekly for tbe rescission of an executory contract for tbe purchase by plaintiff of a ranch in Coos County, Oregon. ' The Circuit Court found in favor of the defendants, and rendered a decree accordingly. Plaintiff appeals. The purchase price was $10,500.

From Marion: William Galloway, Judge. In Banc. Statement by Mr. Chief Justice Moore. This suit was commenced April 3,1915, by Sigmund H. Herschback against Magdalena Herschback for a divorce on the ground of desertion, alleged to have occurred July 13, 1913, the complaint being in the usual form.

Original proceeding in Supreme Court. In Banc. Statement by Mr. Justice Benson. This is an original proceeding in mandamus by the Portland Gas & Coke Compan/ against James U. Campbell. - The cause was presented upon demurrer to an alternative writ of mandamus issued out of the court upon the following.facts. The plaintiff herein was defendant in an action for damages in the lower court wherein it obtained a verdict and judgment in its favor.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Bean. This is an action by George M. Armstrong, administrator of the estate of George Armstrong, deceased, against Julius Pincus, to recover a balance due for land sold to the latter by the plaintiff under a written contract. The contract of sale was executed in writing on December 30, 1913.

<p>Attorney and Client—Attorney’s Lien—Notice—Statute.</p> <p>1. The right to an attorney’s lien depends upon notice of a lien upon the judgment being served upon the judgment debtor and filed, under Section 1088, L. O. L.</p> <p>Attorney and Client—Assertion of Lien—Order of Court.</p> <p>2. Where defendant judgment creditor’s attorney made a motion, supported by affidavits, asserting his claim of attorney’s lien and that the settlement of the judgment by his client, the judgment creditor, was in fraud of his rights, the proceeding on the motion not being part of the suit to set aside the judgment as fraudulent, plaintiffs, the judgment debtors, not being served with notice and not appearing, while the parties in interest were different from those in the action in which the judgment was rendered, the order of the court canceling the satisfaction, the affidavits, stating no fact indieating that it was obtained fraudulently, or that the settlement was invalid as to the judgment debtors, and authorizing the collection of the remainder of the judgment by the attorney, was a nullity.</p> <p>Attorney and Client—Attorney’s Lien—Payment or Satisfaction of Judgment—Statute.</p> <p>3. Under Section 1088, L. O. L., touching attorney’s liens, where the judgment debtor in good faith pays or satisfies the judgment before notice of the lien of the judgment creditor’s attorney, the latter cannot enforce the judgment as against him.</p> <p>[As to lien of attorneys, see note in 51 Am. St. Rep. 251.]</p> <p>Execution—Sale on Execution—Injunction.</p> <p>4. A sale upon execution will be enjoined in equity when it would constitute a cloud on the title of realty.</p>

<p>From Lane: James W. Hamilton, Judge.</p> <p>In Banc. Statement by Mr. Justice Burnett.</p> <p>This is a suit by Simon Klovdahl against the town of Spring-field and others, in which the plaintiff undertakes to give a history of the doings of the council of Springfield resulting in building a cement sidewalk in front of his property and docketing a lien against his holdings for $580.21, whereby, as he avers, a cloud was created upon his title. Contending that the proceedings of the city in that respect were void, he brings this suit. He declares that the charter of the town requires notice to be given of the time when and place where the contract for making an improvement will be let, referring also to the ordinance providing for the same and the date of its passage. He then avers:</p> <p>“That said notice was not given for the letting of the contract for the construction of the sidewalk and curbs referred to herein, as required by the charter of said town.”</p> <p>According to his statement, the charter directs that, if the owners of two thirds of the property adjacent to the proposed improvement file with the recorder a written remonstrance before the letting of the contract, no contract shall be let. He complains:</p> <p>That a “remonstrance was filed on or about November 80, 1908, against the said improvement proposed to be made, and was signed by the owners of more than two thirds of the property adjacent to the said proposed improvement,” and that no notice of the same was taken by the council except that it was filed.</p> <p>He asserts, also, that the city has waived its lien because it did not immediately issue its warrant for the collection of the tax when the owner failed to pay the same within 20 days after its docketing. He claims, too, that the ordinance apportioning the amount to be collected from Ms property for tbe improvement does not correctly describe Ms holding, in that the enactment locates it in block 21, whereas it is in block-2, in the original town of Springfield.</p> <p>The defendants answered, enlarging somewhat upon the Mstory of the proceeding. A reply was filed, challenging the new matter of the answer in some particulars, a hearing was had, and a decree entered dismissing the suit, from which the plaintiff appeals.</p>

From Klamath: Henry L. Benson, Judge. In Banc. Statement by Mr. Chief Justice Moore. This is a suit by Clara Ream against Edward Ream for a divorce, on the alleged ground of cruel and inhuman treatment and personal indignities rendering her life burdensome.

<p>Statutes—Initiative Statutes—Legislative Repeal.</p> <p>1. The Constitution does not deny to the legislature the right to amend or repeal a statute enacted by the people in the exercise of the initiative.</p> <p>[As to self-executing provisions of Constitution, see note in Ann. Cas. 1914C, 1116.]</p> <p>Statutes—Repeal—Constitutional Requirements.</p> <p>2. Even though an independent act, complete within itself, Works a repeal by implication, the repealing statute is not pregnable for failure to observe Article IV, Section 22, of the Constitution, declaring that no aet shall be revised or amended by mere reference to its title, but the act amended shall be set forth at full length.</p> <p>Elections—Primaries—Filing for Nomination—Statutes—Validity.</p> <p>3. Although Laws of 1913, page 183, forbids nomination of candidates for public office by political parties except as provided by Sections 3349-3391, L. O. L., inclusive, as to direet primaries the legislature, by Laws of 1915, page 124, provided an additional method of nomination by filing and payment of fees which is valid in view of the facts that the legislature may amend an initiated statute, and that there is no conflict.</p> <p>Constitutional Law—Elections—Nominations—Free and Equal Elections—Privileges and Immunities.</p> <p>4. Laws of 1915, page 124, providing for nominations for primary election by payment of fee, as a method additional to that of Laws of 1913, page 183, providing for nominations without fee on petition, is not invalid as violating Article II, Section 1, of the Constitution, requiring all elections to be free and equal, or Article I, Section 20, prohibiting privilege or immunity legislation, since no distinction is made on the ballot, and the candidate may elect the method he will follow.</p>

<p>Appeal and Error—Restraining Order—Vacation.</p> <p>1. In a suit for aecounting-for commission for the sale of real estate, earned by plaintiff and defendants, and received by defendants, where the trial court granted a restraining order against the transfer of corporate stock received by defendants as a part of the commission, which order was dissolved on the rendition of a decree for defendants, and on appeal a justice of the Supreme Court reinstated the order, such order will not be vacated before final hearing, though plaintiff’s right to relief on the merits be doubtful, where the continuance of the order will not cause defendants any great inconvenience, and plaintiff has given an undertaking to pay damages sustained by defendants by reason of the injunction, if it be wrongful, or without sufficient cause.</p> <p>Injunction—Restraining Order—Discretion of Court.</p> <p>2. The granting or refusal of restraining orders rests in the sound discretion of the court; but this discretion is not an arbitrary one, and it must be exercised in accordance with the principles of equity ana good conscience.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 1. Statement by Mr. Justice McBride.</p> <p>This is an action in trover by T. Kondo and K. Kureye against Charles R. Aylsworth and Frank C. Espenhain, partners under the name of Sunnyside Fuel Company, for the taking and conversion of 71 cords of wood of the alleged value of $284.</p> <p>Defendants answered by general denial, and by way of counterclaim alleged that on May 10, 1913, plaintiffs sold and promised and agreed to deliver to defendants on the railroad track at Anderson Station a quantity of wood consisting of 1,000 cords, situated near said station, for the sum of $3.25 a cord for No. 1 wood and $2.75 a cord for No. 2 wood, and that the wood mentioned in plaintiffs’ complaint was a portion of the wood so sold to defendants; that between May 10 and June 24, 1913, plaintiffs delivered to defendants 62 cords of said wood, and on the ninth day of September, 1913, they delivered 71 cords, as a part of the total quantity sold to defendants, and that between the fourteenth day of May and the fifteenth day of June, 1913, defendants paid to plaintiffs the sum of $195.50 to apply on the purchase price of said 1,000 cords; that on or about the- day of September, 1913, plaintiffs repudiated said sale and refused to deliver the remaining portion of said wood so sold to defendants. Then follow allegations of special damage in the sum of $600 by reason of the alleged failure of defendants to deliver the wood, an allegation that the value of the wood delivered and unpaid for is $240.75, and a prayer for judgment against plaintiffs for $359.25.</p> <p>The answer being put in issue by appropriate denials of the new matter, there was a jury trial, and verdict for plaintiffs for $255.20, with interest from September 5, 1913, and a judgment accordingly, from which judgment defendants appeal, alleging as error the giving of certain instructions excepted to and the refusal of the court to give certain instructions requested.</p>

From Yamhill: Harry H. Belt, Judge. In Banc. Statement by Mr. Justice Harris. This is an action of ejectment by Martha A. Chance against C. C. Carter.

