Volume 83 — Oregon Reports

<p>Appeal and Error — Filing of Transcript — Premature Filing.</p> <p>_ 1. Where no exceptions were taken to the sufficiency of the sureties on an undertaking oh appeal, filed and served on the day of the filing and serving of notice of appeal, a transcript filed two days later was not prematurely filed, and the court could not dismiss the appeal on that ground.</p> <p>Appeal and Error — Filing of Transcript — Jurisdiction of Appellate Court.</p> <p>2. Under Section 554, L. O. L., providing that, on an appeal being perfected, appellant shall, within 30 days, file a transcript, an appeal may not be dismissed where, within 30 d^ys after perfecting the appeal, an abstract was filed, containing all that the rules of the Supreme Court required to be included therein, and hence ample to give the court jurisdiction.</p> <p>Appeal and Error — Filing of Transcript — Premature Filing.</p> <p>3. An appeal may not be dismissed, on the ground that the transcript was prematurely filed, where it was required on appellant’s application for a restraining order pending the appeal.</p> <p>ON THE MEBITS.</p> <p>Mines and Minerals — Public Mineral Lands — Nature of Eight Acquired.</p> <p>4. A person, locating mining claims under Sections 3901-3906, L. O. L., acquires only a temporary possessory right, subject to divestment by failure to purchase or lease lands under regulations of state land board.</p> <p>[As to discovery of minerals in mining claims and rights of locator prior thereto, see note in 139 Am. St. Rep. 154.]</p> <p>Public Lands — Distinction Between State and Federal Lands.</p> <p>5. A distinction exists between the policy of the federal government and the Oregon state government regarding the taking up of public lands, the former being for purposes of development and the latter to provide funds for the public school system.</p> <p>Estoppel — Boundaries of Mining Claims.</p> <p>6. Where plaintiff assisted defendant in entering a mining claim actually within his own staked claim and, upon defendant striking “pay-dirt,” admitted in presence of witnesses that the claim belonged to defendant and offered to buy it, and in view of other testimony offered, held that plaintiff was estopped from claiming the property.</p> <p>Estoppel — Mining Claims.</p> <p>7. Where the son of an entrant of mining claims acquiesced in his father’s actions whieh estopped the latter from claiming lands entered by defendant, and the son making no objection to defendant’s location of the claim, the son also is estopped from claiming the disputed land.</p> <p>Estoppel — Ownership of Mining Claim.</p> <p>8. Where a person, furnishing money for plaintiff’s use in buying mining claims, asked to be made a defendant in a suit for lands entered by defendant within plaintiff’s boundaries, and asserted the validity of defendant’s title, he could not assert any claim himself to the disputed property.</p> <p>Mines and Minerals — Assignment of Mining Claim — Rights of Assignee.</p> <p>9. The assignee of a mining claim cannot claim any rights superior to those of his assignor, unless he be an innocent purchaser for value.</p> <p>Frauds, Statute of — Mining Claims — Verbal Option.</p> <p>10. In view of Section 5132, L. O. L., making a mining claim real property, an interest therein cannot be created by verbal option.</p> <p>Mines and Minerals — Option for Purchase of Mining Claim — Estoppel of Assignee.</p> <p>11. In view of evidence offered in dispute over mining claim, the assignee of a contract, which was an option for purchase of mining lands, held not to be an innocent purchaser, and an estoppel, operating against assignor, will also estop assignee.</p> <p>Mines and Minerals — Option for Purchase of Mining Claim.</p> <p>12. A contract, giving possession and right to purchase mining property, but with right to terminate the contract, held to be an option of purchase.</p> <p>Pleading — Pleading Legal Effect — Construction on Appeal.</p> <p>13. Where defendant’s answer did not plead an estoppel, but pleaded facts constituting an estoppel, upon appeal they will be given their legal effect.</p>

From Jackson: George F. Skxpworth, Judge. Department 2. Statement by Mr. Justice Burnett. This is an action by Charles Dodge against C. W. Root to recover damages for the breach of an alleged contract whereby the defendant agreed to sell and the plaintiff to buy certain real property. A general demurrer to the complaint was overruled. An answer was then interposed raising substantially the same questions.

