Volume 82 — Oregon Reports

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by Everding & Farrell, a corporation, against John F. Toft, J. L. Hoffman and others. There was a judgment in favor of plaintiff against John F. Toft, and one against plaintiff in favor of J. L. Hoffman for his costs and disbursements. From that part of the judgment in favor of defendant Hoffman, plaintiff appeals. Respondent files motion to dismiss the appeal.

<p>Insane Persons — Service of Summons — 'Statute—Construction.</p> <p>1. Under Section 55, subdivision 4, L. O. L., providing that in the case of a person judicially declared to be of unsound mind and for whom a guardian has been appointed summons shall be served by delivering a copy, with a certified copy of the complaint, to such guardian and to the defendant personally, service only upon a defendant, who had been adjudged insane and for whom a guardian had been appointed, was not sufficient.</p> <p>[As to due process of law as applied to insane persons, see note in 43 Am. St. Rep. 531.]</p> <p>Pleading — Action to Vacate Judgment — Demurrer.</p> <p>2. In a suit to cancel a judgment and restrain execution against land of which plaintiff alleged he was the owner, if defendant desired a more detailed statement as to the derivation of plaintiff’s title to the land, he should have proceeded by motion, or in some other manner than by demurrer.</p> <p>Judgment — Action to Vacate — Grounds.—Fraud,</p> <p>3. Where a trial court had jurisdiction to render a judgment, in order to assail it, although irregular or voidable, it would be necessary to allege that there was fraud or unfairness in the obtainment thereof.</p> <p>Judgment — Action to Vacate — Nature—“Direct Attack.”</p> <p>4. A suit to cancel a judgment and to enjoin the enforcement thereof by execution against land of which plaintiff claims to be owner is a direct, and not a collateral, attack upon the original judgment.</p> <p>Execution — Injunction—Judgment Against Another.</p> <p>5. The owner of real property has the right to restrain the sale thereof under a judgment against a third party, for the payment of which the owner of such realty is not liable.</p>

<p>Appeal and Error — Time in Which to Serve Notice of Appeal — , Statute.</p> <p>1. Under Section 550, L. O. L., as amended by Laws of 1913, page 617, Section 1, requiring service of a notice of appeal within 60 days from the date of the judgment, and Section 541, declaring that service by mail is deemed complete on the first day after the date of deposit of the notice in the postoffiee that the mail leaves such postoffiee, a notice of appeal from a judgment rendered May 23, 1916, mailed on July 22d, excluding the day that judgment was rendered and including the last day, was not mailed until the sixty-first day, and was too late, and the appeal will be dismissed.</p>

<p>Mechanics’ Liens — Eight to Lien — Contract With Lessee — “Agent”— Statute.</p> <p>1. Under Section 7416, L. O. L., conditioning the right to a mechanic’s lien upon the labor and material being furnished at the instance of the owner or his agent, a lessee under a lease providing, as a part consideration thereof, that he should make permanent improvements which should revert to and beeome the property of the lessor, and who causes such improvements to be made, becomes the “agent” of the lessor.</p> <p>Mechanics’ Liens — Waiver—Knowledge—Provision in Original Contract.</p> <p>2. Where the owner and lessor made his lessee an agent to make improvements on the leased premises, a stipulation in the agent’s'contract that the owner and lessor should not be responsible for any bills contracted in the improvement was not binding upon a subcontractor, unless he assented or agreed to be bound thereby; and the subcontractor’s knowledge alone' of the original contractor’s waiver of his lien did not constitute a waiver of the subcontractor’s lien.</p> <p>Mechanics’ Liens — Persons Liable — Owner—Notice Denying Liability.</p> <p>3. Under Section 7419, L. O. L., providing that every building constructed on land with the knowledge of the owner shall be held to have been constructed at his instance and shall be subject to liens, unless within three days after knowledge of such construction he post a notice that he will not be responsible therefor, premises leased for a term and under which the lessee became the owner’s agent and contractor for its improvement were subject to the liens of subcontractors, notwithstanding the posting of such notice.</p> <p>Mechanics’ Liens — Improvements of Leased Premises — Owner’s Notice of Nonliability — Effect.</p> <p>4. Under such provision and Section 7416, L. O. L., giving a lien to every person performing labor upon or furnishing material used in the construction of any building at the instance of the owner or his agent, and making every contractor an agent for the owner, and Section 7417, imposing such lien upon the land if it belongs to the person who caused the improvements, the posting of notices by the owner and lessor that it would not be responsible for the payment for labor or materials furnished for improvements made by its lessee, as agent or contractor, would not affect the matter of the waiver of the subcontractors’ liens, or prevent a lien upon the improved building, or even inform them that the lessee, as contractor, had stipulated, that no lien should attach to the premises.</p> <p>Mechanics’ Liens — Plans and Specifications — Reference—Effect.</p> <p>5. Where a lessee, as the owner’s agent and contractor, employed an architect to prepare plans and specifications for the improvement of the leased premises, and in the heading on the first page the building was described as owned by the lessor, and on the first page of the specifications there was a provision inserted at the lessor’s request that he would not be responsible for any bills contracted in the improvement therein specified, and where the two pages of the specifications relating to subcontractor’s work were detached from the remainder and given to and signed by them without directing their attention to the provision that the owner and lessor should not be responsible, etc., the reference could serve only the purpose of furnishing the plans' and specifications for the work, under the rule that where reference is made in one document to another unattached document for a specific purpose only, such other document becomes a part of the former for such purpose only.</p> <p>Mechanics’ Liens — Original Contractors — Waiver — Subcontractors— Effect.</p> <p>6. In view of the statute giving a direct lien to persons furnishing labor and material in the alteration of a building, upon the estate-of the person causing the alteration to be made, as a privilege or right for their protection, based on the theory of having added to-the value of the estate with the consent of the owner, the fact that the original contractor has agreed with the owner to protect him against liens is not an agreement on the part of subcontractors that they will look exclusively to “the original contractor and not to the-property for their compensation, as in such ease there is no meeting of the minds of the contracting parties to that effect.</p> <p>Mechanics’ Liens — Subcontractors—Waiver.</p> <p>7. The agreement of subcontractors to accept a part of their compensation in the preferred stoek of the lessee, the owner’s agent and contractor, did not amount to a waiver of their right to a lien to-that extent, where the stock was never delivered or tendered as security or payment.</p> <p>[As' to waiver of mechanic’s lien by taking notes or other securities, see note in ál Am. St. Rep. 761.]</p>

<p>Schools and School Districts — Annexation of District — -Void Order Calling Election.</p> <p>1. An order calling an election on the question of whether a school district be annexed to a high school district is void for legal fraud and lack of jurisdiction if the district boundary board had no information concerning the number of legal voters in the school district except the statements found in the petition and remonstrance, and later developments reveal that the petition did not contain the names of the neeessary one third of the legal voters.</p> <p>Quo Warranto — Abolition of Bemedy — Substitution.</p> <p>2. By Section 363, L. O. L., the writ of quo warranto and information in the nature of quo warranto have been abolished, but only the forms have been done away with, as the remedies obtainable thereunder are still available by an action at law, prosecuted in the name of the state under the authority of Section 366.</p> <p>[As to contrast between election contest and quo warranto proceedings, see note in Ann. Cas. 1913C, 161.]</p> <p>Schools and School Districts — Consolidation—Legality—Burden of Proof.</p> <p>3. In a statutory action in the nature of quo warranto requiring a district boundary board to show by what authority they acted in consolidating a sehool district with a union high school district, plaintiffs alleging the annexation was illegal because the requisite number of voters did not sign the petition for an election on the question, defendants must allege all the facts neeessary to show that the sehool district was legally annexed; the burden of proof resting upon them to show that the two districts were legally consolidated.</p> <p>Schools and School Districts — Consolidation—Petition—Election— Statute.</p> <p>4. Under Section 4194, L. O. L., relative to elections to unite school districts for high school purposes, an election on the question of whether a school district be annexed to a union high sehool district was void, and the attempted annexation came to naught, unless the petition for the election from the sehool district was signed by not less than one third of the legal voters, the petition being jurisdictional and no petition at all unless in conformity with the statute.</p> <p>Evidence — Presumption—Doing of Prior Act.</p> <p>5. When the legality of a subsequent act depends upon the doing of a prior act, proof of the performance of the subsequent act may carry with it, until the contrary is shown, the presumption that the prior act was correctly done, the rule of presumption being not necessarily conclusive.</p> <p>Schools and School Districts — Consolidation—Attack hy Quo Warranto — Evidence Dehors the Record.</p> <p>6. In quo warranto against a district boundary board demanding that it show by what authority it ordered the consolidation of a school and a high school district, complainants claiming that the annexation of the school district was not legal because the petition for the election on the question was not signed by the requisite number of voters, complainants could offer evidence dehors the record that the petition was not signed by the requisite number, the petition and order for election not of themselves proving the sufficiency of the petition.</p>

<p>From Marion: William Galloway, Judge.</p> <p>This is a suit by Margaret St. Martin against William M. Hendershott, Libbie E. Hendershott and Napoleon Legault, in which the plaintiff obtained a decree and defendants appeal. Plaintiff now moves to dismiss the appeal.</p> <p>In Banc.</p>

<p>Prom Douglas: George P. Skipworth, Judge.</p> <p>This is a suit by E. L. Giles (substituted for Ida C. Giles), I. S. Ketch, W. H. Park, E. H. Lenox, Emma J. Lenox, Lucie Ingels, P. C. Flagler, O. C. Brown and A. J. Greddes against the City of Eosebnrg, Carl E. Wemberly, city recorder, T. J. Williams, city marshal, and Agnes M. Pitchford, city treasurer, of the City of Eoseburg, to enjoin the enforcement of part of a special assessment. There was a decree in favor of plaintiffs, from which the defendants appeal.</p> <p>Department 1.</p>

From Multnomah.: Bobert Gr. Morrow, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by J. M. Toomey against J. D. Casey and J. H. Hutchinson, and comes here on a second appeal, a judgment of the Circuit Court having been reversed by an opinion written by Mr. Justice Bean and reported in 72 Or. 290 (142 Pac. 621).

From Multnomah: George N. Davis, Judge. This is an action by the Yamhill Sanitary Public Market Company, a corporation, against Joseph Strowbridge and the Strowbridge Estate Company, a corporation, in which judgment was rendered in the lower court in favor of defendants, and plaintiff appeals. Respondents move to dismiss the appeal upon the ground stated in the opinion of the court.