From Linn: William Galloway, Judge. Department 2. Statement by Mr. Justice Benson. This is a proceeding begun by the First National Bank of Albany, before the board of equalization of Linn County, in which it was sought to have the assessment of the bank’s capital stock reduced. The petition having been denied, an appeal was taken to the Circuit Court, where, after a hearing, a decree was entered affirming the action of the board, and plaintiff appeals.

<p>Mortgages—Action to Foreclose—Equitable Defense.</p> <p>1. In a suit to foreclose a purchase money mortgage, an answer, admitting the making of the mortgage, but alleging that the mortgagee falsely represented that he was the owner of the land described in the mortgage, and that it was free from all encumbrances, and that there was valuable timber on it which he owned, and that the mortgagor, relying upon such false representations, purchased and received a general warranty against encumbrances, that the purchase money, except the mortgage note in suit, had been paid, and that the outstanding and unexpired right to out and remove the timber amounted to more than the note, so that there was a total failure of consideration to the mortgagor’s damage, if insufficient as a counterclaim, contained all the elements of a valid defensive answer, good in equity.</p> <p>Mortgages—Foreclosure—Covenants.</p> <p>2. Such outstanding and unexpired right to cut and remove timber was a breach of the covenant against encumbrances which would have to be disposed of before equity would foreclose the purchase money mortgage.</p> <p>Covenants—Seisin—Breach.</p> <p>3. An outstanding title does not breach a covenant of seisin going to a paramount right to the fee and possession until there is an eviction or something equivalent thereto.</p> <p>Covenants—Encumbrances—Breach. i</p> <p>4. An outstanding mortgage breaches a covenant against encumbrances when the deed is delivered.</p> <p>Covenants—Seisin—Breach—Dower.</p> <p>5. An outstanding right of dower is not technically an encumbrance, but an interest in the fee covered by a covenant of seisin, instead of by covenants against encumbrances.</p> <p>Logs and Logging—Conveyances!—Construction.</p> <p>6. A conveyance of all the timber on designated land, coupled with a condition that it should be removed within ten years from the date thereof, amounted only to a sale of all the timber the grantee could cut and remove before that date.</p> <p>[As to existence of right to enter and take minerals as breaeh of covenant against encumbrances, see note in Ann. Cas. 1912D, 1140.]</p> <p>Appeal and Error—Remand—Leave to Apply for Further Relief.</p> <p>7. In a suit to foreclose a purchase money mortgage in which the mortgagor set up the equitable defense of the mortgagee’s encumbrance created by a conveyance of the timber with the right to remove it, but where, in view of the grantee’s failure to cut and remove any timber, the mortgagor’s damage was but small, and it reverted within six months, the cause will be remanded and continued to the expiration of the time for removal, so that damages might then be ascertained.</p>

From Lane: James W. Hamilton, Judge. Department 1. Statement by Mb. Chief Justice Moobe. This is a suit by A. C. Mathews against the Chambers Power Company, a corporation, to enjoin an alleged trespass upon real property. From a decree granting plaintiff the relief prayed for, defendant appeals.

From Morrow: Gilbert W. Phelps, Judge. In Bane. Statement by Mr. Justice Burnett. Held: and filed a cross-cómplaint against all the defendants demanding foreclosure of his junior mortgage. No other appearance was made by any defendant.

<p>Damages—Duty to Reduce.</p> <p>1. A municipal corporation is not liable for such continuing damage from a culvert diverting water on to land as could have been avoided by the exercise of reasonable and ordinary diligence by the land owner in preventing it.</p> <p>[As to right of municipality to drain water from highway on to adjoining land, see note in Ann. Cas. 1912B, 915.]</p> <p>Negligence—Contributory NegUgence—Failure to Reduce Damages.</p> <p>2. The failure of plaintiff to reduce damages suffered by the exercise of reasonable care is not contributory negligence, which is such an act or omission on plaintiff’s part amounting to an ordinary want of care as, concurring or co-operating with the negligent act of defendant, is the proximate cause or occasion of the injury complained of; while a failure to reduce damages does not preclude recovery, but merely affects the amount recoverable.</p>

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Harris. Upon tbe petition of Tom Garland, an attorney acting for A. M. Long, tbe circuit judge allowed a writ of habeas corpus.

From Multnomab: Calvin U. Gantenbein, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by A. E. Nolan against Vincent Cook and Frank L. Bunting, to establish a division line between realty alleged to be owned by the plaintiff and another tract said to belong to the defendants.

<p>Vendor and Purchaser—Damages—Remote and Uncertain.</p> <p>1. Injury to F., given an option on land by E. subject to lease given by E. to H., by reason of H. not breaking the sod, is not the direct and necessary result of E. not furnishing a man to assist H. in farming, as required by the lease, but is remote and uncertain; the lease merely providing that H. shall break so much of the sod ground “as he can, weather conditions and other conditions considered.”</p> <p>[As to effect on rights of parties under option contract of purchase of injury to or destruction of premises, see note in Ann. Cas. 1913A, 1295.]</p>

<p>. From Marion: William Galloway, Judge.</p> <p>In Banc. Statement Per Curiam.</p> <p>These are cross-appeals from the decision of the Circuit Court of Marion County in the'matter of an application of Mary Luella Finley for a pension under the Mother’s Pension Act, Chapter 42, Session Laws of 1913. In July, 1913, the petitioner filed her application in due form, setting forth the fact that her husband was wholly incapable of supporting her or her son, then about eight years of age. The petition was in regular form, and stated all the facts required by statute. Being of the opinion that the petitioner was not entitled to the relief sought, by reason of the fact that she was at work which kept her away from home much of the time during the day, and for other causes not necessary to mention here, the County Court took no action on the petition until July 30, 1915, when it entered an order denying the same. At various times, however, the County Court extended financial assistance under the provisions of the pauper statutes. The petitioner appealed from the decision of the County Court denying her application and, upon the hearing of the appeal in the Circuit Court, the latter found that she was entitled to a mother’s pension as prayed for in her petition, but held that she was guilty of laches in not compelling the Juvenile Court to act upon it at an earlier date, and allowed her compensation only from July 30, 1915.</p>

<p>From Marion: William Calloway, Judge.</p> <p>In Banc. Statement Per Curiam.</p> <p>This is an application by Eva Maud Wolfe for a widow’s pension, opposed by county of Marion of State of Oregon, from the judgment rendered, applicant appeals.</p>

Original proceeding in Supreme Court. Department 1. Statement by Mr. Justice Benson.