<p>Municipal Corporations — Street Improvement — Quieting Title — Sufficiency of Answer.</p> <p>1. Under a city charter, empowering the council to provide for the paving of streets to be assessed to the adjoining property, and to be undertaken after published notice, and that until five days after expiration of such notice, the owner or owners of two thirds of the property might file a written remonstrance against the proposed improvement, the city’s answer in an owner’s suit to quiet title to property against which the city had attempted to establish a lien was not fatally defective because it did not allege that no sufficient remonstrance had been filed within the time fixed by the charter, where it was admitted that the city took every step required by the charter, as in such case its jurisdiction could have been ousted only by some move of the property owners, which would have been a matter of defense in the proceeding.</p> <p>Municipal Corporations — Paving Improvement — Acceptance—Conclusiveness.</p> <p>2. In a suit to quiet title to property against which defendant city sought to establish a lien for a paving improvement, plaintiff could not contend that the paving in front of his property was not well done, as the council’s acceptance of the work done under the supervision of the city engineer, who had previously approved it, in the absence of anything to. show fraud, was conclusive.</p> <p>[As to judicial inquiry into motives prompting enactment of ordinance relating to local improvement, see note in Ann. Cas. 1912A, 718.]</p>

From Coos: George F. Skipworth, Judge. In Banc. Statement by Mr. Justice Moore. This is an action by the National Sales Company against H. Manciet and George Manciet to recover money. The complaint substantially alleges: That the plaintiff is a corporation organized under the laws of Oregon. That on July 1, 1914, the defendants executed to the plaintiff their promissory note, of which the following is a copy: “P. 0.

From Coos: John S. Coke, Judge. This is an action by W. J. Mitchell and L. Gr. Carpenter, doing business under the firm name and style of Coast Detective Bureau, against J. W. Coach. Bespondent moves to dismiss defendant’s appeal. In Banc.

From Yamhill: Harry H. Belt, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is a suit by James Savage against S. L. Scrog-gin and W. G-. Henderson, as sheriff of Yamhill County, Oregon, to enjoin the sale upon execution of certain land of plaintiff, situate in Yamhill County.

From Douglas: Jambs W. Hamilton, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is a suit by William A. F. Williams against L. Belle Williams to quiet title to tbe west half of section 16, township 31 south, range 6 west, Willamette Meridian, situated in Douglas County. The complaint alleged that the parties were formerly husband and wife, but were divorced by decree of the Superior Court of Napa County, California, on the twenty-ninth day of October, 1913.

From Linn: William Galloway, Judge. Department 1. Statement by Mb. Justice Bubnett. In the second amended complaint upon which this action was tried in the Circuit Court it is alleged that the plaintiff Society of Independent Doúkhobors is a corporation duly organized under the laws of Oregon. There are 26 individual plaintiffs. The defendants are husband and wife.

From-Tillamook: George E. Bagley, Judge. Department 2. Statement by Mr. Justice Bean. J. H. Hicks, plaintiff in this suit, purchased a garage of the defendant B. L. Beals, Jr., with the equipment and stock of merchandise in bulk, the purchase price aggregating $1,300. At the time of the deal one Snodgrass, who held a chattel mortgage on the merchandise in question given for the purchase price, was in possession for the purpose of enforcing his lien.

From Klamath: George Noland, Judge. Department 2. Statement by Mr. Chief Justice McBride.

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Mc-Camant. This suit is brought by Thomas J. Wilson against Phil Gevurtz, M. Pallay, B. Pallay and Wm. Druck to foreclose a mechanic’s lien on the Highland Court Apartments, situate on the northeast corner of Twenty-second and Glisan Streets, in the City of Portland. The decree adjudged a lien on the premises of defendants, M. Pallay and B. Pallay, the owners of the property.

From Multnomah: Robert G. Morrow, Judge. An injunction suit by tbe Scott Company, a corporation, and others, against the Roman Catholic Archbishop for the Diocese of Oregon, A. Christie, a corporation. From a decree dismissing the complaint the plaintiffs appeal. Department 1. Statement by Mr. Chief Justice McBride.

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Justice Benson. This is a suit by John M. Foulkes against Henry Sengstacken, Agnes R. Sengstacken, his wife, M. C. Horton, Daniel Ritzman, Henry Sengstacken Company, a corporation, John F. Hall, executor de bonis non of the last will and testament of Elizabeth Williams, deceased, John F. Hall and John F. Hall, executor of the last will and testament of James T. Hall, deceased.

From Clatsop: James A. Eakin, Judge. Department 2. Statement by Mr. Justice Burnett. This is a suit by the Columbia River Company against John A. Smith and Susanna Smith, in which suit the facts are as follows: The defendants in this equity suit began an action in ejectment against the present plaintiff’s tenant to recover the possession of lands in Clatsop County.