<p>Time — Computation—Days—Statute.</p> <p>1. Under Section 531, L. O. L., providing that the time within which an act is to be done shall be computed by excluding the first day and including the last, ete., the filing of an initiative petition and proposed ordinance completed on November 4, 1916, to be aeted upon at the election of December 4, 1916, having been filed only 29 days before December 4, 1916, did not comply with an ordinance requiring-such petition to be filed 30 days before the election at which a proposed ordinance or amendment to the city charter is to be submitted or referred.</p> <p>[As to computation of time, see notes in 7 Am. Dec. 250/ 46 Am.. Rep. 410; 78 Am. St. Rep. 872.]</p>

From Multnomah: Lawrence T. Harris, Judge. Department No. 1. Statement by Mr. Chief Justice Moore. This is a suit by tbe Hancock Land Company, a corporation, against the City of Portland, a municipal corporation, to cancel an assessment of real property and to enjoin the sale of the premises alleged to have been benefited by a street improvement.

<p>Banks and Banking — National Bank Examiner — Official of Bank.</p> <p>1. A national bank examiner is not an agent or officer of a bank which he examines.</p> <p>Estoppel — Persons to Whom Estoppel is Available.</p> <p>2. A statement to a national bank examiner by a depositor in reply to a question by the examiner as to whether loans by the president of the bank were authorized furnishes no basis for an.estoppel in favor of the bank and against the depositor; the examiner not being an officer or agent of the bank.</p> <p>Banks and Banking — Liability of Bank for Acts of Officers.</p> <p>3. While a depositor in a national bank is presumed to know that the bank is without authority to lend Ms funds for his benefit as an individual, the president of a national bank, having made representations to an uneducated depositor that his deposit could be lent so as to be called within 30 days yet bring a fair rate of interest, cannot, the depositor understanding that the president was acting for the bank, make loans of the depositor’s funds without rendering the bank liable.</p> <p>[As to liability of banks for frauds of officers, see note in 39 Am. Uep. 760.]</p> <p>Trial — Instructions—Form of Instructions.</p> <p>4. An instruction submitting an issue to the jury need not follow the testimony of the witnesses if it accurately presents the situation.</p> <p>Trial — Instructions—Issues Presented.</p> <p>5. Where a depositor in a national bank sued for deposits which had been loaned by the president, contending that the president was acting for the bank, while the bank contended that the president was acting individually, and that the depositor was estopped to assert liability against it, an instruction on the powers of national banks is not necessary; for the fact that the depositor attempted to authorize the bank to perform an ultra vires act in lending his money did not authorize the president to appropriate the funds and excuse the bank from liability for his misappropriation.</p> <p>Trial — Instructions—Assumption of Facts.</p> <p>6. In an action against a national bank to recover deposits, the bank contended that the depositor consented to the act of the president in loaning his deposits, and that he was estopped to assert the liability of the bank. The court charged that an estoppel is that by which a person by his own act which he has committed precludes him from asserting the truth. Other portions of the charge clearly showed that the court did not assume that plaintiff’s testimony at trial was true, and that the statement on which the estoppel was based was untrue. Held, that the charge was not erroneous as assuming that plaintiff’s testimony at trial was true.</p> <p>Estoppel — Equitable Estoppel — Definition.</p> <p>7. An “estoppel” may be defined as where a man is concluded and forbidden to speak against his own act or deed, though it is to say the truth.</p> <p>Appeal and Error — Review—Instructions.</p> <p>8. Where the instructions correctly present the law, a judgment will not be reversed for mere technical inaccuracies.</p>

From Multnomah: John P. Kavanattgh, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by Florence A. Cormack against A. J. Cormack, Thomas C. Ordemann and the City of Portland, substituted in this court for Thomas C. Ordemann, to determine an adverse claim to real property.

<p>•Constitutional Law — Police Power.</p> <p>1. When an owner devotes his property to a use in which the pub-lie has an interest, he must submit to be regulated and controlled by the public for the common good.</p> <p>Public Service Commissions — Regulation of Rates.</p> <p>2. The regulation of rates for the purpose of promoting the public health, comfort, safety and welfare is an exercise of the police power •of the sovereign.</p> <p>[As to validity of regulation by public service commission fixing minimum rates to be charged by public service corporation, see note in Ann. Cas. 1916A, 933.]</p> <p>•Constitutional Law) — Impairment of Contracts — Telephone Rates.</p> <p>3. If a telephone company’s franchise from a city, limiting rates to be charged, is deemed a contract, the mere fact that it was made prior to the enactment of the Public Utility Act (Laws 1911, p. 483), •and before the state attempted to regulate such rates, does not debar the state from increasing the rates as fixed in the franchise, because when the state exercises its police power, it does not work any impairment of obligation of the contract; the possibility of the exercise •of such power being an implied term of the contract.</p> <p>■Constitutional Law — Rate-fixing Power — Delegation to Municipality.</p> <p>4. Since the right to regulate rates is an inherent element of sovereignty, such right can be delegated to a municipality only by clear ■and express terms, and all doubts must be resolved against the municipality.</p> <p>Municipal Corporations — Legislative Control — Home Rule Charter.</p> <p>5. Article XI, Section 2, of the Constitution, providing that the legal voters of every eity and town are granted power to enact and amend their municipal charter subject to the Constitution and criminal laws of the State of Oregon, and forbidding the legislative assembly to amend or repeal any charter for any municipality, etc., does not extend the authority of such municipalities over subjects not properly municipal and germane to the purposes for which municipal corporations are formed.</p> <p>Municipal Corporations — Regulation of Rates.</p> <p>6. The right to regulate rates is a matter of general concern, and ■does not pertain solely to municipal affairs.</p> <p>Telegraphs, and Telephones — Regulation by Municipality — Regulation by State.</p> <p>7. Where a municipality under its home rule charter, adopted under Article XI, Section 2, of the Constitution, granted a telephone franchise limiting rates to be charged, and later the Public Utility Act (Laws 1911, p. 483), was enacted, the Public Service Commission had authority thereunder to authorize the company to charge higher rates.</p> <p>Telegraphs and Telephones — Regulation—Public Service Commission.</p> <p>8. The failure of the Public Service Commission to file a statement of valuation mentioned in Section 10 of the Public Utility Act (Laws 1911, p. 483), does not affect the validity of an order, allowing a telephone company to charge higher rates than those stated in its franchise, since the right to make the order does not depend upon filing the statement of valuation, and, in any event, under direct provision of Section 75 of the act, technical omissions are immaterial.</p>

From Multnomah: Calvin U. Gantenbein, Judge. Department No. 2. Statement by Mr. Chief Justice Moore. This is an action by Mrs. N. Y. Sorenson, as the assignee of her husband, George Sorenson, a real estate broker, against F. A. Kribs, to recover damages.

<p>Statutes — Construction—Intention of Legislators.</p> <p>1. Where the language of the lawmakers is plain and their intent clear, such meaning must be given effect.</p> <p>Electricity — Regulation—Construction of Statutes.</p> <p>2. The title of the employers’ liability law (Laws 1911, p. 16) indicated that the act provided for the protection and safety of persons engaged in construction or other work upon buildings and other structures, or upon or about electrical wires, conductors or other electrical appliances carrying a dangerous current of electricity, or about any machinery or in any dangerous occupation, and defining the liability of employers for acts of negligence, or for the injury or death of their employees. Section 1 provided that all persons whatsoever engaged in the manufacture, transmission and use of electricity should see that all material was carefully selected, inspected and tested, and that in the transmission and use of electricity of a dangerous voltage full and complete insulation should be provided at all points where the public or the employees were liable to come in contact with the wires, and that all persons having charge of or responsible for any work involving a risk or danger to the employees or the public should use every device, ¿are and precaution which it is practicable to use for the protection of life and limb. Section 4 made any person within the provisions of the act. liable for any loss of life by violation thereof. Seld, that the act was intended to safeguard members of the public from coming in contact with wires carrying a dangerous current, and was not limited to the protection of the immediate employees of electric companies.</p> <p>Statutes. — V alidity — Title.</p> <p>3. The provision of the law protecting the general public is not foreign to nor disconnected with the subject embraced in the title. The title was sufficient to direct the voters’ attention to the measure to be acted upon, was not inconsistent with the general object and purpose of the initiative and referendum amendments to the constitution, and the statute is not invalid under Article IV, Section 20, of the Constitution.</p> <p>Statutes — V alidity — Title.</p> <p>4. To render a portion of a statute invalid because its provisions are not embraced within the title, as required by Article IV, Section 20, of the Constitution, the provisions must be entirely disconnected with the subject, wholly incongruous, and consist of matter of which the title gives no notice, so that the adoption of the measure by means of the title would be fraudulent.</p> <p>Constitutional Law — Validity of Statute — Presumption.</p> <p>5. The presumption is always in favor of the validity of the statute, and its repugnancy to the Constitution must clearly appear.</p> <p>Electricity — Actions for Injury — Sufficiency of Evidence — Ownership of Wires.</p> <p>6. In an action for the death of an employee of a patron of an electric power company, when he attempted to turn off the switch in his employer’s pumping plant, evidence held sufficient to take to the jury the question whether the power company owned and controlled the wires and switch.</p> <p>Electricity — Degree of Care Required.</p> <p>7. The care demanded of electric companies must be commensurate with the danger, and where their wires are carrying a dangerous current, the law imposes upon them the utmost degree of care in the construction, inspection and repair.</p> <p>[As to duties and liabilities of electrical companies, see note in 100 Am. St. Rep. 515.]</p> <p>Electricity — Liability of Company — Ownership of Switch.</p> <p>8. Where an electric power company furnishes the current for operating a pump owned by an individual, and owns the wires leading to the switch, which was installed by the company’s predecessors, the company can exercise control over the switeh, even if it does not own it, and is liable under the employers’ liability law if the switch is defective.</p> <p>Electricity — Liability of Companies — Installation of Apparatus.</p> <p>9. Where an electrical company undertakes to render service to a customer, and runs its wires into a building, and installs its apparatus therein, it must exercise a degree of care commensurate with the risk in protecting and insulating its wires and installing the apparatus.</p>

From Union: John W. Knowles, Judge. In Bane. Statement Per Curiam. This is an action by Turner Oliver against Susan Crane, Lonzo Crane and Christopher Crane. Testimony on behalf of the defendants in relation to the contract involved in the first cause of action was given as follows: “He was employed to fight the company. I asked him how much percentage he wanted, and he said $10 on the $100 for the first $500, and after that $25 — what he got.