<p>From Lane: George F. Skipworth, Judge.</p> <p>In Banc. Statement Per Curiam.</p> <p>This is an action by tbe Meadow Valley Land & Investment Company, a corporation, against Mrs. Olivia Manernd to recover tbe amount of a promissory note given by tbe defendant to the plaintiff March 20, 1911, for $1,000, payable in one day, with interest at 8 per cent per annum, and providing for tbe recovery of a reasonable sum as attorneys’ fees in case action were instituted on tbe note. The complaint avers that tbe plaintiff is a corporation; that tbe defendant executed to it tbe promissory note; that no part thereof has been paid; and that $100 is a reasonable sum to be allowed as attorneys’ fees.</p> <p>Tbe answer denies some of tbe allegations of tbe complaint, and for further defenses sets forth ten .counterclaims, tbe first eight of which were allowed and are not controverted herein. Tbe ninth defense, which was also sanctioned, substantially avers that tbe defendant leased to tbe plaintiff a horse which it stipulated properly to care for and return to her in good condition; that while tbe plaintiff was using tbe animal it was kicked by another horse; that instead of caring for tbe injured horse as it bad agreed, tbe plaintiff continued to work tbe horse until December 13, 1913, when it died; and that the animal was worth $300, no part of which has been paid.</p> <p>Tbe tenth counterclaim alleges in effect that tbe promissory note mentioned was given for 20 shares of tbe plaintiff’s capital stock then held by I. P. Hower, who owed tbe corporation therefor a remainder of $1,000; that before procuring this stock tbe defendant informed 0. D. Linn, an officer of tbe plaintiff, of her contemplated purchases and inquired of him as to tbe kind and value of assets of tbe corporation, whereupon that agent detailed to her tbe character and worth of the plaintiff’s property, which representations were false, setting forth the particulars; that she believed these statements, and relying thereon negotiated for the purchase of the shares of stock, which principal fund of the corporation was of no value and in consequence thereof she had paid out on account of the stock so purchased $1,961.10, setting forth the items thereof.</p> <p>The reply put in issue the allegations of new matter in the answer. At the trial the defendant’s counsel obtained an order to amend the answer so as to aver that the plaintiff had violated its contract to return the horse, the reasonable value of which was $300, and that the corporation had appropriated the animal to its own use.</p> <p>The court granted a nonsuit as to counterclaim numbered ten. In referring to the attorneys’ fee as alleged in the complaint, the court told the jury that having heard the testimony on that subject, they should allow whatever sum therefor they considered reasonable. The defendant’s counsel thereupon inquired:</p> <p>“Suppose the jury should find these counterclaims equal to the note exclusive of attorneys’ fees, should there be anything then? I claim there should not be anything brought in for attorneys’ fees.”</p> <p>The court replied:</p> <p>“I don’t know whether you are entitled to that. I don’t believe you are.”</p> <p>An exception to this ruling was taken. The jury by special verdict found that the value of the horse was $300; that after crediting this sum and the amount of the first eight counterclaims there remained due on the note $48.77; and that $100 was a reasonable attorneys’ fee. Judgment was rendered thereon against the defendant for $148.77, from which she appeals, asserting an error was committed in excluding her tenth counterclaim. The plaintiff also appeals from that part of the judgment which awarded any sum for the horse.</p>

From Linu: William Galloway, Judge. Department 1. Statement by Mr. Justice Bean.

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Benson. This is an action by James Young against tbe Prouty Lumber & Box Company, a corporation, based upon the following facts: Plaintiff is a teamster, who, at the time of the accident which was the basis of this action, was employed in hauling lumber for the City of Seaside from defendant’s sawmill.

From Marion: William Galloway, Judge. In Banc. Statement by Mr. Justice Harris. T. B. Sheridan was the president and manager of the First National Bank of Bosebnrg until S. A. Sanford was appointed trustee to wind up the affairs of the bank. On March 28, 1904, W. J. D’Arcy signed a promissory note for $3,673.50, payable to the First National Bank of Bosebnrg.

From Lane: James W. Hamilton, Judge. Department 1. Statement by Mr. Justice McBride. This is a suit brought by Ida Patterson and 19 other residents of the City of Eugene against the Chambers Power Company and Frank L. Chambers, to enjoin them from widening the mill-race in the City of' Eugene and thereby cutting away and destroying the plaintiff’s property. The property involved constitutes an attractive residential portion of Eugene, and is of considerable value.

<p>From Pane: James W. Hamilton, Judge.</p> <p>Department 1. Statement by Mr. Justice McBride.</p> <p>This is a suit by tbe City of Eugene against the Chambers Power Company, a corporation, and Frank P. Chambers. From a decree in favor of plaintiff, defendants appeal.</p>

<p>From Clatsop: James A. Eakin, Judge.</p> <p>Department 2. Statement by Mr. Justice Burnett.</p> <p>This is a suit by the Flavel Land & Development Company, a corporation, against F. P. Leinenweber and the City of Warrenton, Oregon.</p> <p>Among others in Clatsop County, there are two incorporated towns, one the City of Warrenton, and the other the town of Clatsop. The defendant Leinenweber is the assessor of that county. The plaintiff avers that the officer is threatening and intending to list its real property for taxation in Warrenton, whereas its land is not within the boundaries of that municipality. The answer traces the history of the town of Clatsop, contending that its charter was unconstitutional in certain particulars, and that for a long time its government was inert, but that finally so far as they lawfully could the legal voters therein passed an ordinance providing for the manner of exercising the initiative and referendum powers reserved to municipal corporations and the legal voters by Section la of Article IV and Section 2 of Article XI of the Constitution; that afterward in pursuance thereof the legal voters amended the charter so as to exclude part of the territory originally within the municipal boundaries of Clatsop and that plaintiff’s land was in the part thus cut off. Subsequently, so the answer states, the City of Warrenton provided for an election to be held, not only within its corporate limits, but also in the outside territory sought to be included, and that the result was to enlarge the boundaries of Warrenton so as to take in the plaintiff’s property. On a hearing all ofher questions were waived; it was agreed that the proceedings were formally correct, and the cause was submitted upon the one question, to wit:</p> <p>“Has a municipality of the State of Oregon power to so change its boundary lines within its charter as to exclude territory theretofore included in its boundaries?”</p> <p>Or, to quote the plaintiff’s brief:</p> <p>“In other words, if the town of Clatsop had the authority by these ordinances and proceedings which are set forth in the answer and stipulation, and which are for the purposes of this case admitted to be regular, then the lands owned by the plaintiff are within the boundary lines of the City of Warrenton. If a municipality has not the power to change its boundary lines by eliminating territory, then these lands in controversy are within the town of Clatsop and it of course follows that they are not within the City of Warren-ton.”</p> <p>The Circuit Court entered a decree dismissing the suit, and the plaintiff appealed.</p>

From Wasco: William L. Bradshaw, Judge. In Banc. Statement by Mr. Justice Burnett. This is a suit by B. L. Sabin, trustee in bankruptcy of tbe estate of A. L. Kyniston, against T. E. Kyniston and H. A. Patton.

From Clatsop: James A. Eakin, Judge. Department 2. Statement by-Mr. Justice Harris. This is the second appeal of a dispute involving $90: See 72 Or. 321 (143 Pac. 1007). The plaintiff, John E. Wicks, alleges that he is an architect, that at the request of defendant, Frank H. Sanborn, he drew a set of plans reasonably worth $90 for a dwelling-house, and that the defendant has refused to pay for the plans.

From Lane: George F. Skipworth, Judge. Department 2, Statement by Mr. Justice Burnett. This is a suit by L. N. Eoney against the county of Lane, EL L. Bown, county judge, George M. Hawley and M. H. Harlow, county commissioners, and Jamás 0. Parker, sheriff of Lane County, Oregon. The plaintiff is a taxpayer owning taxable real and personal, property located in the City of Eugene, in Lane County, Oregon.