<p>Counties — Bonds—Elections—Validity—Certificate of County Court.</p> <p>1. Under Laws of 1913, page 174, providing that the order of the County Court shall be conclusive as to regularity of proceedings for the issuance of road bonds if a majority of voters at any general or special election shall have voted in favor of issuing such bonds, the authority of the County Court depends upon whether a majority of the voters actually voted for the measure, and the order of the County Court does not foreclose an investigation into the election.</p> <p>Counties — Bonds—Election—Count of Votes — Majority.</p> <p>2. The majority of those voters voting on the issuance of bonds for building and maintaining county highways, and not the majority of all voters voting at the election, determines whether such bonds shall be issued under Laws of 1913, page 170.</p>

From Multnomah: Robert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Benson. This is a suit by the superintendent of banks in his official capacity in behalf of the creditors of the American Bank & Trust Company of Portland, to recover from certain stockholders upon their liability for unpaid stock subscriptions.

<p>Corporations — Stock Subscription — Contract—Security or Payment.</p> <p>1. A contract whereby the owner of property conveyed it to a trustee for a corporation, subject to a mortgage thereon, and to a contract for the sale thereof, and received shares of stock in the corporation, which contract expressly provided that the note given by the trustee to the corporation for the purchase price of the land was to be paid only out of the proceeds of the sale of the land, was a sale of the stock paid for by the conveyance of the land, not a sale for a price secured by the conveyance.</p> <p>Corporations — Stock—Payment in Property.</p> <p>2. Under the law of-Washington, subscriptions to the stoek of a corporation organized in that state can be paid in property, which is considered in good faith by the parties as equivalent to the value of the stock.</p> <p>[As to wha.t may be received in payment for subscription to stoek where payment is required in “cash,” see note in Ann. Cas. 1912E, 480.]</p> <p>Corporations — Stock—Repurchase by Corporation.</p> <p>3. In a contract whereby a corporation agreed to resell part of the stock subscribed for by a purchaser, an agreement that on its failure to make such resale the corporation would pay for the stock oiit of the proceeds of the sale of land conveyed to it by the subscriber in payment for the stock is an agreement by the corporation indirectly to purchase its own stock, and is ultra vires and void where the laws of the state in which it was incorporated forbade it from purchasing its own stoek.</p> <p>Corporations — Contract—Ultra Vires Provision — Effect.</p> <p>4. The invalidity of that provision merely because it was ultra vires does not vitiate the whole contract nor render the subscriber liable to the'borporation for the amount paid him by it for a resale of part of the stoek nor require him to repay the amount received by him as dividends on stock of another corporation issued in exchange for his stoek.</p> <p>Mortgages — Payment by Mortgagor — Conveyance Subject to Mortgage — Subrogation.</p> <p>5. The owner of a tract of land mortgaged it and then entered into a contract for its sale on a commission by a broker who was to become entitled to the balance of the land after the owner received a stipulated sum from the sale made. Thereafter the owner transferred the land and his rights under the contract with the broker to a trustee for a corporation in exchange for stock in the corporation at a value fixed as the amount he was to receive from the broker less the amount of the mortgage. This conveyance was expressly made subject to the mortgage. Thereafter the owner to protect himself was required to pay the amount of the mortgage, and he had it assigned to a third party as trustee for him. In the meantime the broker had failed to perform his contract, and it was forfeited according to its terms. Held that, the rights under the contract having passed to the trustee for the corporation, the owner did not have title to the lands so as to make his payment of the mortgage a satisfaction of it, and he was entitled by subrogation to enforce it against the corporation.</p> <p>Subrogation — Payment by Mortgagor — Lien for Taxes.</p> <p>6. In such a ease the owner could also foreclose the mortgage for the amount paid by him to discharge the lien for taxes, the mortgage providing that in the event of the failure of the mortgagor to pay suck taxes, the mortgagee might do so, and the amount paid should then become secured by the mortgage.</p> <p>Trusts — Conveyance of Title — Selection by Vendor.</p> <p>7. “Where the owner of a traet of land subject to a mortgage contracted to convey all except a certain quantity thereof to be selected by him to a trustee for a corporation which agreed to pay the mortgage out of the proceeds of sales of the land, the title to the reserved land after it was selected by the former owner was held by the trustee as a naked trust, and he can be compelled to convey the title to the former owner.</p>

From Klamath: George Noland, Judge. This is a suit hy the Clarinda Trust & Savings Bank, a corporation, against M. R. Doty. From a decree dismissing defendant’s answer in abatement and judgment for costs in favor of plaintiff, defendant appeals. Department 2. Statement by Mr. Chiee Justice McBride. This is a suit to foreclose a chattel mortgage given by defendant to secure thirty promissory notes made by him to the Lisle Manufacturing Company, of Clarinda, Iowa.