<p>•Mandamus — Subjects of Relief — Change of Venue.</p> <p>1. Section 2432, L. O. L., providing that the justice of the peace may change the place of trial when it appears from the affidavit of a party that the justice is so prejudiced against the party making the motion that he cannot expeet an impartial trial before such justice, does not require a justice of the peace to grant a change of venue upon the mere assertion of the party that the justice is prejudiced, and therefore an alternative writ of mandamus to compel a justice of the peace to grant a change of venue, which contains no showing as to prejudice, except the conclusion of the party applying for the change, must be quashed under Section 613-, L. O. L., authorizing mandamus to require action by an inferior court in the discharge of its functions, but not to control judicial discretion.</p> <p>[As to prohibition as remedy to review determination of motion for change of venue, Bee note in Ann. Cas. 1913D, 696.]</p>

<p>Billa and. Notes — Non-negotiable Instruments — What Constitute.</p> <p>1. A promissory note, by which the maker agreed to pay a sum certain for value received on a date certain, with interest, which recited that it was given for the purchase of a threshing machine, to which title was reserved in the payee of the note, with right to declare forfeiture at any time for nonpayment, even before the due date, is a non-negotiable instrument.</p> <p>[For case and notes in point, see 126 Am. St, Rep. 185; 14 Ann, Cas. 1226.]</p> <p>Bills and Notes — Non-negotiable Instrument — Purchasers in Good Faith — Rights.</p> <p>2. The purchaser of a non-negotiable instrument takes it subject to all the equities between the original parties, so that, where a note was given for the purchase price of a thresher under warranty and the machine was not as warranted, it was unnecessary to show that the payee was the agent of the assignee in making the sale.</p>

<p>From Malheur: Dalton Biggs, Judge.</p> <p>In Banc. Statement by Mb. Chief Justice Moobe.</p> <p>This is an action by John Hodges against S. E. Blaylock and Mrs. S. E. Blaylock, his wife, and is founded upon a promissory note, of which the following is a copy:</p> <p>“$638.75. Juntura, Oregon, June 25, 1915.</p> <p>“On demand after date, without grace, we promise to pay to the order of John Hodges, at Juntura, Oregon, six hundred thirty-eight and 75/100 dollars in gold coin of the United States of America of the present standard value, with interest thereon in like gold coin at the rate of six per cent per annum from date until paid, for value received. Interest to be paid annually, and if not so paid the whole sum of both principal and interest to become immediately due and collectible, at the option of the holder of this note, and in case suit or action is instituted to collect this note, or any portion thereof, we promise and agree to pay. an additional sum, in like gold coin, as the court may adjudge reasonable, for attorney’s fees to be allowed in said suit or action.</p> <p>“S. E. Blaylock.</p> <p>“Mes. S. E. Blaylock.”</p> <p>The complaint is in the usual form, and alleges that the plaintiff is the owner and holder of the note; that although payment thereof had been demanded from the defendants, they had not paid any part of it; and. that $75 is a reasonable sum as attorney’s fees.</p> <p>■ The answer admits the execution of the note, that plaintiff is the owner and holder thereof, and that no payment has been made thereon, but denies that prior to the commencement of this action any demand for the payment was made, or that $75 or any other sum would be reasonable as attorney’s fees. For a further defense it is alleged the defendants executed the note; that no demand for the payment thereof had been made upon either of the defendants who have at all times, been ready, willing and able to pay the sum so due upon reasonable demand therefor, and that the only demand that has been made was the commencement of' this action; that the defendants tender to the clerk of the court for plaintiff $638.75, with interest at 6 per cent from June 25, 1915, in full payment to December 28, 1915, when the answer was filed.</p> <p>The reply put in issue the allegations of new matter-in the answer, and the cause, having been tried, resulted in a verdict and judgment for the amount due on the note, $3450 as attorney’s fees, and the costs and. disbursements of the action, and the defendants appeal.</p>

<p>Railroads — Operation—Fires—Admissibility of Evidence.</p> <p>1. In an action for damages caused by fire alleged to have been set by defendant’s locomotive, the rule justifying the admission of evidence of other fires set by defendant’s locomotives will not render admissible testimony that twelve days after the fire a witness saw burned-over areas within the right of way; there being no testimony of the passing of engines at or immediately prior to the ignition of a fire.</p> <p>Railroads — Op eration — Fires—Instruction.</p> <p>2. In an action for damages caused by fire alleged to have been set by defendant’s locomotive, where the evidence did not suggest a deficiency in number of men, and did not bear on the incompetency of mechanics, machinists, fire patrol or laborers, an instruction withdrawing from the jury the consideration of allegations that defendant failed to employ competent or careful mechanics or machinists to repair its engines or to use careful or sufficient fire patrols, section-men or laborers to protect the right of way and adjacent land from fires, was properly given.</p> <p>Trial — Operation of Railroads — Fires—Instructions.</p> <p>3. In an action for damages caused by fire alleged to have been set by defendant’s locomotive, an instruction complained of, taken with another given instruction, held to put the question of care required of defendant in procuring and utilizing appliances to prevent the escape of fire from its locomotives fairly before the jury and to enjoin the proper degree of care upon the defendant.</p> <p>Railroads — Operation—Fires—Instruction.</p> <p>4. As modern science and ingenuity have not yet reached a point of perfection or state where it is possible to propel steam locomotives in such manner as to absolutely prevent the escape of sparks of fire, the law does not require of a railroad company more than sueh reasonable care and diligence as the state of science will admit, nor make it liable for fires caused by the escape of ordinary and usual quantities of sparks while the engine is operated in the ordinary course of business by competent employees.</p> <p>Railroads — Operation—Fires—Negligence.</p> <p>5. In an aetion for damages caused by fire alleged to have been set by defendant’s locomotive, although negligence may be inferred from circumstantial evidence, .in order to establish negligence plaintiff must prove by a preponderance of evidence that the fire was communicated by sparks from defendant’s locomotive, excluding every other theory as to the cause or origin of such fire.</p> <p>Trial — Degree of Proof — Instructions.</p> <p>6. Under Section 688, L. O. L., providing that the law does not require a degree of proof beyond moral certainty or that degree of proof which produces conviction in an unprejudiced mind, and Section 868, subdivision 5, making it the duty of the court to instruct that in civil cases the affirmative of the issue shall be proved, and the finding on contradictory evidence shall be according to the preponderance, in an action for damages for fire alleged to have been caused by defendant’s locomotive, an instruction that the law does not require absolute proof or absolute certainty and is satisfied when a jury of unprejudiced minds, after hearing the testimony, have an abiding conviction of the truth of the claim, and that it is incumbent upon plaintiff to prove the same by a preponderance of competent evidence, was proper.</p> <p>[As to presumption of negligence arising from communication of fire by railroad engine, see note in Ann. Cas. 1913E, 971.]</p>

<p>Waters and Watercourses — Appropriation for Irrigation — Desert Land Act.</p> <p>1. Under the Desert Land Act, Act Cong. March 3, 1877, c. 107 (19 Stat. 377, U. S. Comp. Stats. 1901, p. 1548), which provides that all surplus water over and above the actual appropriation and use for reclamation of desert land under the act, “together with the water of all lakes, rivers and other sources of water supply upon the publie lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation,” etc., subject to existing rights, a defendant, whose title was derived from patent from the United States government by virtue of a homestead entry, and who had made no appropriation of water from a stream upon whieh his land had bordered since 1877, could not, by reason of the mere abuttal upon the stream, defeat or diminish a prior appropriation made under the aet.</p> <p>Waters and Watercourses — Appropriation for Irrigation — Evidence— Sufficiency.</p> <p>2. In a proceeding to determine riparian rights, evidence held to support a finding that a defendant had never, by ditehes or otherwise, used or appropriated water for irrigation purposes from an abutting stream, except seepage water escaping from another irrigation system.</p> <p>[As to what constitutes appropriation of water, see note in 60 Am. St. Rep. 799.]</p> <p>Waters and Watercourses — Appropriation for Irrigation — Right t» Use of Waste Water.</p> <p>3. It being the duty of an appropriator of water for irrigation to use ordinary methods to prevent waste, while a temporary use may be made of seepage water, allowed to escape by excessive use of water, by anyone who may capture it, no permanent right can be acquired to compel the continuance of the discharge or loss.</p> <p>Waters and Watercourses — Appropriation for Irrigation Proceedings —Pleading—Misjoinder of Parties Plaintiff.</p> <p>4. Under Section 393, I». O. L., providing that “all persons having an interest in the subject of a suit, and in obtaining the relief demanded, may be joined as plaintiffs, except as * * otherwise provided”; and that “any person may be made a defendant who has or claims an interest * * adverse to the plaintiff, or who is a necessary party to a complete determination * * of the questions involved,” in a proceeding to determine riparian rights to water for irrigation purposes, the thing in controversy being the whole mobile flowage of the stream, and no adequate determination being possible without the presence of all interested in the entire flowage, the joinder of a plaintiff who claimed riparian rights on the stream was proper.</p>

<p>Indictment and Information — Homicide—Included Offenses.</p> <p>1. The general rule is that an indictment for murder in the first degree necessarily involves all other grades of homicide which the ■evidence tends to establish.</p> <p>[As to indictment or information for homicide, see note in 3 Am. St. Rep. 279.]</p> <p>Abortion — Elements.</p> <p>2. Procuring an unlawful abortion upon any woman always involves an assault in law, even when it is done with her consent and connivance, because no one can consent to an unlawful act.</p> <p>Homicide — Statute—Abortion.</p> <p>3. The Oregon statute, mating homicide from unlawful abortion manslaughter, has not created a new crime, but merely reduced the grade of the offense at common law by changing the punishment from death to imprisonment in the penitentiary.</p> <p>Homicide — Indictment—Abortion.</p> <p>4. An indictment for murder in the first degree is sufficient to sustain a conviction for homieide, committed in an attempt to procure an abortion.</p> <p>Homicide — Indictment—Unknown Means.</p> <p>5. An indictment for murder by means unknown to the grand jury is good.</p> <p>Homicide — Indictment—Proof and Variance.</p> <p>6. An indictment for murder by means unknown to the grand jury will sustain conviction in a case where accused was conclusively proved to have either murdered a girl outright or killed her in an attempt to procure an abortion.</p> <p>Homicide — Harmless Error.</p> <p>7. Where it appeared that accused either killed a girl outright or in an attempt to procure an abortion, but there was no evidence that an operation was necessary to preserve the life of the mother or child, any error in failing to point out the statutory exceptions or justification for such an operation was harmless.</p> <p>Homicide — Evidence.</p> <p>8. Evidence of the identity of deceased, whose remains were found: burned in a barn, of previous preparation by accused for abortion, and of footprints of accused and the horse he was riding, etc., held to sustain a conviction for manslaughter by direct killing or producing an abortion on deceased.</p> <p>Criminal Law — Harmless Error.</p> <p>9. Admission of testimony of a girl friend of deceased that she (deceased) had told her that she would stay home because accused was coming to see her that evening was not prejudicial, where without objection there remained in the record, upon answer to cross-examination, a statement of a state’s witness that deceased had told some girls that she had received a letter from accused, and could not go out with them because accused was coming to see her that evening.</p> <p>Homicide — Evidence—Declarations of Deceased.</p> <p>10. Declarations of deceased, made in a perfectly natural manner, on the evening of the homicide, that she was about to meet accused were admissible to show that what she intended to do was probably done, and did not violate Section 705 or Section 727, subdivision 4,. L. O. L., as to declarations, or any other Code section.</p> <p>Criminal Law — Evidence—Competency.</p> <p>11. If evidence is competent for one purpose, it cannot be rejected' merely because it is not competent for another purpose, although an instruction, limiting its effect, is proper.</p> <p>Criminal Law — Evidence—Declarations of Third Persons.</p> <p>12. Evidence of declaration of third person, tending to show he committed the homicide, is inadmissible.</p> <p>FROM DISSENTING OPINION.</p> <p>Criminal Law — Evidence—Real Evidence.</p> <p>13. The admission in evidence of material objects or allowing inspection of the same, whether offered in evidence or not is within the discretion of the court.</p> <p>Criminal Law — Evidence.</p> <p>14. The refusal six months after the homicide to allow the jury to. inspect the feet of a horse upon whose tracks the prosecution relied was not an abuse of the court’s discretion as to admitting in evidence: material objects or allowing inspection of the same.</p>