<p>From Marion: William Galloway, Judge.</p> <p>Department 2. Statement by Mr. Chief Justice Moore.</p> <p>This is a suit by the Baldwin Company, a corporation, against J. F. Savage and Margaret Savage, L. F. Savage, W. E. Savage and Alwilda Savage, and James Withycombe, Ben W. Olcott and Thos. B. Kay, constituting the state land board, to foreclose a mortgage and to recover the amount of four promissory notes, the payment of which was thus undertaken to be secured. The admitted facts, respecting the execution of this mortgage and of other securities, are that the plaintiff is a corporation engaged in manufacturing and selling musical instruments. The company delivered to the defendant L. F. Savage, its local agent at Salem, Oregon, pianos which he was to sell at stipulated prices, retain a specified commission, and pay over the remainder to his principal. In April, 1913, 0. A. Berger, the plaintiff’s general agent, visiting Salem, discovered that Savage had sold goods so delivered, receiving therefor more than $2,000, which sum he unlawfully appropriated and was unable to repay any part thereof. After several days’ effort Berger secured from such local agent and from his father, the defendant J. F. Savage, their promissory notes for the sum so misappropriated. The officers of the plaintiff’s Pacific Coast agency at San Francisco, California,.refused to accept these notes, and demanded that they should be secured. For that purpose E. J. Jorgenson, a representative of the company, called upon L. F. Savage, and on June 25,1913, procured from him and from his father their new promissory notes, one for $552, payable October 5th of that year, and three others, each for the sum of $515 and maturing, respectively, April 5,1914, August 5th and December 5th of the latter year, with 8 per cent interest per annum. In order to secure their payment J. F. Savage and his wife, the defendant Margaret, the mother of the defendant L. F. Savage,, executed to the plaintiff a mortgage of 30 acres of land in Marion County, Oregon, which sealed instrument was duly filed for record. At the time this security was given, Berger, again visiting Salem, detected another misappropriation by his local agent, amounting to $601, to evidence which debt J. F. Savage, on June 28, 1913, also gave the plaintiff his promissory note, maturing December 24th of that year, and secured the same by a chattel mortgage of eight horses and ten cows. As partial indemnity for the liability thus assumed, L. F. Savage, on June 30, 1913, executed to his father a promissory note for $1,000, maturing in a year, with 8 per cent interest, and to secure the payment thereof also gave a chattel mortgage upon two horses, one express wagon, one buggy, and one electric piano, which mortgage was duly filed. About July 26, 1913, the plaintiff took from L. F. Savage all its goods then in his possession and discontinued his agency. When the first promissory note secured by the realty mortgage was about due, an agreement was entered into by the plaintiff and J. F. Savage, at his request, whereby it was stipulated that the chattel mortgage note might be paid off in lieu of euch first note, the maturity of which was thus deferred until December 24, 1913.</p> <p>This suit was commenced December 19, 1913, prior to the maturity of the first note, the payment of which had been deferred until the 24th of that month. A supplemental complaint, in the usual form, was filed May 10, 1915, alleging that no payments had been made on the realty mortgage notes. The answer of the defendants J. F. Savage and Margaret Savage denies some of the averments of the complaint, and for a further defense alleges, in substance, that prior to and on June 25, 1913, the plaintiff’s agents accused the defendant L. F. Savage of having converted to his own use about $2,100 belonging to the company, thereby rendering himself liable to a criminal prosecution for a felony, which action would be instituted unless J. F. Savage would repay that sum to the plaintiff or execute to it promissory notes evidencing that amount; that, believing such representations to be true, and that the threat would be executed unless complied with, he, while laboring under the fear and duress caused by the menace, executed the four promissory notes mentioned in the complaint; that thereafter the plaintiff’s agent represented to the defendant J. F. Savage and to his wife that their son would be prosecuted in the criminal courts of this state for the misappropriation of such sum of money unless they executed to the plaintiff a mortgage of the real property described in the complaint to secure the payment of the four promissory notes; that under the impulse of such threat they executed the real estate mortgage; and that the lien thus undertaken to be created constitutes a cloud upon the title to such land. For a second defense the execution of the chattel mortgage and note is alleged to have been procured under the same threat as in the first instance; that J. F. Savage paid to the plaintiff $601, the sum named in the chattel" mortgage note, and interest thereon, while laboring under the threats that his son would be prosecuted for the commission of a felony unless such payment were made. The answer prays that the notes and the realty mortgage be set aside, and that the answering defendants recover from the plaintiff the sum of $601 so paid on account of the chattel mortgage.</p> <p>The reply put in issue the allegations of new matter in the answer, and further averred that the promissory notes mentioned were executed in consideration of extending to the defendant L. F. Savage further time within which to pay his indebtedness to the plaintiff. For a further reply it is alleged that the defendants ought to be estopped to set forth the separate defense relied upon for that they paid the amount due on the chattel mortgage note, and that after some of the notes secured by the real estate mortgage had become due, they, with full knowledge of all the circumstances and conditions hereinbefore set forth, ratified the contract, and promised to pay the amount of such notes in consideration of an extension of time for the payment thereof. Based on these issues, the cause was tried, resulting in a decree canceling the notes and mortgage sued on herein, but refusing to award a repayment of any part of $601 received on account of the chattel mortgage note. From this decree the plaintiff and the answering defendants separately appeal.</p>

From Marion: William Galloway, Judge. Department 2. Statement by Mr. Justice Bean. This is a proceeding by Arthur Berridge against Marion County, County Court of the State of Oregon for Marion County, and Max Gehlhar, clerk of said court, by a writ of review to re-examine the action of the County Court of Marion County in disallowing the claim of plaintiff for auditing the books and accounts of that county amounting to $1,523.11.

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice McBride. This is a suit by the Carlton Lumber Company, a corporation, against the Lumber Insurance Company, a corporation, to reform two insurance policies issued by the defendant, covering new equipment added by plaintiff to the sawmill plant at Carlton, Oregon; each policy being for the sum of $5,000.

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement hy Mr. Justice Benson. This is a suit by Marcella Clark against A. E. Clark, The following facts appear by the record: Plaintiff filed her complaint herein on January 7, 1915, and on January 12th, defendant filed a motion to strike it from the files for want of verification.

<p>Master and Servant—Master’s Duty—Employers’ Liability Act.</p> <p>1. Under Employers’ Liability Act (Laws 1911, p. 16), Section 1, an elevator company, employing a constructor’s helper to do repair work upon the premises of a realty company and having eharge of such work and control of the situation, was bound to use every device, care and caution which it was practicable to use for the protection and safety of life and limb.</p> <p>Negligence—Condition of Premises—Elevator.</p> <p>2. The owner of a building in which an elevator was operated was bound to take reasonable care and precaution against injuries to a constructor’s helper in the employ of an elevator company engaged in repairing sueh elevator.</p> <p>[As to liability of master to servant injured by elevator, see note in 56 Am. St. Rep. 806.]</p> <p>Master and Servant—Action for Injuiy—Question for Jury—Control of Place of Work.</p> <p>3. In an action by plaintiff, employed by an elevator company as a constructor’s helper, for injury while on the premises of a realty company engaged in the repair of an elevator, evidence that the elevator company assumed control of the elevator in the adjoining shaft by which plaintiff was injured held sufficient to take the ease to the jury on the issue of failing to provide a safe place in which to work.</p> <p>Appeal and Error—Right to Complain—Instructions.</p> <p>4. Plaintiff having joined the employer and the owner of the premises upon whieh he was injured while engaged in repair work, and alleged negligence on the part of each concurring in the resulting injury, neither defendant could complain of an instruction more favorable to its eodefendant than to itself.</p> <p>Negligence—Master’s Liability—Contributory Negligence.</p> <p>5. Under Employers’ Liability Act, Section 6, the contributory negligence of the person injured is not a defense, but may be taken into account in fixing the amount of the damages.</p> <p>Trial—Instructions—Evidence.</p> <p>6. In an action by a constructor’s helper in the employ of an elevator company for injury while engaged in repair work on the premises of a realty company by reason of the employer’s failure to provide a safe place in which to work, an instruction that, if there was a safe way to do the work and plaintiff voluntarily chose an unsafe way, his negligence would defeat recovery was properly refused, where there was no evidence that there were two ways of doing the work, one dangerous and the other safe.</p>

Original proceeding in Supreme Court. In Banc. Statement by Mr. Justice Harris. In 1914 George M. McBride was elected to the office of state senator from the Fourteenth Senatorial District, comprising Clackamas, Columbia and Multnomah Counties, for the term ending January, 1919. On August 3, 1916, he resigned.