From Clackamas: James U. Campbell, Judge. This is an action by Edward Summerfield, administrator, against the Southern Pacific Company, a corporation. Judgment for defendant and plaintiff appeals. Department 2. Statement by Mr. Chief Justice McBride.

From Josephine: Frank M. Calkins, Judge. Department 1. Statement by Mr. Justice Harris. The relative rights to the waters of Sucker Creek and its tributaries were determined by the state water board pursuant to the provisions of Sections 6635 to 6671 L. 0. L., inclusive, and Mary Ellen Leonard has appealed from the decree of the Circuit Court approving the findings made by the state water board.

From Multnomah: T. E. J. Durey, Judge. This is a suit by Martin Johnson, J. F. Shea and others against Josephine Paulson, W. J. Clemens, trustee, and others, for the foreclosure of mechanics’ liens. From a decree of foreclosure, the named defendants appeal. The respondent, J. F. Shea, files motion to dismiss the appeal as to him. In Banc. Statement by Me. Justice Habéis.

<p>Jury — Disqualification—Taxpayer—County as Nominal Party.</p> <p>1. Under Section 575, L. O. L., relative to costs in suit by one person in the right of another, in an action by a county, for the use and benefit of an employee on highway work, against the contractor for such work and the surety on its bond, in the absence of bad faith, costs should not be awarded against the county, a nominal party,^ but, in the event of defeat, against the real party in interest, and such condition did not disqualify taxpayers of the county as jurors.</p> <p>Appeal and Error — Review—Presumptions—Overruling Motion for Change of Venue.</p> <p>2. "Where defendants asked for a change of venue, and the defendants’ supporting affidavit was opposed by counter-affidavits on behalf of plaintiff, but such affidavits are not contained in the bill of exceptions, the Supreme Court cannot review the ruling of the trial court on the motion, as it must be assumed that it exereised its discretion properly in overruling the motion, and its action will not be disturbed, unless an abuse of the discretion is clearly shown.</p> <p>Highways — 'Contracts—Bond—Liability to Materialmen — Statute.</p> <p>3. That labor and materials were supplied to the contractor with a county for highway work not directly, but through a subcontractor, does not permit the contractor to escape liability therefor, under Section 6266, L. 0. L., as amended by Laws of 1913, page 59, relative to bonds by contractors on public works, and under its contract and bond, requiring that it pay all laborers, mechanics, subcontractors and materialmen, and all persons who should supply such laborers, mechanics or subcontractors with materials, supplies or provisions for carrying on the work, since the bond of the contractor inures to the benefit of laborers working for a subcontractor.</p> <p>Highways — Contracts—Bond—Liability to Materialmen — Statute.</p> <p>4. Material, supplies, labor furnished for incidental repairs on machinery used by a contractor on highway work for a county, and blacksmith’s services were covered by both. Section 6266, L. O. L., as amended by Laws of 1913, page 59, relative to bonds by contractors on public works, and by the contractor’s bond, providing that the contractor pay all laborers, mechanics, subcontractors, material-men and all persons who should supply such laborers, mechanics or subcontractors with materials, supplies or provisions for carrying on the work.</p> <p>Counties — Contract for Public Work — Power to Require Bond.</p> <p>5. Public corporations, such as a county, though not expressly authorized by enactment, have the power to require bond from contractors for public work to pay for all labor and materials furnished in the performance of such work.</p> <p>Highways — Contracts—Bond—Assignment of Claims — Statute.</p> <p>6. Under Section 6266, Li. O. L., as amended by Laws of 1913, page 59, relative to bonds by contractors on public works, where a subcontractor on highway work for a county employed teamsters, who, before filing of an affidavit to procure a copy of the contract for the work and the contractor’s bond, assigned their claims to one of them, the latter’s right to enforce such claims against the contractor and its surety was not precluded; the filing of an affidavit by the claimant not being jurisdictional or a condition precedent, and the claims of laborers and materialmen being assignable.</p> <p>Highways — Contracts—Bond—Eight of Action of Materialman.</p> <p>7. The right of action, under Section 6266, L. O. L., as amended by Laws of 1913, page 59, against the contractor and the surety on its bond, of one furnishing labor and material to a subcontractor for the prosecution of highway work for a eounty, cannot be defeated by any act of the county officials, such as a change in the contract plan of work, or breach of the contract, or by any act of the contractor’s.</p> <p>[As to right of one furnishing labor or material to sue on bond given by contractor to property owner, see note in Ann. Cas. 1916A, 754.]</p> <p>Trial — Instructions—Repetition.</p> <p>8. The refusal of an instruction given in substance in the court’s charge was not erroneous.</p> <p>Principal and Agent — Estoppel to Deny Agency — Retention of Benefits.</p> <p>9. The contractor for highway work with a county, and the surety on its bond could not obtain and retain a release from employees of a subcontractor, and insist upon the benefits that might result therefrom, at the same time repudiating the acts and authority of the agents in obtaining the release.</p> <p>Counties — Contractor’s Bond — Construction.</p> <p>10. The rule of strictissimi juris does not apply to a surety company on a contractor’s bond, given under Section 6266, L. O. L., as amended by Laws of 1913, page 59, and the bond must be construed most strongly in behalf of the indemnity, which the obligee has good reason to expect, the surety company being bound by the recitals in the bond which it executed for a compensation.</p>