<p>Appeal and Error — Statute Relating to Time of Taking Appeal — •'When Appeal will be Dismissed.</p> <p>1. Under Section 291, L. O. L., providing that upon a jury trial, judgment in conformity with the verdict shall be entered by the cleric on the day the verdict is rendered, Section 548, as amended by Laws of 1911, page 195, providing that a motion for a new trial shall not stay the six months’ time formerly limited in which to take an appeal until the motion was determined, and that the appeal to be effectual must be taken within six months from the entry of judgment, and Section 559, as amended by Laws of 1913-, page 617, Section 1, subdivision 5, requiring an appeal to the Supreme Court to be taken within 60 days from the entry of the judgment appealed from, an appeal to the Supreme Court must be taken within 69 days from the original entry of judgment, when a motion for new trial is not granted, and otherwise the appeal will be dismissed.</p>

<p>Carriers — Delay in Transporting Livestock — Evidence.</p> <p>1. Evidence in an action for delay in transporting livestock, held to sustain a finding that the cattle were ready to be loaded, in accordance with an arrangement with the carrier, at the time of the departure of the train. •</p> <p>Carriers — Shipping of Livestock — Delivery to Carrier.</p> <p>2. A shipper and the carrier may make such stipulations upon the matter of delivery to the carrier as they see fit, and when so made they are to govern.</p> <p>Carriers — Shipping of Livestock — Notice of Delivery to Carrier.</p> <p>3. Where the station agent and conductor of a common carrier were informed the day before an intended shipment that the cattle were to be put into the pens for shipment according to custom, no further formal notice was necessary.</p> <p>Carriers — Shipping of Livestock — Acceptance of Shipment.</p> <p>4. Where, in accordance with a recognized custom, a shipper notified the railroad company that he intended to ship a certain number of cattle next day, and had them ready to be loaded upon the arrival of the train, such acts, known to the carrier and not objected to, constituted a delivery and an acceptance of the shipment; no written receipt or bill of lading being necessary.</p> <p>Carriers — Shipping of Livestock — Liability.</p> <p>5. The liability as common carrier begins with the actual delivery of the goods for transportation, and not merely with the formal execution of a receipt or .bill of lading.</p> <p>Carriers — Shipping of Livestock — Delay—Evidence.</p> <p>6. In an action for damages for delay in transporting a shipment of livestock, evidence as to its market value at destination and of shrinkage per head held admissible; the value at the point of shipment and ■at destination being eoneedealy the same except for the shrinkage.</p> <p>Carriers — Carriage of Livestock — Delay—Damages.</p> <p>7. In an action for damages through delay in transporting a shipment of livestock, an instruction that the measure of damage would be the depreciation in the value of the animals caused by the negligent ■delay held proper.</p> <p>Carriers — Delay in Shipment — Actions—Parties.</p> <p>8. Where the agent of a common carrier is joined aa defendant in a, suit for damages for delay in a shipment of livestock, but no cause ■of action is stated against him, and instructions are given ae though tie carrier were the sole defendant, his name should be stricken from the judgment.</p> <p>[As to liability of carriers of livestock for loss or injury, see note in 130 Am. St. Rep. 432.]</p>

<p>Evidence — Parol Evidence — Failure of Consideration — Conditional Delivery.</p> <p>1. The rule that parol evidence cannot be introduced to contradict or vary the terms of a ■written instrument excludes all evidence between the maker and payee of the note that the liability of the former should be conditional, unless the condition affects the consideration, so that as a result of its failure there is a total or partial failure of consideration.</p> <p>Evidence — Parol Evidence — Failure of Consideration — Advances of Money.</p> <p>2. Where one of several defendants jointly indicted for a crime, who had been acquitted, advanced to another, who had been convicted, money to enable the latter to prosecute his appeal, taking a note therefor, parol evidence is not admissible to show an agreement that the makers should be liable on the note only in ease the conviction was reversed, sinee that condition did not affect the consideration for the note, and, if considered as a collateral contract, was void for want of consideration.</p> <p>[As to parol evidence of conditions in notes and bills, see note in 128 Am. St. Rep. 609.]</p>

<p>Criminal Law — Justices of the Peace — Jurisdiction of Subject Matter cannot be Waived.</p> <p>1. On appeal from a conviction in a Justice’s Court, the only jurisdiction acquired by the Circuit Court is simply that of an appellate tribunal, and once a question of jurisdiction presents itself in any stage of a proceeding, and it is discovered that the court has no jurisdiction of the subject matter, it is the duty of the court to refuse to proceed further, for jurisdiction over the subject matter cannot be waived.</p> <p>[As to power of Superior Court with respect to justice’s judgment where transcript has been filed in that court, see note in Ann. Cas. 1914A, 415.]</p> <p>Criminal Law — Indictment and Information — Sufficiency of Statement —Statutes.</p> <p>2. Where the facts stated in the complaint show that the defendant has done something that the law prohibits, such pleading is sufficient under the statute, and any objection to the information is waived by failure to specifically demur, on the ground that it does not set out the offense with the particularity required by Title XVIII, Chapter 7, of Civ. Code, except as to the jurisdiction of the court or that the complaint does not state facts sufficient to constitute a crime.</p> <p>Pleading — Special Demurrer — Statutes.</p> <p>3. Special demurrers are now abolished; therefore the statute contemplates but one demurrer to a pleading, and any objections not set forth therein are waived, unless they go to the jurisdiction of the court or to the point that the facts stated do not constitute a crime: Sections 1491,1499, L. O. L.</p>

<p>Gifts — Evidence—Parol Gift of Land.</p> <p>1. Evidence in a suit to quiet title held sufficient to support a finding that plaintiff’s father made a parol gift of the land in question to his daughter during his lifetime.</p> <p>[As to conveyances which must be regarded as gifts, see note in 65 Am. St. Eep. 798.]</p> <p>Gifts — Parol Gift of Land — Statutes.</p> <p>3. Under Section 804, L. O. L., providing that interests in land cannot be created or transferred except by operation of law, or by an instrument in writing, a mere parol gift of realty will not of itself pass title.</p> <p>Adverse Possession — Requisites—Effect.</p> <p>3. Continuous adverse possession of land for ten years under a claim of title is sufficient to pass to the possessor the fee-simple estate.</p> <p>Adverse Possession — Requisites—Parol Gift.</p> <p>4. A parol gift of land is sufficient to inaugurate adverse possession.</p> <p>Adverse Possession — Effect—Extent.</p> <p>5. Where plaintiffs elaim by adverse possession inaugurated by a parol gift of land, they may obtain title to the portion actually inclosed ■only.</p>

<p>Municipal Corporations — Streets—Injuries to Persons upon — Speed of Motor Vehicles.</p> <p>1. Under Motor Vehicle Law (Laws 1911, pp. 266, 267), Section 2, subdivisions 11 and 17, declaring that in passing railroad or street-cars motor vehicles shall be operated upon that side of the street or railroad car with due care and caution for the safety of passengers alighting or descending, but should there be on the left side of the street or railroad car a clear space, motor vehicles shall be permitted to so increase their speed for the necessary distance to negotiate a safe clearance between the street or railroad car and the vehicle desiring to pass, which such speed shall not be deemed excessive, having due regard to the speed of the railroad or street-ear, and that the speed on all streets and highways shall be a reasonable speed up to and not exceeding 25 miles an hour, but any speed beyond that shall be unreasonable, it is not negligent for a motorist in passing a street-car where there is a clearance to drive his car at any necessary speed up to 25 miles an hour.</p> <p>Municipal Corporations — Injuries to Persons on Streets — Negligence.</p> <p>2. A motorist for the purpose of passing a street-car increased the speed of his vehicle so that he was proceeding at a speed estimated as high as 18 miles an hour. The street was clear, and he could not see a young child standing behind a telegraph pole. Just as he' was abreast the child it ran out and was struck by the rear fender, the motorist turning his vehicle into the car to escape an accident. Held, that the motorist was not liable for the resultant death of the child; for he was not driving at an excessive speed, but was lawfully proceeding in accordance with the express permission given by statute.</p> <p>[As to law of the road as to automobile and street-ear traveling in the same direction, see note in Ann. Gas. 1913E, 1121.]</p>

From Marion: Percy R. Kelly, Judge. Department 2. Statement by Mr. Justice Harris. This is an action by A. J. Anderson, as trustee in bankruptcy of the estate of Roy H. Wassom and M. A. McLaughlin, partners, doing business under the firm name and style of the Salem Lumber Company, and as trustee of the estate of Roy H. Wassom and M. A. McLaughlin individually, against the Stayton State Bank.

From Yamhill: Harry H. Belt, Judge. Department 1. Statement by Mr. Justice Benson. William Branson and Anna Booth were jointly indicted for murder in the second degree charged to have been committed in the killing of William Booth on October 8, 1915. Separate trials having been demanded by the defendants, the defendant Branson was placed upon trial, and from a verdict of guilty as charged and a judgment thereon he prosecutes this appeal.