<p>From Multnomah: George N. Davis, Judge.</p> <p>Department 2. Statement by Mr. Justice Harris.</p> <p>The plaintiff, William Neilson, owned 12 lots in a tract of land known as “Buena Vista Orchards” in Wasco County, Oregon. On July 20, 1911, 0. Masters contracted to clear and plow all the lots, and was to receive $5,700, “or $71.25 per acre,” for certain designated lots, and $400 for the work to be done on the remaining lots, aggregating $6,100 for the entire work which the parties agreed “shall be completed not later than February 1, 1912.” It was also stipulated that:</p> <p>“On or before the fifth day of each month the said Wiliam Neilson, or his duly appointed agent, shall pay to the contractor the amount then due for work completed; the estimate shall be made by said William Neilson or his duly appointed agent.”</p> <p>In order to indemnify Neilson for any loss which he might sustain on account of any breach of the contract by Masters, the latter as principal, and the Title Guaranty & Surety Company, a corporation engaged in the bonding business, as surety, gave to Neilson a bond in the penal sum of $6,100. It is provided in the bond that in case of default on the part of the principal, the surety shall have the right to complete the contract and “shall be subrogated and entitled to all the rights and properties of the principal arising out of the said contract and otherwise, including all securities and indemnities therefor received by the obligee, and all deferred payments, retained percentages and credits, due to the principal at the time of such default, or to become due thereafter by the terms and dates of the contract.”</p> <p>Alleging that Masters violated the contract in various particulars, and that ‘ ‘ during the month of February, and after the term had lapsed within which said contract was to be performed, said defendant C. Masters further breached and broke said, contract by abandoning” the work, leaving certain of the lots only partially cleared, the plaintiff commenced this action on the bond against the principal and surety.</p> <p>Masters did not appear, but the surety answered and alleged that it had been discharged from any liability because Neilson had paid Masters sums of money at various times without making any estimate, and without regard to the amount of work completed, and that approximately one half of the contract price had been paid, although no part of the work was ever completed. The parties consenting, the cause was tried by the court without a jury. After hearing the evidence the trial judge made findings of fact, upon which Neilson was awarded a judgment against the surety for $6,100, and the latter appealed.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Statement by Mr. Chile Justice Moore. This is a suit to reinstate a mortgage and to foreclose the lien thereof.

Prom Crook: T. E. J. Duffy, Judge. In Bane. Statement by Mr. Justice Bean. This is an action by George H. Brewster against Crook County to recover a balance of $155 for services as water-master in Crook County, and $177 for the work of assistants for 46 days, claims for which Were assigned to plaintiff, Brewster. The cause was tried to the court and jury, and a verdict rendered in favor of plaintiff. Prom a judgment thereon the county appeals.

From Douglas: James W. Hamilton, Judge. Department 2. Statement by Mr. Justice Bean.

From Multnomah: Robert G. Morrow, Judge. In Bane. Statement by Mr. Chief Justice Moore. • Harry Van Zandt commenced this suit to recover from A. M. H. Parson the remainder due upon the sale of an automobile and to foreclose a vendor’s lien thereon. Ralph Wills, George Patterson, and Lee Armstrong were made codefendants; the complaint charging that they had or claimed some interest in or lien upon the car, which qualified right of property was inferior to plaintiff’s lien.

From Benton: James W. Hamilton, Judge. Department 1. ■ Statement by Mr. Justice Burnett.

From Multnomah: William Galloway, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by H. Nelson against Brown & McCabe. The defendant is a corporation engaged as stevedores in Portland, Oregon. It is admitted that at the time of the grievance of which the plaintiff complains he was in its employ and received an injury while working for the defendant upon a certain Japanese steamship in the port of Portland.

<p>Criminal Law—Appeal—Perfecting Appeal—Transcript—Statute.</p> <p>1. Under Sections 1610, 1611, L. O. L., whereby an appeal becomes perfected by serving and filing with the clerk a notice of appeal, and Section 1621, as amended by Laws of 1913, page 496, providing that on appeal the clerk of the court where the notice thereof is filed must, within 30 days thereafter, or such further time as the court may allow, transmit a certified copy of the notice, certificate of cause, if any, and the judgment-roll, to the clerk of the Supreme Court, an appeal will be dismissed for failure to file the transcript within the time prescribed by law, unless the failure is shown to be due to the negligence of the clerk.</p> <p>Criminal Law—Perfected Appeal—Subsequent Appeal—Stipulation.</p> <p>2. Where a defendant perfected his first appeal by serving and filing the notice required by the statute, he thereby exhausted his right of appeal, and it was not within the power of the parties to stipulate for a new notice and a new appeal.</p>

From Clatsop: James A. Eakin, Judge. In Banc. Statement by Mr. Justice McBride. Action by Bertin & Lepori against N. Mattison, Martin Franeiscovich, and Paul Bakotich.

Prom Marion: William Galloway, Judge. In Banc. Statement by Mr. Justice McBride. This is a suit for injunction by Daniel Webster against U. G. Boyer.

Original proceeding in disbarment. Department 1. Statement Pee Curiam. Original proceeding by the State of Oregon before the Supreme Court, on the relation of John McCourt, John H. McNary, O. P. Coshow, Loring K. Adams and Alfred Hampson, comprising the grievance committee of the Oregon Bar Association, to secure the disbarment of George N. Farrin, as a practicing lawyer. Defendant suspended from membership of the bar of the court for one year.

<p>From Multnomah: Calvin TJ. Gantenbein, Judge.</p> <p>The defendant, H. A. Stiles, was indicted, tried and convicted of the crime of larceny by bailee, and he appeals. A statement of the facts will be found in the opinion of the court.</p> <p>Department 2.</p>

From Marion: Percy R. Kelly, Judge. Department 1. Statement by Mr. Justice McBride. The defendant, Fred McClard, was indicted for the crime of burning property with intent to injure and defraud the insurer; which crime it was alleged was committed on the seventh day of November, 1915.

<p>Death —Husband and Wife —Loss of Consortium — Wife's Right of Action.</p> <p>1. At common law, the husband could maintain an action for injury to or death of his wife, whereby he lost her services or consortium; but the wife herself could not maintain a corresponding action to recover for the loss of services and consortium due from the husband to her.</p> <p>Death—Husband and Wife—Statutes.</p> <p>2. Section 7050, L. O. L., which repeals all laws imposing or recognizing civil disabilities upon a wife which are not imposed or recognized as existing against the husband, does not confer on a wife any new right of action, but merely allows her to act independently of her husband for the redress in the courts for the infringement of rights which she already had.</p> <p>Choses in Action—Common Law—Statutes.</p> <p>3. Choses in action exist only by virtue of the common law or statute; thus, a claim for the loss of the society or assistance of a husband cannot be enforced by either a wife or widow, unless created by statute.</p> <p>Civil Rights—Natural Rights—Husband and Wife.</p> <p>4. The natural rights of a person at common law are those of personal security in the legal enjoyment of life, limb, body, health and reputation, the right of personal liberty, and the right of private property, and do not include rights growing out of the marriage relation, as, for instance, consortium, since those are based on social customs.</p> <p>Husband and Wife—Actionable Interference With Marital Rights.</p> <p>5. Marital rights are invaded, giving rise to a right of action in husband or wife, whenever a third person, through machination, enticement, seduction or other wrongful, intentional or malicious interference with the marital relation deprives the husband or wife of the consortium of the other; but a negligent wrong to the husband does not furnish a cause of action in favor of the other spouse unless by special legislative action.</p> <p>Death—Death of Husband—Wife’s Right of Action.</p> <p>6. Where a husband suffered personal injuries through the negligence of another, sued therefor and compromised, his widow, after his death, had no right of action-for the consequential injury to her through loss of consortium and support; there being no statute giving the widow such a right of action.</p>