<p>Municipal Corporations — Improvements—Contractor’s Bond — Liability of Sureties — Failure to Pay Materialmen.</p> <p>1. Where, by a contract for street improvements, the contractor undertook to make all payments to all persons supplying labor or materials for the prosecution of the work, and agreed to "execute a bond to indemnify tbe city against all claims for work and materials furnished on account of any subcontractor, tbe contractor’s failure to pay for materials was a breaeh of the conditions of the contract and the bond for which the contractor’s sureties were clearly liable, the bond referring to the contract so as to make it a part thereof.</p> <p>[As to right of one furnishing labor or material to sue on bond given by contractor to property owner, see note in Ann. Cas. 1916A, 754.]</p>

From Coos: John S. Coke, Judge. This is an action hy C. R. Barrow and Z. C. Strang against School District No. 8, of Coos County, Oregon, a body corporate. Department 1. Statement by Mr. Justice Burnett.

<p>Fraud — Presumption.</p> <p>1. Fraud is never presumed, but must be proven.</p> <p>Insurance — Reformation of Fire Policy — Mistake.</p> <p>2. Where the vendee under an executory contract for the sale of land bargained and paid for a policy of fire insurance which would protect his interest, as vendee, but the policy, thoughtlessly and by oversight of the insurer’s authorized agent, was written in a form requiring absolute ownership in the insured, the latter was entitled to have a policy reformed in equity after loss to protect him, though he had not read the policy, and though the form of fire policies is statutory, the mistake being mutual, and fire policies being still subject to reform in equity, at least in the provisions which local agents are authorized to supply and modify.</p> <p>[As to reforming policies of insurance, see note in 65 Am. St. Rep. 514.]</p> <p>Insurance — Interest on Decree.</p> <p>3. In suit to reform a policy of fire insurance, wherein plaintiff secured reformation, and also judgment for the face of the policy, interest should run only from the date of the decree in the lower court.</p>

<p>Compromise and Settlement — Consideration.</p> <p>1. The parties tona fide considering a claim between them doubtful, its compromise cannot be attacked on the ground of invalidity of the claim.</p>

From Multnomah: George N. Davis, Judge. Department 2. Statement by Mr. Justice Moore. This is an action by Bissinger & Company, a corporation, to recover from the Massachusetts Bonding and Insurance Company, a corporation, $3,000, the amount of an indemnity bond issued by the defendant, to save the plaintiff harmless against loss by the larceny or embezzlement of Eugene Henle, one of its employees. From a judgment for the sum demanded in the complaint the defendant appeals.

Prom Clackamas: James U. Campbell, Judge. Department 1. Statement hy Me. Justice Buenett. This is a suit hy Theodore Hagenberger against the town of Milwaukie, a municipal corporation, and Samuel Riley, marshal of the town of Milwaukie, to remove a cloud from title. It arises out of an alleged assessment by the town of Milwaukie for the improvement of Front Street in that municipality. From a decree in favor of the plaintiff the defendants appeal.

From Lake: Bernard Daly, Judge. In Banc. Statement Per Curiam. This is an action by F. L. Williams against tbe Goose Lake Valley Irrigation Company, a corporation, to recover actual and exemplary damages alleged to have been sustained by tbe construction of a ditcb across tbe plaintiff’s land without securing.bis consent or condemning a right of way for tbe conduit. From a judgment for plaintiff in tbe sum of $500, the defendant appeals.