From Morrow: Gilbert W. Phelps, Judge. Department 1. Statement by Mr. Justice McBride. This is an action by the Pacific Company, a corporation, against J. E. Cronan to recover commission for services in procuring a purchaser for bank stock.

From Yamhill: Harry H. Belt, Judge. The defendant, Anna Booth, was indicted, tried and convicted of murder in the second degree, and from the judgment and sentence imposed she appeals. Reversed and cause remanded for a new trial. Department 1.

Prom Crook: T. E. J. Duffy, Judge. In Banc. Statement by Mr. Justice Benson. This is an action by H. A. Gosney against Andrew McAlister and Jane McAlister, his wife, upon an award of a board of arbitration.

<p>Criminal Law — Appeal—Record—Transmission.</p> <p>1. The time fixed by law for the filing of a transcript on appeal cannot be extended by stipulation of the parties without an order of court.</p> <p>Criminal Law — Appeal—Record—Transmission,</p> <p>2. After the expiration of the statutory time for filing copies of the transcript in a criminal case, neither the trial court nor appellate court can extend the time by order mime pro time; the right of appeal being purely statutory.</p>

From Coos: John S. Coke, Judge. Department 1. Statement by Mr. Justice Burnett. This is an action in which the plaintiff, Thomas J. Clark, essays to charge Coos County under Chapter 3 of the General Laws of Oregon for 1911, generally known as the Employers’ Liability Act.

From Washington: George E. Bagley, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by the Hillsboro National Bank, a corporation, against Natalio Garbarino and Eosa Garbarino, to set aside a voluntary conveyance made by a debtor husband to his wife.

From Umatilla: Gilbert W. Phelps, Judge. In Bane. Statement by Mr. Chief Justice Moore. This is a suit by Mrs. Georgie A. Skinner against Leroy Furnas and Grace M., Ms wife, J. H. Beid and Genevieve, Ms wife, and tbe Umatilla Project Orchard Lands Company, a corporation, to enforce tbe specific performance of an oral agreement to convey real property.

Original proceedings in Supreme Court. Department 2. Statement by Mb. Chief Justice Mooee.

<p>Bailment — Elements.</p> <p>1. An order for advertising material, consisting of cuts and font ■of type to be held at the expiration of the contract subject to the order of the addressee, on acceptance, consummated a contract by which the possession of specific articles of personalty was to be transferred temporarily from the owner to others to accomplish a special purpose, and hence the agreement was a bailment.</p> <p>Bailment — Elements—Delivery.</p> <p>2. Delivery is the essential element of a bailment, which trust relation begins when the possession of personalty is transferred to the bailee.</p> <p>Bailment — liabilities of Parties.</p> <p>3. Under an order by defendants to “ship us at our expense” advertising material to be held subject to plaintiff’s order at the termination of the contract, where the plaintiff delivered the advertising matter for shipment to a carrier selected by it 'before ■defendants countermanded their order, the defendants are liable for the sum they agreed to pay for use of the advertising matter.</p> <p>Bailment — Contract—Executed Contract — Damages for Breach.</p> <p>4. Where defendant ordered advertising matter from plaintiff, which was to be used for one year and then held subject to plaintiff’s ■orders, the contract became executed when the goods were delivered to a carrier consigned to defendant, the same as in the ease of a sale, and defendant’s refusal thereafter to accept the goods did not render the contract executory so as to prevent plaintiff from recovering the •entire contract price and to limit his recovery to damages merely.</p> <p>[As to difference between a sale and a bailment, see notes in 10 Am. Dec. 490; 2 Am. St. Rep. 711; 94 Am. St. Bep. 216.]</p>

Original proceeding in Supreme Court. In Banc. Statement by Mb. Justice McBride. This is an original proceeding in mandamus by School District No. 24 of Marion County, against W. M. Smith, county school superintendent to compel th.e defendant to audit and allow certain items claimed by petitioner as part of the cost of educating nonresident high school pupils. The statute to be construed is Chapter 235, page 330, Laws of 1915.

From Wasco: William L. Bradshaw, Judge. This is an action by Sam Hewey against C. S. Andrews and Lillie M. Andrews and others. Judgment was rendered in favor of plaintiff against C. S. and Lillie M. Andrews after which it was modified to run against C. S. Andrews only, and he appealed. Plaintiff-respondent moves to dismiss the appeal. In Banc.

<p>Wills — Liability, of Legatees — Debt of Decedent — What Law Governs.</p> <p>1. Where a note was payable in Colorado and the will of the maker, whereby defendants became residuary legatees, was probated in that state, the payee’s right of action, if any, to subject property in the hands of the legatees to the payment of the note arose in Colorado, and was governed by its law.</p> <p>Wills — Liability of Legatee — Common Law.</p> <p>2. At common law, no action can be maintained against a legatee upon a contract made by the decedent, as the legatee takes the property only after it has passed from the administrator or executor, in whose hands alone it is liable for the debts of the decedent.</p> <p>Descent and Distribution — Wills—Liability of Heir.</p> <p>3. The liability of an heir and devisee is confined to the real estate, with which the administrator or exeeutor has nothing to do.</p> <p>Evidence — Judicial Notice — Statutes of Another State.</p> <p>4. The Supreme Court will not take judicial notice of the statutes of another state.</p> <p>[As to admissibility of printed copy of statutes to prove law of another jurisdiction, see note in Ann. Cas. 1916D, 853.]</p> <p>Evidence — Presumption—Statutes of Another State.</p> <p>5. Where the statutes of another state are not pleaded, it will be presumed that upon the questions involved the common law prevails.</p> <p>Wills — Liability of Legatee — Action on Note — Complaint.</p> <p>6. Under Section 488, L. O. L., making legatees liable to a suit in equity by a creditor of the testator to recover the value of any legacy received by them, and providing plaintiff shall not recover unless he shows that no assets were delivered by the exeeutor or administrator to the next of kin, that the value of such assets has been recovered by some other creditor, or that such assets are not sufficient to satisfy his demand, the complaint, in an action on a note against the legatees under the will of the maker, silent as to the statutory prerequisites, was demurrable.</p>

From Multnomah: Calvin H. Gantenbein, Judge. This is a condemnation proceeding by the City of Portland against Charles Schmid and others. From a judgment in favor of defendants plaintiff appeals. Respondents move to dismiss appeal. Motion allowed and appeal dismissed. Department 1.

From Umatilla: Gilbert W. Phelps, Judge. In Banc. Statement by Mr. Justice Beau. This is a suit by N. K. Bott against Harriet Campbell, Charles Argyle Campbell, G-race Emaline Campbell, Harriet Fitzgerald Campbell and Annie M. Campbell, in which suit the plaintiff seeks to reform a written contract. From a decree in his favor the defendants appeal.

<p>Municipal Corporations — County Roads — Control—Statute.</p> <p>1. The control of county roads is primarily in the legislative power of the state, and until in plain terms the state has given control thereof to any municipality, the latter cannot assume or exercise ■authority over them; and, under its act of incorporation, Laws of 1891, page 505, Section 39, by subdivision 14 defining the authority of the board of trustees as to obstructions in streets, by subdivision 28 authorizing it to construct streets, by subdivision 32 authorizing county road supervisors to collect taxes and keep the county roads in repair, etc., by Section 68 authorizing the board of trustees to change the grade and improve any street, and by Section 101 authorizing the laying out of streets, etc., the City of Bandon had no authority to exercise control over a county road.</p> <p>Dedication — Street—Sufficiency of Evidence.</p> <p>2. In an action to enjoin a city and its contractor from entering upon and excavating a part of plaintiff’s land for the improvement of a street, evidence held not to show a dedication of the strip in dispute as a part of the street.</p> <p>Dedication — Requisites—Intent.</p> <p>3. The public, whether in the form of a municipality or otherwise, cannot acquire the real property of a private holder by dedication, unless the intent of the owner thus to give his realty to the public is clearly and satisfactorily established.</p> <p>[As to what constitutes a dedication of a public street, see note in 129 Am, St. Rep. 576.]</p>

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Benson. This is a creditor’s suit by the First National Bank of Portland, whereby it is sought to subject certain property now in the hands of defendant Morris L. Courtright to the payment of a debt contracted by Harry M. Courtright.

<p>From Marion: William Galloway, Judge.</p> <p>Department 2. Statement by Mb. Justice Benson.</p> <p>This is a suit by J. G. Lais, J. M. Brown, E. J. Brown, M. Small, J. H. Brewer, A. F. Blackerby and Sophia Blackerby to enjoin the City of Silverton from improving McClaine Street in said city. The substance of the controversy is that the charter of the city provides, inter alia, that where it is decided that an improvement shall be made, notice thereof shall be published, “and until five days after the expiration of said notice the owner or owners of two thirds of the property next adjacent thereto may make and file with the council a written remonstrance against the proposed improvement and thereupon the same shall not be proceeded with. ” It is contended by the plaintiffs that they filed such a remonstrance, which the defendant is ignoring, and that unless it is restrained it will proceed to pave the street as proposed.</p> <p>An answer having been filed, a trial was had and a decree entered dismissing the suit. An appeal was taken to this court, which resulted in a reversal of such decree and a remand to the trial court to take further testimony as to the extent of the property represented upon the remonstrance “and make findings and decree as all the testimony on that subject shall indicate”: Lais v. Silverton, 77 Or. 434 (147 Pac. 398, 150 Pac. 269, 151 Pac. 712). Further testi-</p> <p>mony having been taken, a decree was entered dismissing the suit, and plaintiffs appeal.</p>

• From Multnomah: George N. Davis, Judge. This is an action by J. D. Morris against John P. Leach for rent. There was a judgment in favor of plaintiff and defendant appeals. Submitted on brief without argument under the proviso of Supreme Court Rule 18: 56‘ Or. 622 (117 Pac. xi). In Banc.

<p>Judgment — Setting Aside — Call of Causes — Notice.</p> <p>1. Since Section 2804, L. O. L., as amended in 1911 (Laws 1911, p. 440), provides that there shall be two terms of the Circuit Court in Lincoln County, one beginning on the first Monday in August, ■counsel employed in a case in sueh county is chargeable with notice of such legislation, and the fact that the Circuit Court in his own county was not in session did not justify his assuming that a case •on the docket in Lincoln County would not be heard at the August term.</p> <p>Judgment — Setting Aside — Grounds.</p> <p>2. Where the judgment appealed from was obtained ex parte after notice that the other party could not appear for sufficient reasons, it will be reversed on terms, under Section 103, L. O. L., providing that the court may, in its discretion, relieve a party from a judgment by surprise or excusable neglect.</p> <p>(Note. — Within the 30 days appellant complied with the terms imposed by the court. — Reporter.)</p>

From Multnomah: Robert G. Morrow, Judge. Department 1. Statement by Mr. Justice Moors. This is an action by Zera Snow and Wallace Mc-Camant, partners engaged in the practice of law as Snow & McCamant, against S. Roscoe Beard and Mary B. Gray to recover money. The cause, being at issue, resulted in a verdict and judgment for the plaintiffs in the sum demanded, $2,895.70, with interest from April 20, 1914, at the rate of 6 per cent per annum, and the defendants appeal.