<p>From Multnomah: Geoege N. Davis, Judge.</p> <p>Department 1. Statement by Mr. Justice McBride.</p> <p>This is a suit by Carrie M. Elwert, as a taxpayer of the City of Portland, against F. C. Knapp, substituted for F. W. Mulkey, Ben Selling, John H. Burgard, Charles B. Moores, Dan Kellaher, as Dock Commissioners of the City of Portland, and the City of Portland, a municipal corporation, to restrain the city from paying the sum of $40,000 to William Reid as the purchase price of the following described property:</p> <p>“Beginning at a point pn the north line of East Washington Street 100 feet west of the west line of Water Street, and running thence westerly along the north line of East Washington Street to the low-water mark of the Willamette River, a distance of about 159 feet more or less; thence northerly along the low-water mark of the Willamette River to a point 50 feet north of the point of beginning; thence east 159 feet more or less to a point 100 feet west of the west line of Water Street; thence south 50 feet to the point of beginning, together with the right to wharf out to the established harbor line of the Willamette River.”</p> <p>It is alleged that Reid has no title to said property, that the payment of any money therefor will be a waste of the funds of the city, and impose a great and unnecessary burden upon the taxpayers, and that plaintiff is a large taxpayer and will be especially damaged thereby.</p> <p>The defendants answered by a general denial of the allegations of the complaint respecting the lack of title in Reid, and alleged that the commission had purchased of him all of blocks 1 and 2, as shown on the plat of East Portland, which former municipality is now included in the City of Portland, and that, there being some question raised as to the validity of Reid’s title to the south 50 feet of block 2 and the water and wharfage rights adjoining, and appurtenant thereto, the commission had by agreement with Reid withheld payment of the sum of $40,000 of said purchase price until it should be ascertained that neither the plaintiff nor the heirs of Arthur H. Johnson, deceased, had any estate or interest in said property; that a suit is now pending between the City of Portland and the heirs of said Arthur H. Johnson for the purpose of settling such claims as they may have, if any, in said property; that defendants do not intend to pay said sum of money until final adjudication of the alleged claims of said heirs shall have been had in such court. The defendants by way of cross-complaint allege:</p> <p>“That defendant City of Portland is the owner in fee simple and in possession of the property described as beginning at' a point on the north line of East Washington Street 100 feet west of the west line of Water Street, and running thence westerly along the north line of East Washington Street to the low-water mark of the Willamette River; thence northerly along the low-water mark of the Willamette River to a point 50 feet north of the south line of block 2 in East Portland, according to the duly recorded plat thereof, situate in the corporate limits of the City of Portland, county of Multnomah, State of Oregon, said distance being measured at right angles to said south line; thence east parallel with the south line of said block 2 to a point 100 feet west of the west line of East Water Street measured at right angles to said west line; thence south 50 feet to the place of beginning-—together with the right to wharf out to the established harbor line of the Willamette River and also all river, water and wharf rights, and all other rights appertaining or appurtenant to said property; that said property embraces a part of block 2 in said East Portland, all of which is owned by and in the possession of said City of Portland, together with all the river, water and wharf rights and privileges adjacent or appurtenant thereto, and all other rights thereunto belonging or appertaining; that plaintiff claims some right, title or interest in or to said property or some part thereof, the exact nature and extent of which is to plaintiff unknown, but whatever the same may be the same is wrongful.”</p> <p>Then follows a prayer that plaintiff’s suit be dismissed; that defendants’ title to the premises be' declared valid and quieted; and that plaintiff be .enjoined from asserting any estate, right, or interest therein. The plaintiff answered claiming title in herself by mesne conveyances from James B. Stephens,' the original grantee of the United States, and his successors, and by way of separate reply alleged:</p> <p>“That on the nineteenth day of May, 1909, one M. W. Parelius, without right or title to any real estate described in the deed except lot 5, block 2 of East Portland, executed a pretended deed attempt-^ ing to convey to one William Reid lot 5, block 2, together with the premises beginning at the high-water mark of the Willamette River on the western prolongation of the north line of East Washington Street, and running thence westerly to the United States harbor line of the Willamette River; thence northerly along the harbor line 50 feet; thence east to the high-water mark of the Willamette River; thence south 50 feet to the point of beginning—which paper is recorded in Book 455, on page 284, Deed Records of Multnomah County, Oregon; that on the tenth day of April, 1865, one James B. Stephens filed a plat of the City of East Portland in the office of the county clerk of Multnomah County, Oregon, which plat is recorded in Book F, on page 116, and said plat is the plat referred to in the deed alleged to have been executed by said William Reid to the City of Portland, and said plat shows block 2 and a scale of distance is set forth on said plat, and no lots are numbered on the blocks of said plat, but a key block is also set forth upon said plat showing the manner and extent of numbering the lots contained in a block, and that said scale and said key block show that block 2 is 160 feet on tbe south side of said block and 116 feet on the north side of said block and 200 feet on the east side of said block, and that lots are 100 feet east and west and 50 feet north and south, except such lots as are contained in fractional blocks, in which case lots 1, 2, 3 and 4 are 50 feet from the north line to the south line and such distance from the east line to the west line as there is distance between a point 100 feet west of the east line of said fractional blocks and the western boundary of said fractional blocks, as shown on said plat, in accordance with the scale shown on said plat; that said premises described in the complaint according to the said plat of East Portland would be designated and described as lot 4, block 2, of East Portland; that the Willamette River is a tidal stream, and the ordinary tide is 2% feet above low water, and the ordinary low water of the Willamette River is zero, and said zero is, .96 of a foot above mean sea level at Astoria, and mean sea level at Astoria is 4 feet above mean low water at Astoria, and ordinary high water of the Willamette River is 3 feet above zero; that at the time of the execution of said deed by said Parelius to said William Reid May 19, 1909, the elevation of the west line of lot 5 was 12.4 feet above said zero, and the elevation of the western line of block 2, as shown by the plat, between the south line thereof and a line 50 feet north of said south line, was 8.1 feet, and ever since have been and now are the same elevations as aforesaid, and the water line at zero stage of the river is 195.5 feet west of the west line of lot -5, block 2, and that the water line on May 19, 1909, was, ever since has been, and now is the following distances west of the west line of lot 5, to wit: At 1 foot above zero, 126 feet; at 2 feet above zero, 113.7 feet; at 3 feet above zero, 102 feet; at 4 feet above zero, 92.5 feet. ’ ’</p> <p>The defendants filed a supplemental answer setting up the fact that since the original answer the suit begun by the plaintiff against the heirs of A. H. Johnson had terminated in a decree adjudging that the City of Portland was the owner of the property in dispute and forever quieting its title thereto. •</p> <p>It was also alleged as a bar to plaintiff’s claim in this suit and as ground for affirmative relief that in the case of Carrie M. Elwert v. William Reid, 70 Or. 318 (139 Pac. 918, 141 Pac. 540), which was finally decided in this court on the ninth day of May, 1914, it was adjudged and decreed that Carrie M. Elwert had no right, title or interest in lot 5 of block 2, and that the premises lying west of lot 5, and between it and the harbor line of the Willamette River, are pertinent to lot 5; that said William Reid, the predecessor in title of defendant City of Portland, was the owner of the exclusive right of wharfage and possession in and to the same, and that Carrie M. Elwert has no right, title or interest in and to said real property or any part of said right of wharfage; that her claims thereto were null and void, and that she was by said decree enjoined and restrained from asserting any right to said property; that in May, 1915, Reid relinquished to the city the right to maintain a water-pipe across said premises and removed the pipe, and that his alleged easement across said premises had thereby become extinguished; that about July 7th M. W. Parelius and wife released and quitclaimed to the City of Portland all their interest in said property. By stipulation filed it was agreed that the matter in the supplemental answer should be treated as denied so far as it affected any right of plaintiff.</p> <p>There was a trial and findings and decree for defendants, and plaintiff appeals.</p>

From Washington County: James U. Campbell, Judge. Department 1. Statement by Mr. Justice Harris. The State of Oregon is attempting to escheat to it the property owned by James McNulty, who died intestate in April, 1907, leaving real' and personal property. The County Court appointed William T. Finnigan as administrator.

From Multnomah: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice Burnett. In the municipal court of the Oity of Portland the defendant was convicted of the violation of a certain ordinance relating to the height of fences. He appealed to the Circuit Court.