<p>Mortgages — Rights of Mortgagee — Reimbursement for Services.</p> <p>1. A mortgagee in possession of mortgaged realty cannot collect pay for services rendered by him in earing for or improving the property.</p> <p>Mortgages — Redemption—Interest—Pleading.</p> <p>2. In an action to have a deed declared to be a mortgage and to fix amount required to redeem, a complainant, alleging that mortgagee took possession of the premises under obligation to apply rents due upon the mortgage indebtedness, concluded plaintiffs as to amount of interest and entitles defendant to interest computed at rate stipulated in mortgage.</p> <p>Appeal and Error — Review—Necessity of Appeal.</p> <p>3. Where a litigant did not appeal from decree of trial court allowing insufficient amount of interest, the same cannot be modified in his favor on appeal.</p> <p>Interest — Mortgages—Amount Required to Redeem — Compound Interest.</p> <p>4. Mortgagee on redemption is not entitled to interest upon interest, and henee is not entitled to interest on amount of delinquent interest due when he took possession.</p> <p>Mortgages — Rights of Mortgagee — Reimbursements for Permanent Improvement.</p> <p>5. A mortgagee in possession of mortgaged premises is bound to keep the property in as good condition as when he took possession and is entitled to reimbursement for expenses thus incurred upon redemption, bu.t he is not entitled to any reimbursement for permanent improvements made by him without consent or direction of mortgagor, although such improvements run with the land.</p> <p>[As to duties and liabilities of mortgagee in possession, see note in 4 Am. St. Rep. 69.]</p> <p>Mortgages — Rights of Mortgagee — Reimbursements for Permanent Improvements.</p> <p>6. Under the rule that a mortgagee who acted in good faith and believed himself to be owner in fee is entitled to reimbursement for permanent improvements which increase value of the property, a mortgagee, who in his answer alleges facts showing that his claim was under the mortgage, cannot claim reimbursement for permanent improvements.</p> <p>Mortgages — Rights of Mortgagee.</p> <p>7. Under Section 335, L. O. L., declaring that a real estate mortgage shall not be deemed a conveyance so as to enable the mortgagee to recover possession without foreclosure, knowlelge is imputed to mortgagee that under statutes and established law of the state he cannot acquire title without foreclosure or absolute conveyance.</p> <p>Mortgages — Conveyance in Lieu of Foreclosure — Requisites.</p> <p>8. A conveyance of mortgaged realty by the mortgagor to the mortgagee to dispense with foreclosure and vest title in mortgagee must be a deed executed with statutory formalities and without any condition permitting redemption.</p> <p>Mortgages — Deed as Mortgage — Right of Grantee — Reimbursement for Improvements.</p> <p>9. A mortgagee, to avoid expense of foreclosure, agreed with mortgagor to extend time of redemption for period of four years, in consideration of execution of absolute deed. Held, such deed was in effect a mortgage, and mortgagee not entitled to recover reimbursements for fireproof vaults and other improvements made on property while in possession.</p> <p>Evidence — Admissibility—Writings of Deceased Persons.</p> <p>10. Under Section 790, L. O. L., providing that entries, or writings of a deceased person made against his interest may be admissible in evidence, entries by-plumber in his books of account showing amount due him from patrons are entries in favor of Ms interest and not ad-, missible.</p> <p>Evidence — Documentary Evidence — Copies—Writings of Deceased-Persons.</p> <p>11. An unverified transcript of books of account of deceased person showing declarations in favor of his interest are not admissible in evidence under Section 790, L. O. L.</p> <p>Evidence — Admissibility—Receipts—Hearsay.</p> <p>12. Receipts of third parties constitute hearsay and are not to be received in evidence.</p> <p>Mortgages — Rights of Mortgagee — Reimbursements for Repairs— Evidence.</p> <p>13. In action to fix amount required, to redeem a mortgage, a mortgagee in possession cannot recover for repairs, where the only evidence to show cost of such repairs consists of unverified statements taken from the books of the person who made the repairs, and has since died, and receipts signed by such deceased person.</p> <p>Appeal and Error — Review—Evidence Received Without Objection.</p> <p>14. Error cannot be urged to admission of incompetent evidence received without objection.</p> <p>Mortgages — Foreclosure—Personal Decree.</p> <p>15. In an action by heirs of mortgagor to have court determine amount required to redeem from mortgage, where the pleadings raised no issue of any promissory note or other personal obligation of plaintiffs, a personal decree against plaintiffs for amount remaining due on mortgage is unwarranted and erroneous.</p>

From Clatsop: James A. Eakin, Judge. Department 1. Statement by Mr. Justice Harris. C. N. Bennett is prosecuting this suit against Ms wife Emma K. Bennett for the purpose of establishing a partnersMp between them and to secure a decree marshalling and dividing the alleged partnersMp assets.

From Multnomah: Robert GL Morrow, Judge. Writ of review by Ah Poo and others against John H. Stevenson, municipal judge, and others. From a judgment in favor of plaintiffs, defendants appeal. Department 2. Statement by Mr. Justice Bean. The plaintiffs obtained the issuance of a writ of review from the Circuit Court to review the judgment of the municipal court of the City of Portland wherein the plaintiffs were prosecuted for the violation of a city ordinance.