From Multnomah: George N. Davis, Judge. In Banc. Statement by Mr. Justice Harris. The object of this suit is to determine whether the Port of Portland can lawfully expend its funds in dredging and improving Oregon Slough.

<p>Municipal Corporations — Port—Powers—Coaling Ships — Statutes.</p> <p>1. Laws of 1901, page 417, reproduced in Sections 6076-6105, L. O. L., Revised Laws of 1891, page 791, establishing and incorporating the Port of Portland, and declared the object of the port to be ■“to promote the maritime shipping and commercial interests of the Port of Portland,” provided for the improvement of certain rivers in the port, and between if and the sea, by a ship canal to the sea, and conferred the right of eminent domain, taxation and the right to make regulations, and to own and operate a dry-dock. In 1908 the legal voters initiated and adopted a measure, attempting to confer the additional power of coaling or bunkering ships, under which the port proposed to purchase a site, erect coal-bunkers, and maintain a supply of coal, the expenses of which were to be raised by taxes, to meet the competition of Puget Sound ports, where coal could be obtained for less than in Portland, and thereby overcome such disad-, vantage and retain and increase its ocean commerce. Held, in view •of the objeet of such legislation, that the coaling or bunkering of ships would be incidental to the public purpose for which the port was created, and would be itself a public purpose, which might bo conferred by the legislature.</p> <p>Taxation — Private Purpose.</p> <p>2. No tax can be imposed for a private purpose.</p> <p>Taxation — Subject—‘Public Purpose.”</p> <p>3. The “public purpose” for which the government may levy taxes is one which concerns its own people, and not some other people having a government of its own, for whose wants taxes are laid, and must pertain to the sovereignty with which the tax originates; the essential requisite being that a uublic service or use shall affect the inhabitants as a community, and not merely as individuals.</p> <p>[As to purposes for which a municipal corporation may levy taxes and assessments, see note in 16 Am. St. Rep. 365.]</p> <p>Taxation — Public Purpose — Custom and Usage.</p> <p>4. Custom and usage may be important factors in determining whether a tax is for a publie or private purpose; but, while recognizing the influence of customs and usages already established, the courts are mindful of the fact that new customs and usages may prevail, and that conditions may change, so that a purpose, formerly private, may become public.</p> <p>.Municipal Corporations — Port — Powers — Amendment to Charter-Coaling Ships.</p> <p>5. Under Laws of 1901, page 417, reproduced in Sections 6076— 6105, L. O. L., revising Laws of 1891, page 791, incorporating the municipality of the Port of Portland without the right to coal ships, the voters thereof could not, without legislative aid, constitutionally initiate and adopt a measure authorizing the port to coal ships.</p>

From Union: John W. Knowles, Judge. In Banc. Statement by Mr. Chief Justice Moore.

From Multnomah: John P. Kavanaugh, Judge. Department 2. Statement by Me. Chief Justice Mooee. This is an action by Robert Wakefield against Joseph Supple to recover money.

<p>Divorce — Grounds—“Cruelty.”</p> <p>1. In a wife’s action for divorce, where the evidence shows that defendant treated plaintiff in a cruel and inhuman manner, with per- ■ sonal indignities, cursing her, striking her; bruising her arm and neglecting her when she was in ill health, thereby rendering her life burdensome, plaintiff was entitled to a divorce on the ground of cruelty.</p> <p>[As to cruelty as ground for divorce, see notes in 29 Am. Dec. 674; 73 Am. Dec. 619; 40 Am. Rep. 463; 51 Am. Rep. 736; 65 Am. St. Rep. 69.]</p> <p>Divorce — Allowance—Money Invested.</p> <p>2. Where a wife was granted a decree of divorce, she was entitled to judgment against the defendant for a sum invested by her in real ■estate, which shall be a lien on the defendant’s interest therein.</p>

<p>Partnership — Bills and Notes — liability—Signature by Trade Name— “Person.”</p> <p>1. Under Section 5851, L. O. L., making one who signs a note in a. trade or assumed name liable as if he signed his own name, and Section 6023, defining “person” to include a body of persons, whether incorporated or not, and in view of the fact that a partnership may adopt any name it chooses as its firm name, and that each partner is the agent of the firm and may sign its name to any paper given for partnership business, a note signed, “The Oregon Locators, by P. L. <•}., member of the firm authorized to sign the firm name,” renders the firm and the other member liable.</p> <p>[As to liability of partnership on note executed in name of a single partner, see note in Ann. Cas. 1912A, 618.]</p> <p>Appeal and Error — Scope of Review — Absence of Bill of Exceptions.</p> <p>2. In the absence of a bill of exceptions, the appellate court can consider only whether the findings support the judgment.</p>

<p>Religious Societies — Conveyances—Validity.</p> <p>1. Land was conveyed to trustees of a religious society whieb abandoned the premises, and it was thereafter sold by order of the general conference by the “trustees of abandoned church property.” Held, the conveyance was valid in absence of statute, it being in accordance with church discipline, and compliance with Sections 7177; .7178, L. O. L., relating to powers of trustees being permissive and not mandatory, did not apply.</p> <p>Vendor and Purchaser — Construction of Contract — “More or Less.”</p> <p>2. Where a contract for the purchase of land described it by metes and bounds and ended “containing 32 acres more or less,” the plain meaning of the words “more or less” is that the parties are to run the risk of gain or loss, and if there is only a trifle less than 32 acres, the shortage is not material.</p> <p>[As to what the expression “more or less” indicates in the description of land conveyed, see notes in 41 Am. Dec. 410; 28 Am. St. Rep. 631.]</p>

<p>Larceny — Evidence—Admissibility.</p> <p>1. In a prosecution for larceny of two horses from the range, testimony of a witness that he had seen an unbranded horse which the prosecutor claimed which answered generally to the description of one of the horses in question, and that later he had seen the same horse in the defendant’s field with defendant’s brand upon its left shoulder, was competent to show the acts of ownership exercised by the prosecutor over the animal mentioned from which the presumption might arise that it was his property.</p> <p>Larceny — Evidence—Admissibility.</p> <p>2. The evidence was also admissible to show that the property was afterward found in the possession of the defendant, because it was in his pasture with his brand upon it.</p> <p>Criminal Law — Evidence of Settlement — Admissibility.</p> <p>3. In prosecution for larceny of two horses from a range, statement of a witness that the defendant in an interview with him had “evidenced a desire” to have the case settled out of court if possible was inadmissible, since it does not impute to the defendant any utterance whatever.</p> <p>Criminal Law — Evidence of Settlement — Admissibility.</p> <p>4. It was also inadmissible for the reason that there is nothing inculpatory in wishing to get a case “settled.”</p> <p>Criminal Law — Appeal and Error — Prejudicial Error.</p> <p>5. In a prosecution for larceny of two horses from the range, error in the admission of testimony of witness that accused had evidenced a desire to get the ease settled out of court if possible was cured by the court’s action in withdrawing the testimony from the consideration of the jury.</p> <p>Criminal Law — Evidence—Other Offenses — Admissibility.</p> <p>6. In a prosecution for larceny of two horses from the range, evidence that the defendant had changed the brand on the animals and that he was concerned in killing them, although tending to prove distinct crimes separate from the one mentioned in the indictment, was admissible as tending to show a general plan or as an attempt to conceal his offense.</p> <p>[As to brands on animals as evidence of ownership, see note in Ann. Cas. 1913E, 133.]</p> <p>Criminal Law — Trial—Instructions.</p> <p>7. In a prosecution for larceny of two horses from, the range, as the killing of the horse by the defendant might be equally attributed to the commission of malicious mischief, defined in Section 1969, Ii. O. L., or to a desire to conceal the alteration of a brand, defined by Section 1954, or to the destruction of stolen property to aid in evading the consequences of the larceny, an instruction that, if the jury found from the evidence beyond a reasonable doubt that defendants killed the horses in question for the purpose of concealment, they might consider the same as tending to show the guilt of defendant of the charge of the indictment, was error, since, if the conclusion to be drawn from the circumstances in question is equivocal, it is for the jury alone to say what influence and what direction shall be accorded the evidence on the point.</p> <p>Criminal Law — Evidence—Judicial Notice.</p> <p>8. It is common knowledge, not requiring expert testimony, that a putrescent or desiccated carcass has been dead longer than one the flesh of which presents no indications of decay.</p> <p>Criminal Law — Evidence—Admissibility.</p> <p>9. Whether the body is stiff or relaxed, whether the gases of decomposition have distended it or not, the temperature and moisture prevalent at the time, as well as other factors, are phenomena to be considered in estimating how long a body probably has been dead.</p> <p>Criminal Law — Experts—Qualification.</p> <p>10. In a prosecution for larceny of two horses from the range in which it appeared that the horses had been found dead after they were discovered in the possession of the defendant by the prosecutor, in the absence of testimony as to whether the witnesses who had butchered cattle, sheep or hogs had made any systematic or extended observation as to the condition of the carcasses and surrounding circumstances, their opinion as to how long the horses had been dead ■should not have been admitted.</p> <p>Criminal Law — Experts—Qualification.</p> <p>11. In any event they should have described to the jury the appearance and mdieia upon which they based their judgment, since ■even an expert cannot give an opinion upon facts not communicated to the jury.</p>