<p>Indictment and Information—Following Language of Statute—-Conversion by Trustee.</p> <p>1. An indictment charging that defendant, being trustee of certain money for benefit of M., did, with intent to defraud, unlawfully convert it to his own use and benefit, being in the language^ of Section 1962, L. O. L., denouncing the crime of wrongful conversion of property by a trustee, is sufficient.</p> <p>[As to when the charge of crime in indictment may be in language of the statute, see note in 94 Am. Dec. 253.] .</p> <p>Embezzlement—Indictment—Description of Money—Conversion by Trustee.</p> <p>2. It is enough for an indictment under Section 1962, L. O. L., for conversion by a trustee to charge the conversion of “$10,000,” without alleging what kind of money it was; Section 1448, subdivision 6, declaring an indictment sufficient if the act charged as a crime is stated with such a degree of eertainty as to enable a person of common understanding to know what is intended.</p>

<p>Acknowledgment—Sufficiency of Certificate of Acknowledgment.</p> <p>1. In considering tbe sufficiency of tbe certificate of acknowledgment of a mortgage; the whole instrument should be examined.</p> <p>Acknowledgment—Certificate—Names' of Mortgagors—Clerical Error —Statute.</p> <p>2. Under Section 7109, L. O. L., relative to certificates of acknowledgment of mortgages, where the certificates of acknowledgment of a mortgage identified the parties as known to the officer taking the acknowledgment to be the persons executing the instrument, the fact that the names appeared spelled as “Samuel H. Smith” and “Adora L. Smith,” instead of the names of the mortgagors, Chester A. Smith and Otis S. Smith, will not vitiate the instrument, the presumption being that the variance in names was the result of a mere clerical error, asi the material matter is the identification of the mortgagors, and not the notation of their names.</p> <p>[As to when defects in acknowledgments are, and when they are not, fatal, see note in 108 Am. St. Rep. 525.]</p> <p>Vendor and Purchaser — Certificate of Acknowledgment — Record— Notice.</p> <p>3. A certificate of acknowledgment of a mortgage failing to name the .acknowledging party does not affect the validity of the acknowledgment, where reference is made in the certificate to the party who executed the conveyance, nor does it render the reeord of the instrument less efficacious to impart constructive notiee to a subsequent purchaser.</p> <p>[As to eonclusiveness of certificate of acknowledgment, see notes in 1 Am. Dec. 81; 54 Am. St. Rep. 150.</p> <p>Acknowledgment—Certificate—Sufficiency.</p> <p>4. The language of a certificate of acknowledgment of a mortgage will be liberally construed, and, when it refers to the conveyance, reference may be had to the body of the deed or mortgage in aid of the certificate, which is sufficient if the two together show a substantial compliance with the statute.</p> <p>Acknowledgment—Duty of Officer Taking—Presumption—Statute.</p> <p>5. There is a presumption that the officer taking an acknowledgment of a deed or mortgage complied with Section 7109, L. O. L., requiring that he know or have satisfactory evidence that the person making the acknowledgment is the individual described in and who executed the conveyance.</p> <p>Acknowledgment—Mortgages—Form.</p> <p>6. No particular form is required for an individual acknowledgment of a mortgage.</p> <p>Bankruptcy—Right of Trustee—Bona Fide Purchaser.</p> <p>7. A trustee in bankruptcy, having the right of an attaching creditor, is not ipso facto a bona fide purchaser for value, and that he is such a purchaser, unaffected by outstanding equities against the bankrupt, is an affirmative defense, which must be pleaded and proved.</p> <p>Reformation of Instruments—Equitable Jurisdiction — Parol Testimony.</p> <p>8. Equity will exereise its jurisdiction for the correction or reformation of a written instrument on the ground of mutual mistake, and for sueh purpose will receive parol testimony.</p> <p>Reformation of Instruments—Between What Parties.</p> <p>9. Reformation of a written instrument on the ground of mutual mistake will be decreed in a court of equity as between the original parties or those claiming under them in privity, such as judgment creditors.</p> <p>Reformation of Instruments—Mistake—Pleading.</p> <p>10. In a suit to reform a deed or written contract on the ground of mistake, plaintiff should plead the particular eircumstanees constituting the mistake.</p> <p>Reformation of Instruments—Suit to Reform Note and Mortgage— Complaint—Sufficiency.</p> <p>11. In suit to reform a note and mortgage against the mortgagors and the trustee in bankruptcy of one of them, where the complaint did not show that it was the intention of the parties that an alleged oral agreement as to the time of payment of interest should be incorporated in the note, nor that it was not the intention of either of the parties to rely upon the oral agreement, averred to have been made both before and after the execution of the note, and did not disclose when the alleged omission was discovered by plaintiff, nor what instructions were given the scrivener, or by whom, asserting no fraud on the part of the mortgagors, the circumstances relating to the transaction, as set forth, being very meager, sueh complaint was insufficient against demurrer on the ground that it did not state facts sufficient to constitute a cause of action.'</p> <p>Costs—Appeal and Error—Failure to Raise Point Below.</p> <p>12. In suit to reform a note and mortgage, where the specifications of a defendant’s demurrer to the complaint did not direct the attention of the trial court to the point urged against it on sueh defendant’s appeal, he could not-recover costs, though successful.</p>

<p>From Columbia: James A, Eakin, Judge.</p> <p>Department 1. Statement by Mr. Justice Harris.</p> <p>This is an action by Flora I. Foreman against School District No. 25, of Columbia County, Oregon.</p> <p>The plaintiff and the directors of school district No. 25 of Columbia County agreed in writing “that the said Flora I. Foreman is to teach the public school of district No. 25 for the time of eight months” for $85 per month, “commencing on the first day of September, 1913, and for such services lawfully and properly rendered the directors of said district are to pay to said Flora I. Foreman the amount that may be due according to this contract, on or before the eighth day of May, 1914.” After the plaintiff had taught about two months charges against her were filed with the school board, but she was exonerated after a hearing. Some of the patrons of the school were dissatisfied, and caused a recall election to be held on March 21, 1914, for the purpose of unseating some of the directors. Immediately after the election a meeting of the directors was held, and “it was voted to go to the schoolhouse in a body Monday, the 23d of March, and give rulings and instructions to the teachers in regard to their conduct, and it was also decided that, if they do not promise to obey, to give them five days in which to resign.” The plaintiff refused to obey the “rulings and instructions” which the directors attempted to give, and because of such refusal she was notified in writing that her contract “has been and is canceled and abrogated to take effect from and after Friday, March 27, 1914.” The plaintiff presented herself at the schoolhouse on Monday, March 30th, but the directors refused to permit her to continue teaching. The plaintiff was paid in full for the first seven months provided for in the contract, and she is now attempting to recover $85, which is the amount she would have received if she had been permitted to teach until the end of the period specified in the contract. The complaint recites the contract, alleges that the' plaintiff taught seven months, but was then wrongfully dismissed, and not permitted to teach the eighth month, and concludes with a demand for a judgment for $85.</p> <p>The answer admits that the teacher was dismissed, and explains the dismissal by alleging that the plaintiff taught her pupils “principles of anarchy and disloyalty to their government, among other things, that the government under which she and they live ‘is rotten to the core’ that' she also taught her pupils “that there is no God, and that Jesus Christ is not the Son of God; and that the plaintiff during the entire seven months that she taught under her contract set forth in her complaint performed such services as she rendered in an unlawful and improper manner and in such a way as to disrupt the school and the entire community—which several and many acts of misconduct on her part resulted in numerous and frequent breaches of her contract on her part and made it necessary and the duty of the defendant school board to discharge the plaintiff as such teacher.”</p> <p>A jury trial resulted in a judgment for the defendant, and the plaintiff has appealed.</p> <p>Department 1.</p>

From Yamhill: Webster Holmes, Judge. Department 1. Statement by Mr. Justice Harris. This is a suit by R. N. Magness against Hattie M. Ditmars, by Tillie Ditmars Kirkwood, general guardian of her person and estate, and Tillie Ditmars Kirk-wood, as guardian ad litem of Hattie M. Ditmars.

From Multnomah: Harry H. Belt, Judge. Department 2. Statement by Mr. Justice Bean. Tbis is a suit by John E. Butson against W. H. Misz and Alice M. Misz, his wife, to have the defendants declared trustees for the benefit of the plaintiff in the sum of $700. From a decree in favor of plaintiff, defendants appeal. .

From Coos: James W. Hamilton, Judge. The defendant, Otto Edlund, was convicted of illegally selling intoxicating liquor, and lie appeals. Submitted on brief under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi). In Banc.