From Coos: John S. Coke, Judge. Department 2. Statement by Mr. Justice McBride. This is a suit to quiet title to certain real property in Coos County, Oregon. Tbe plaintiffs Stadelman and Fletcher are the children of Charles W. Fletcher, who died in Coos County, in January, 1897, and the other plaintiff claims a half interest in the property by virtue of a deed from Mrs. Stadelman and her brother to him.

<p>From Multnomah: Calvin U. Gantenbein, Judge.</p> <p>This is an action by Adolphus Lane against W. F. Ball, E. E. Farrington, C. H. Farrington, C. M. White and John B. Coffey.</p> <p>From a judgment in favor of defendants, plaintiff appeals.</p> <p>Department 1. Statement by Mr. Chief Justice Moore.</p> <p>The complaint in this action was filed February 23, 1915, and alleges in effect that the defendants E. E. Farrington, C. H. Farrington and C. M. White are and at all the times stated were attorneys at law and engaged in the practice of their profession at Portland, Oregon, and are financially interested in a judgment which they secured in the Circuit Court of the State of Oregon for Multnomah County in favor of the defendant W. F. Ball and against the plaintiff Adolphus Lane; that the defendant John B. Coffey is the county clerk of that county and ex-officio clerk of that court:</p> <p>“That on or about the 15th day of February, 1913, the said defendants, E. E. Farrington, C. H. Farrington, C. M. White and W. F. Ball, acting jointly and illegally and for the wrongful and unlawful purpose of extorting money from this plaintiff and unlawfully compelling plaintiff by and through wrongful and unlawful means and methods to pay over money to said defendant Ball, and his said attorneys and without any order or leave of the above court, or judge thereof, in the premises, did wrongfully, unlawfully and maliciously solicit, procure and induce the said defendant John B. Coffey, then being and acting as clerk of the said circuit court as aforesaid, unlawfully to issue a warrant for the arrest and imprisonment of the above plaintiff, and that the said John B. Coffey, as clerk of the above circuit court as aforesaid, unlawfully acting under and upon the solicitations, inducements and advice of his co-defendants, and in furtherance of the aforesaid unlawful purpose of his co-defendants, did on the 15th day of February, 1913, unlawfully and in violation of the statutes of the state of Oregon, and without any leave or order of the above court or any judge thereof so to do, and in violation of plaintiff’s rights in the premises, issue an execution order directing the sheriff of Multnomah County, Oregon, to arrest and imprison the above plaintiff Adolphus Lane, in the county jail of Multnomah County, Oregon, until he should pay certain sums of money then claimed to be due to defendant W. F. Ball and his said attorneys, upon a certain judgment of the above court, or be otherwise discharged.”</p> <p>That Coffey wrongfully and unlawfully caused such execution forthwith to be delivered to such sheriff who pursuant thereto arrested the plaintiff February 15, 1913, and committed him to the jail of that county where he remained until March 24, 1913, when he was discharged by order of such court which held that the writ under which he was apprehended and imprisoned was illegal and void, and issued without authority of law, and thereupon canceled such warrant, from which judgment no appeal was taken, and the order has become final; that statements concerning the plaintiff’s arrest and imprisonment were published in the press, and became generally known to, and were discussed by his friends and acquaintances, thereby injuring his credit, reputation and social and business standing, causing mental strain and anguish, to his damages in the sum of $10,000 for which judgment was demanded. The day the complaint was filed, a summons regular in form was issued and delivered to the sheriff of that county, having noted thereon the following direction, addressed to such officer and subscribed by plaintiff’s counsel, as sanctioned in suits in equity: Section 398, L. O. L. Omitting the address and signature, the direction reads:</p> <p>“You will please serve a copy of summons upon all defendants herein, and only one copy of complaint, which is to be served upon defendant O. M. White.”</p> <p>The return of the sheriff shows that he served the summons within that state and county by personally delivering a certified copy thereof to each of the defendants, naming them, and that at the same time and place and in the same manner he also delivered to White a certified copy of the complaint. Ball, E. E. Farrington, C. H. Farrington and Coffey, jointly appearing specially on March 5,1915, moved to quash the summons and the attempted service thereof as to them, on the ground that no copy of the complaint had been delivered to either. White at the same time, alone appearing specially, moved to quash the summons and the service thereof as to him, for that only one copy of the complaint was served. A second summons was issued March 9, 1915, and served the next day upon Ball, the two Farringtons and Coffey, to each of whom was delivered a certified copy of the complaint. The court on March 15,1915, sustained the motions referred to, and quashed the first summons and the service thereof as to each of the defendants. Thereupon a third summons was issued and served March 15, 1915, upon White to whom was also delivered a certified copy of the complaint. All the defendants except White, jointly appearing specially March 19, 1915, moved to quash the second summons, attempted to be served upon them, for that the return of the first summons did not state that they were or either of them was not found, and that when the second summons was issued there was then pending in such court and undetermined motions to quash the first summons and the service thereof. WTrite on March 26, 1915, alone appearing specially moved to quash the third summons and the service thereof on substantially the same grounds as last stated. The court on March 29,1915, quashed the second and third summons and the service thereof, and at the same time made an order permitting the issuance of another summons. Pursuant to such authorization a fourth summons was issued March 30, 1915, and served the same day upon each of the defendants to whom was also delivered a certified copy of the complaint. On April 9, 1915, Ball and Coffey separately, and the other defendants jointly, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that the action had not been commenced within the time limited therefor. Each of these demurrers was sustained April 12, 1915. The plaintiff’s counsel on the 5th of the next month moved to vacate all the previous rulings made in this cause and for an order directing each of the defendants to file an answer to the complaint. This motion was denied May 24, 1915, the order reciting the overruling of the demurrers, “and that plaintiff has failed to further plead in this action,” and concluding as follows:</p> <p>“Now, therefore, it is considered and adjudged by the court that defendants go hence without day, and recover of the plaintiff their costs and disbursements herein expended, taxed at $13.65.”</p> <p>From this judgment the plaintiff appeals.</p>