<p>Public Lands — Railroad Grant — Title.</p> <p>1. Act Cong. July 2, 1864, c. 217 (13 Stat. 365), granting land to aid in the construction of the Northern Pacific Railroad, operated as a present grant beginning with the date when the plat of the road was filed in the office of the Commissioner of the General Land Office June 29, 1883, so that eo instcmti the title of the grantee in all of the land to which the statute applied vested.</p> <p>• Public Lands — Swamp-lands—Railroad Grant — “Claim.”</p> <p>2. Under Act Cong. July 2, 1864, granting lands to aid in the construction of the Northern Pacific Railroad free from pre-emption or other claims at the time the line of the road was definitely fixed and a plat filed in the General Land Office, the filing of the swampland list by the State of Oregon under act of Congress approved September 28, 1850, c. 84 (9 Stat. 519), applicable to that state by Act March 12, 1860, c. 5 (12 Stat. 3), constituted a “claim” excluding such land from the operation of the railroad grant.</p> <p>Adverse Possession — Color of Title — Deed.</p> <p>3. The grantee of lands from the State of Oregon which the state had acquired under the swamp-land acts, Act Cong. September 28, 1850, as extended by Act Cong. March 12, 1860, who at once entered into possession, had color of title under his deed.</p> <p>Public Lands — Mineral Selections — Statute.</p> <p>4. Under the express provision of Act Cong. July 2, 1864, granting lands to aid in the construction of the Northern Pacific Railroad, the indemnity in lieu of mineral lands must be taken out of unoccupied agricultural lands.</p> <p>Public Lands — Railroad Grant — Withdrawal—Effect.</p> <p>5. Under Act Cong. July 2, 1864, granting land to aid in the construction of the Northern Pacific Railroad, and excluding mineral lands and in lieu thereof giving a selection out of unoccupied agricultural lands, the cancellation or rejection of swamp-land list filed by the State of Oregon under Act Cong. Sept. 28, 1850, as extended by Act Cong. March 12, 1860, constituting such a claim as to exclude the land from the railroad grant, would not operate to extend the grant over a disputed tract in the matter of filing indemnity selections.</p> <p>ON PETITION FOR REHEARING.</p> <p>Adverse Possession — Public Lands — Grant from United States.</p> <p>6. In view of Aet Gong. Feb. 14, 1859, e. 33 (11 Stat. 384), admitting Oregon into tbe Union, Section 4 of which provides that the people of the state shall provide by an ordinance irrevocable without consent of the United States that the state shall never interfere with the primary disposal of the soil within the same by the United States, when the United States issued patents to land, it thereby made a primary disposal of the soil, and the title so transferred was no more immune from the attack of the state courts than if such conveyance had been executed by a private party, and could be defeated by showing of title by adverse possession.</p> <p>¡Courts — Jurisdiction—State and Federal Courts — Swamp-lands—Title.</p> <p>7. Where the state’s selection of swamp-lands was rejected by the General Land Office, and no patent for any part of the land has ■ever been granted, title thereto is in the United States, and while it so remains a state court is powerless legally to interfere therewith.</p> <p>Courts — State Courts — Jurisdiction—Government Lands.</p> <p>. 8. Although a state court is powerless to interfere with the title of the United States to lands, when two parties are seeking to obtain title to government lands, it is the duty of the court to protect the .possession of him who apparently has the better right until the controversy can be adjudicated by the agencies appointed by the United States for that purpose.</p> <p>[As to acquisition of title to land within railroad right of way by adverse possession, see note in Ann. Cas. 1916D, 1186.]</p>

From Wallowa: John W. Knowles, Judge. In Banc. Statement by Me. Justice Benson. This is a suit by F. D. McCully and J. D. McCully against Elizabeth Heaverne to quiet title. The complaint is in the usual form in a suit to quiet title to a narrow strip of land a half mile long.

<p>From Multnomah: William N. G-atens, Judge.</p> <p>Department 2. Statement by Mr. Justice Harris.</p> <p>Henry Barnhart was injured while employed as an edgerman in a sawmill operated by the North Pacific-Lumber Company. The plaintiff obtained a verdict and judgment in an action for damages, and the defendant appealed. The edger is a machine with several saws. There is an open space of about three feet between the edger and a set of dead rolls, and it was the duty of the plaintiff to stand in this open space and adjust the saws and to operate the machine and put lumber through it. The set or line of dead rolls in front of the edger, according to the complaint, is about 12 feet in length. On one side of and about three feet from and parallel with the row of dead rolls is a line of live rolls extending along the mill about 40 feet to the pony saw. The main saw is on one side of the mill and the pony saw on the other. Cants are conveyed from the main saw by means of a traveling crane over to the pony carriage. When a piece of lumber is sawed from a cant by running it through the pony saw, the piece is carried by the live rolls until it arrives at the side of the dead rolls, and then it is transferred from the live rolls to the dead rolls by means of chains fashioned like belts and operated by steam power; the lumber is then shoved along the dead rolls by hand and put through the edger. While engaged in adjusting the edger saws and standing with his back to the set of dead rolls, a piece of lumber on the dead rolls was shoved against the plaintiff, causing his hand to be •caught in the edger and injured. In substance, the complaint alleges that a piece of lumber was being conveyed from the pony saw along the live rolls, and, instead of remaining on the live rolls, the forward end of the piece of lumber veered from the line of the live rolls and struck a piece of lumber on the dead rolls, causing the latter piece to be shoved against the plaintiff and thus causing him to be thrown against the edger and his hand to be injured by the machine. The plaintiff avers that his work involved a risk and danger, and that his employer violated the Employers’ Liability Act by failing to install a guard on the live rolls or to provide an offbearer to keep each piece of lumber on the live rolls until it reached the point where it was to be transferred to the dead rolls.</p> <p>The answer alleges that the defendant was entirely free from negligence, and that the injury sustained by plaintiff was caused solely by the act of a fellow-servant, who shoved a piece of lumber along the dead rolls against the plaintiff.</p>

<p>From Josephine: Frank M. Calkins, Judge.</p> <p>In Banc. Statement by Mr. Chief Justice McBride.</p> <p>This is a suit by Maggie E. Short and Charles E. Short against Rogue River Irrigation and Power Company, an Oregon corporation, W. B. Sherman, Christopher Omann, R. E. Lee Steiner, J. Gr. Riggs, A. N. Parsons, Sam Baker, P. N. Derby, O. A. Knoblauch, E. A. Pierce and Charlotte Pierce, his wife, Gr. C. Parmer and C. E. Parmer, defendants, to quiet adverse claims to real property and to annul and cancel a certain selling contract made between the plaintiffs and the defendant Sherman. The contract is set up in the complaint, and its essential provisions are as follows: The land included in the contract was the whole of section 20, township 35 south, range 6 west, Willamette Meridian, in Josephine County, with the exception of certain lots and tracts not necessary to be enumerated here. By the terms of the agreement, Sherman was authorized to negotiate sales according to a schedule agreed upon by the parties until June 8,1911. He was within 15 days from the date of the contract to start an active campaign for the sale of the lands in lots and tracts, surveying, platting and advertising and selling the property at his own expense in such manner as to him might seem best. The lands were to be sold by a schedule to be agreed upon by the parties as soon as the surveying should have been completed at a price to aggregate not less than $27,500, except by the written consent of the Shorts, upon the following terms: Ten per cent in cash to be paid by the purchaser upon the delivery of a contract of sale to be executed by the Shorts, the balance to be paid in monthly installments of not less than 3 per cent, and deferred payments to draw 6 per cent interest. Sherman was to collect all money from such sales and place the same in a fund to be divided as follows: One half of the money received on each sale to be retained by Sherman as his commission until he had received the amount of 25 per cent of each sale; the remaining 75 per cent to be given to the Shorts in payment for the land sold. The fund, however, was to be kept intact until the Shorts should be satisfied that all expenditures incurred by Sherman for which they might be liable had been paid out of his commission, and until all indebtedness of the Shorts which might conflict with their ability to make a good conveyance of the land sold should have been paid out of the Shorts’ portion of the fund. An accounting was to be made every 30 days. Then followed these clauses:</p> <p>“Fifth. The first party agrees to sell the property at the price of $13,800 net to them on the following terms: At least $4,725 and interest at the rate of 7 per cent per annum shall be paid on or before August 1, 1910, and the balance to be paid from the proceeds of the sale as heretofore provided.</p> <p>“Sixth. Said first party hereby agrees to issue good and sufficient warranty deeds to any lot or parcel of said land as the same may be paid for by the third party or upon the payment of 50 per cent of the pur- . chase price as a mortgage given for the remainder.</p> <p>“Seventh. It is expressly understood and agreed that if the party of the second part shall on or before June 8, 1911, pay to the party of the first part from the proceeds of the sale of said lots, parcels, or tracts • of land $6,900 in cash and mortgages covering such property on which 50 per cent of the purchase price has been paid in an amount aggregating $13,800, as above provided, then and in that event the party of the first part shall promptly as they receive said sum convey all the remaining unsold lots, parcels, or tracts of land to the party of the second part, free and clear of all encumbrances of whatsoever name or nature, it being expressly understood and agreed that the total amount in cash or otherwise to be received by the party ' of the first part under and by virtue of this agreement is not to exceed the sum of $13,800.</p> <p>“Eighth. The party of the second part expressly agrees that he will maintain an active selling campaign ,on said property during the life of this contract; that he will pay at least $4,725, with interest at seven per cent from date hereof, by August 1, 1910, either from the proceeds of the sales, or otherwise, and should he fail to keep actively engaged in the sale of said land or to make the payment as above described, then, and in that event, he shall forfeit all his rights and interests in and to this contract, excepting as to his commissions for the sales already made; and no action at law is necessary to place the title to this property in the hands of the first party the same as before this contract was made.</p> <p>“Ninth. It is further understood and agreed that nothing herein shall constitute or be considered as an agreement or obligation of any kind on the part of the party of the second part to purchase the above-described property, or any part thereof, nor to pay any amount thereon.</p> <p>“Tenth. And the parties of the first part hereby agree by and with the party of the second part that they will sell to him all of the property herein designated and described upon his faithful performance of the conditions herein promised and upon the terms and conditions herein specified. Time is expressly declared to be the essence of each and every term, condition or' covenant herein, and upon default in the observance of either term, condition or covenant, or the payment of any sum herein mentioned, the second party herein, his heirs and assigns, shall ipso facto forfeit all payments made hereunder and all rights acquired herein without notice from the first parties and any sums paid shall be retained and kept by the first parties as liquidated damages and rental for the use of said premises, and upon default the second party shall not be deemed to have acquired any rights in the property mentioned herein by virtue of any payments or things done or performed hereunder, and it shall not be necessary for the second party to begin proceedings at law or equity to determine any rights hereunder, the parties hereto by this instrument determining the rights of each hereunder, and upon the default of the second party in any of the foregoing matters the said forfeiture shall apply to all things contained herein except to commissions already earned. ”</p> <p>The complaint alleged that on May 20, 1910, Sherman assigned the foregoing contract to the defendant Eogue Eiver Irrigation & Power Company; that said company paid upon said contract the sum of $4,725 and interest to August 1, 1910; that neither said company nor any other person had made any other payments nor performed any of the stipulations of said contract required by them to be performed; that the other defendants claim some interest or lien upon said property, but if they have any, it is subordinate to the rights of plaintiffs. There was a prayer that the defendants be adjudged to have no interest or estate in the premises; that the title of plaintiffs be adjudged good and valid; that the defendants be enjoined from asserting any adverse claim to the property; that the agreement be canceled and annulled; that the Eogue Eiver Irrigation & Power Company and Sherman be required to execute quitclaim deeds to the property; and for general equitable relief.</p> <p>All the defendants except the power company and Sherman made default. The power company answered disclaiming any interest in the property and alleged:</p> <p>“Because of the damage caused one W. B. Sherman, one of the defendants herein, by reason of the failure of the said Eogue Eivef Irrigation & Power Company to fulfill the promises and agreements made with the said "W. B. Sherman, and by reason of which the said W. B. Sherman entered into that written agreement and assignment referred to in the complaint as being recorded in volume 36 of the deed records of Josephine County, Oregon, at page 416 thereof, this defendant consented and agreed with the said W. B. Sherman that the said assignment was and should be canceled, annulled and held void, and the said W. B. Sherman restored to all of his original rights in and to and under the contract between him and the plaintiffs herein set forth in said complaint, and that he, the said W. B. Sherman, should have and receive the benefit and the credit for all payments made upon the said contract with the plaintiffs by the said Bogue Eiver Irrigation •& Power Company, more especially those certain payments heretofore made of $4,725 principal and payment on the interest up to and including August 1, 1910.”</p> <p>Then followed a general disclaimer. Sherman, who is the sole appellant, answers with a qualified denial of the allegations of the complaint, and then alleges that immediately after the making of the agreement with the plaintiffs he entered upon and continuously thereafter maintained an active campaign for the sale of the lands by surveying, platting, advertising and endeavoring to sell said property, at large expense to himself, and that he had at all times since said date complied with all the requirements of the contract; that said efforts were continued until the twentieth day of May, 1910, when by a written agreement the contract was assigned by them to the Bogue Eiver Irrigation & Power Company, which upon August 1, 1910, paid to plaintiffs $4,750 upon the purchase price and interest up to August 1, 1910, and that thereafter the said power company continued at great expense to itself to maintain an active campaign for the sale of said property and fully performed every term and condition of the contract between Sherman and the Shorts. The answer then sets forth the agreement between Sherman and the power company, which included the transfer by Sherman of other property and property rights of his own, and alleges that said transfer was procured by false representations and deceit on the part of the company; that said company wholly failed to comply with its part of the contract with defendant Sherman and fraudulently borrowed large sums of money upon the land in section 20 conveyed by Sherman to it to Sherman’s damage in the sum of $6,000; that his assignment of the contract in suit should be canceled and declared void; that the power company after its dissolution, acting by and through its former' officers and directors, agreed with defendant Sherman by reason of its nonperformance of the contract of-assignment before set out he was entitled to be restored to his original position respecting said land and to, have the benefit of any and all payments made by it upon said contract, with the plaintiffs, and that upon the discovery of the misrepresentations of the officers, of the power company and their agreement to restore him to his original position, which agreement could not be formally entered into in writing because of the dissolution of said corporation, he immediately continued to maintain and prosecute an active campaign for the sale of said lands and performed all the condi-' tions of said contract; that on June 7,1911, defendant Sherman, in a letter addressed to and received by each of the plaintiffs, offered and tendered to plaintiffs the sum of $2,175 cash, together with any interest that-might be due, and offered and tendered in conformity, with said contract $6,900 secured by mortgages upon said land located in section 20, and said mortgages were delivered at the request of plaintiffs to their agent the Grants Pass Banking & Trust Company, with instructions to deliver them to plaintiffs when plaintiffs' should execute warranty deeds conveying good title to. the land. It was also alleged that there were encumbrances which rendered the title unmarketable, to wit, an unsatisfied mortgage on the land and another mortgage from F. A. Pierce and wife to G. A. Knoblauch for $1,100; that the title is further clouded by an agreement executed by F. A. Pierce to William Bowers, and by a divorce suit between the plaintiffs in which Maggie E. Short claimed an equitable lien upon the' land; that plaintiffs have never tendered to defendant Sherman a deed conveying a good and marketable title; that defendant Sherman has always been ready and willing to pay the sums due under said contract, has left the mortgages tendered under said contract on deposit at the bank aforesaid as a continuing tender, and has always offered and now offers to pay the actual ■cash due on said contract after deducting the actual amount of the mortgages therefrom.</p> <p>The new matter in the answer being put in issue by appropriate denials, there was a trial and findings for the plaintiffs and a decree substantially that, unless defendant Sherman should pay to the plaintiffs within 90 days the sum of $9,075 with interest at 7 per cent per annum from February 21, 1910, and the costs and disbursements of this suit, the defendant should be barred and foreclosed from all interest in the property, and that within 10 days from the expiration of said redemption period in default of such redemption said defendant should execute a quitclaim deed to plaintiffs of said premises. There was no personal judgment against the defendant. From this decree he appeals.</p> <p>Submitted on brief under the proviso of Supreme Court Bule 18: 56 Or. 622 (117 Pac. xi).</p>