<p>Prom Marion: Percy R. Kelly, Judge.</p> <p>In Banc.</p> <p>Statement by Mr. Justice McBride.</p> <p>The defendant, Alfred Aplin, was indicted for the crime of selling intoxicating liquor without a license. The charging part of the indictment is as follows:</p> <p>“The said Alfred Aplin, on the fifteenth day of July, A. D. 1915, in the county of Marion and State of Oregon, then and there being, did then and there unlawfully sell two quarts of malt liquor, to wit, beer, to W. B. Grill without first obtaining a license therefor, as provided by law.”</p> <p>The defendant demurred on the grounds: (1) That the indictment did not state facts sufficient to constitute a crime; (2) that the indictment did not substantially comply with the requirements of Chapter VII, Title XVIII, L. O. L., in that it failed to state the particular circumstances of the crime charged. The demurrer was sustained, and the state appeals.</p> <p>Submitted on brief under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi).</p>

<p>From Marion: Percy R. Kelly, Judge.</p> <p>In Banc. Statement Per Curiam.</p> <p>Four indictments were found against Alfred Aplin for selling intoxicating liquor without a license, and from judgments sustaining demurrers thereto, the state appeals.</p>

<p>From Coos: George F. Skipworth, Judge.</p> <p>In Banc.</p> <p>Statement by Mr. Justice Bean.</p> <p>The Coos Bay Times Publishing Company, a corporation, brings this action against Coos County to recover compensation for printing the delinquent tax list for said county. From a judgment rendered on a verdict in favor of defendant, plaintiff appeals.</p> <p>Submitted on brief under the proviso of Supreme Court Rule 18; 56 Or. 622 (117 Pac. xi).</p>

<p>Executors and Administrators—Sale of Realty—Jurisdiction of County Court.</p> <p>1. By tbe publication of a citation to some of the parties interested in an estate and personal service as to the others, the County Court acquired jurisdiction to make a decision on the matter of an administrator’s application for an order to sell realty.</p> <p>Executors and Administrators—Sale of Realty—Order—Review.</p> <p>2. In the absence of any direet provision for setting aside an order for an administrator’s sale of realty, Section 103, L. O. L., providing that the court may allow an answer or reply to be made after the time limited by the Code, and may within one year after notice thereof relieve a party from an order taken against him through his mistake, inadvertence, etc., orders made in the exereise of the court’s discretion are not reviewable except for abuse of discretion, and a refusal to vacate an order for an administrator’s sale of realty on the ground that it was made without actual notice to part of the petitioners was not an abuse of sueh discretion.</p> <p>Executors and Administrators — Sale of Realty — Order—Vacation-Answer.</p> <p>3. Under Section 59, L. O. I/., providing that defendants against whom publication has been ordered may, upon good cause shown, be allowed to defend within one year after judgment, parties seeking the vacation of an order for an administrator’s sale of realty and for permission to make objections and defenses thereto would be denied relief for failure to tender an answer with the petition.</p> <p>Executors and Administrators—Comity Court—Removal of Administrator—Discretion.</p> <p>4. County Courts are vested with a very large discretionary power over the conduct of executors and administrators.</p> <p>Executors and Administrators — Qualification — Surety of Former Administrator.</p> <p>5. The surety of a former administrator is not necessarily disqualified from acting as administrator de bonis non because of a potential interest which may thereafter appear, but to justify his removal something more should appear, as the court cannot presume that he will squander the estate or fail to properly administer it.</p> <p>Descent and Distribution—Executors and Administrators—Surcharging Administrator.</p> <p>6. Parties interested in an estate may surcharge an administrator’s final account if he fails to reduce its ehoses in action to possession, and, if he refuses to collect debts owing the estate and properly apply the proceeds, the heirs may themselves realize upon them in the interest of the estate.</p> <p>Executors and Administrators—Administrator’s Indebtedness—Liability of Sureties.</p> <p>7. If an administrator owes an estate, his debt will be reckoned as so much money on hand for which his sureties will be liable.</p>

From Douglas: Lawrence T. Harris, Judge. Department 2. Statement by Mr. Justice Burnett. This is a proceeding for the removal of E. L. Parrott, as administrator de bonis non of the estate of S. Marks & H. Wollenberg. From a judgment of the Circuit Court, affirming the County Court’s denial of such petition, petitioner appeals.

<p>Appeal and Elrror—Decisions Reviewable—Order Reinstating Cause.</p> <p>1. An order reinstating an action dismissed without prejudice, because the statute of limitations would bar the institution of another action for the same cause, is not final, and an appeal therefrom will be dismissed.</p>

<p>From Marion: William Galloway, Judge.</p> <p>In Banc. Statement by Mr. Justice Benson.</p> <p>This is a suit by W. H. Morgan, a creditor, against John-Ruble, Al. Walling, J. H. Brigham, S. B. Savage, John Walling, Tracy Walling, Harry F. Savage, C. J. Crandle, J. M. Spong, J. F. McKinley, W. F. Franklin and William Wilkins, to enforce the individual liability of stockholders in an insolvent corporation upon their unpaid subscriptions to capital stock. Tbe Lincoln Stove Company, having been duly incorporated with the defendants as stockholders, executed and delivered its promissory note to plaintiff, which was not paid at maturity, and plaintiff, in a proper proceeding, obtained a judgment against the corporation thereon in the sum of $213.25, with interest at 6 per cent, $65 as attorney fees, and costs at $14.70. An execution having been issued and returned nulla bona, this suit was begun.</p> <p>A second cause of suit is based upon an assigned claim of $613.33, upon an account stated in favor of the H. S. Gile Grocery Company. The insolvency of the corporation is admitted. The execution and delivery of the promissory note, the judgment thereon, and the unsatisfied execution are admitted. The assignment of the claim of the H. S. Gile Grocery Company is admitted.</p> <p>After some unimportant denials the defendants plead affirmatively that the organizers of the corporation made false and fraudulent representations to them, whereby they were induced to subscribe for the corporate stock. A trial being had, there was a decree dismissing plaintiff’s suit, from which he appeals.</p>

From Douglas: George F. Skipworth, Judge. Department 1. Statement by Mr. Justice Burnett. The Douglas Creditors’ Association, a corporation, sued the defendant, J. F. Hutchason, in a Justice’s Court on some assigned accounts against him. Defeated in that tribunal, the defendant appealed to the Circuit Court, where a like result befell him.

From Marion: William Galloway, Judge. In Banc. Statement by Mr. Justice McBride. Eva Palmerton instituted proceedings in the County Court to have S. T. Northcutt, her father, declared incompetent to manage his own property, and to have a guardian appointed for that purpose. After a trial there he was found incompetent, and E. M. Croisan was appointed his guardian. The father appealed to the Circuit Court, where the order was reversed.

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Chief Justice Moore. This is an action by G-. T. Treadgold against Frank E. Willard to recover money.

From Malheur: Dalton Biggs, Judge. In Banc. Statement by Mr. Justice Burnett. This is an action by the Norris Safe & Lock Company, a corporation, against J. R. Weaver and others, to enforce against alleged stockholders the payment of a balance due upon a judgment recovered by the plaintiff against their corporation.

From Lake: Bernard Daly, Judge. Department 1. Statement by Mr. Justice Burnett.

From Multnomah: Henry E. McGinn, Judge. This is an action by Seymour H. Bell against J. C. Fleming, in which plaintiff obtained a judgment and defendant appeals. Respondent moves to dismiss the appeal on the ground stated in the opinion of the court. Motion allowed and appeal dismissed.

From Sherman: David R. Parker, Judge. This is a suit in equity hy L. R. French against J. C. McKean, as sheriff of Sherman County, Oregon, George E. Quiggle, S. Schupbach, C. E. Johnson and W. L. Cooper, in which the plaintiff was successful in securing a decree, and the defendant W. L. Cooper appeals. At the trial on the merits, the plaintiff-respondent moves to dismiss the appeal on the ground set forth in the opinion of the court. In Banc.

From Marion: Percy R. Kelly, Judge. Department 2. Statement Per Curiam. This is an action by A. T. Moffitt against the City of Salem.

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by Jane Caples against W. L. Morgan to recover sundry monthly installments of rent alleged to be due upon a five-year lease of real property in Portland, the execution of which and possession thereunder being admitted. That anything is due is denied.

<p>From Hood Biver: William L. Bradshaw, Judge.</p> <p>In Banc. Statement by Mr. Justice Benson.</p> <p>This is a suit by F. E. Parker against tbe City of Hood Biver, a municipal corporation, E. H. Hartwig, as mayor of tbe City of Hood Biver, and H. B. Langille, as recorder of tbe City of Hood Biver, and Bobert Lewis, as marshal of tbe City of Hood Biver, to enjoin a sale of plaintiff’s property in tbe City of Hood Biver in payment of certain special assessments against tbe same for tbe improvement of State Street, upon which such property fronts. From a decree dismissing 'the suit, plaintiff appeals.</p>