From Clatsop: James A. Eakin, Judge. In Banc. Statement by Mr. Justice Burnett. The plaintiffs are tbe children and widow of Hans .Rasmussen, who died intestate August 16, 1906, and who, they say, purchased from one Swan on March 16, 1906, the northwest quarter of the northwest quarter of section 9, township 7 north, range 9 west of the .Willamette. Meridian, in Clatsop County, Oregon.

<p>Infants — Offenses Against Soliciting — “Procure”—“Solicit"—“Entice.”</p> <p>1. Within Section 2078, L. O. L., defining the crime of soliciting, procuring, or entieing a child under 18 years to have sexual intercourse, the words “procure," “solicit,” and “entice” each import an initial, active and wrongful effort.</p>

Original proceeding in Supreme Court. In Banc. Statement by Me. Justice Harris. This is an original proceeding by tbe State of Oregon, on tbe relation of M. Motscbenbacber and C. R. De Lap, directors of tbe Klamatb Drainage District in which an alternative writ of mandamus was issued out of this court directing A. A. Mehaffey to sign or to show cause for not signing certain bonds as secreta,ry of tbe Klamatb Drainage District.

<p>From Yamhill: Harry H. Belt, Judge.</p> <p>Department 1. Statement by Mr. Justice Benson.</p> <p>This is an action by the International Harvester 'Company of America, a corporation, against Jean Bauer, Jacob A. Large and Hattie M. Large, his wife, •and L. M. Scroggin. The facts are as follows:</p> <p>On August 5, 1914, the defendant Jean Bauer purchased from the plaintiff corporation a threshing-machine and engine, giving in payment therefor three promissory notes, one being for $200, and the other two for $350 each, the notes all being in the same form and containing the following paragraphs:</p> <p>“This note is given for one gasoline engine, and one thresher, with bagger and stacker. I agree that the title thereto, and to all repairs and extra parts furnished, shall remain in said company, its successors and assigns, until this and all other notes given for the purchase price shall have been paid in money. If I fail to pay this note when due, or if said property is misused or seized for my debts, the holder of this note may seize and sell the same at public or private sale, with or without notice, pay all expenses thereby incurred, and apply the net proceeds upon this note and other notes given for the purchase price thereof, whether due or not due, and retain all payments before made as rent for the use of said property. I expressly agree to pay any balance on this note remaining unpaid after such property is sold, or if the same be burned or otherwise damaged or destroyed after its delivery to me. The indorsers, sureties, and guarantors severally waive presentment for payment, protest, notice of nonpayment, and diligence.”</p> <p>At the same time the defendant executed a chattel mortgage upon the same property, containing a covenant of ownership, to secure the payment of notes, and contemporaneously therewith he executed a mortgage upon 60 acres of land in Yamhill County as additional security for the payment thereof. These notes matured on the first days of November, 1914, 1915, 1916, respectively. On April 20, 1915, no payment having been made upon the note which matured on November 1, 1914, plaintiff through its attorneys directed the sheriff of Yamhill County to seize the personal property described in the chattel mortgage and to sell the-same in accordance with the terms thereof, which was done, and thereafter the sheriff filed his return, from which it appears that he posted notices of such sale in three public places in Yamhill County and published such notices for more than ten days prior to said sale in the “Willamina Times” and the “Sheridan Sun,” and on Monday, the third day of May, 1915,. sold the property at public auction to the highest and best bidder.for cash; that the price received therefor was $200; that the expenses, costs and sheriff’s commission amounted to $16.70; that $100 was paid as attorney’s fees in connection with said sale; and that, there was a credit made upon the notes of $84.30. On April 20, 1915, the plaintiff began this suit to foreclose the mortgage upon the real estate.</p> <p>The second amended complaint upon which the ease-was tried recites the facts as herein .stated, and prays for a decree in accordance therewith. To this complaint the defendant answered, taking issue, so far as. the matter is of interest upon this appeal, upon the-question as to whether or not the sale was an absolute-one or conditional. A trial being had, there was a judgment and decree for plaintiff for the full sum of $900, with interest, $100 as reasonable attorney fees,, and for costs and disbursements, from which judgment and decree defendant appeals.</p>

From Yamhill: Haeey H. Belt, Judge. Department 2. Statement by Mb. Justice Mooee. This is a suit by Carrie Coos against J. A. Coos for a divorce on the ground of cruel and inhuman treatment and personal indignities rendering her life burdensome, and for the custody of their daughter, Margaret, who was four years old when the suit was commenced. The cause, being at issue, was tried, and the sidt dismissed, from which decree the plaintiff appeals.

<p>Waters and Watercourses — Seepage—Injunction—Burden of Proof.</p> <p>1. One suing to restrain the maintenance of a water corporation’s ditch across his land, because seepage therefrom was injuring the land, has the burden of proving that the water which injured the land had. escaped from defendant’s ditch.</p> <p>Waters and Watercourses — Seepage—Injunction—Evidence.</p> <p>2. In a suit to enjoin the maintenance of a water corporation’s ditch across plaintiff’s land, evidence as to the construction and) maintenance of the ditch, and of seepage therefrom as the cause of the injury, held not to entitle plaintiff to the extraordinary remedy of injunction.</p> <p>[As to liability of municipality for negligence in construction, or operation of waterworks, see note in Ann. Cas. 1912A, 220.]</p>

From Columbia: James A. Eakin, Judge. Department 2. Statement by Me. Justice Habéis. L. A. Jones is attempting to compel the performance of an alleged contract for the sale of land. Frances Ross is the executrix of the estate of John Frederick Dangerfield, deceased.