From Lake: Bernard Daly, Judge. In Banc. Statement by Mr. Justice Bean. Tommy Morris and Martin Anchoberry were jointly indicted for the crime of murder committed while engaged in the commission of larceny in a dwelling-house. Morris was separately tried and convicted and he appeals.

<p>Bills and Notes — Duress.</p> <p>1. Where the principal stockholder of a bank, by means of forgeries and fictitious notes, depleted the bank’s funds so that it became insolvent, and officers of the bank went to the stockholder’s wife, who, understanding from what they said, though no actual threat was made, that her husband’s prosecution would ensue, unless his defalcation was made good through her assistance, executed certain notes to make good the defalcation, such notes were void, or at least voidable at the wife’s option.</p> <p>ON REHEARING.</p> <p>Husband and Wife — Deeds—Consideration.</p> <p>2. Ten thousand dollars advanced by the officers of the bank to assist it to carry on business was not in itself sufficient consideration to uphold the wife’s conveyance of property to them; illegal transactions are such, though a portion of the consideration is legal.</p> <p>Deeds — Duress.</p> <p>3. Where the chief stockholder of a bank stole funds from it and purchased property, and the bank’s officers, by threatening her husband with prosecution, induced tbe wife to execute conveyances of tbe property, tbe wife was not entitled to cancellation of tbe conveyances as procured by duress.</p> <p>[As to recovery of money paid under duress, see note in 94 Am. St. Rep. 419.]</p>

From Multnomah : Calvin U. Gantenbein, Judge. Henry Roth and Ulrich Michel, trustees, and Frank H. Brown brought a suit against the Troutdale Land Company, a corporation, Joseph Mossi and others.to foreclose a second mortgage on certain described lands in Multnomah County. From a decree in favor of plaintiffs the named defendants appeal. Department 2. Statement by Mr. Justice Bean.

From Multnomah: William N. Gatens, Judge. Department 2. ■ Statement by Mr. Justice Mooee. This is a suit by Joseph R. Bowles, Fred H. Roth-child and Frederick S. Stanley against Calvin U. Gantenbein to enjoin the prosecution of an action which defendant instituted against the Willamette Building & Realty Company, an Oregon corporation, and to secure the discharge of a levy of an attachment issued in that action.

From Tillamook: George E. Bagley, Judge. Suit by W. L. Provoost against Mary J. Cone. In tbe lower court defendant secured a decree in ber favor and plaintiff appeals. Department 2.

<p>Railroads — Terminals—Authority to Extend — Powers Conferred by Charter.</p> <p>1. A railroad company chartered to construct a line of railroad from one city to another is empowered to extend its lines to convenient points within these cities. The definite location by such 'a railroad of its terminals does not exhaust its charter powers; it may extend its terminals from time to time to keep pace with the industrial expansion of the city.</p> <p>[As to meaning of “locate” or “located” as applied to railroad, see note in Ann. Cas. 1912C, 1309.]</p> <p>Railroads — Common User Clause in Ordinance — Construction—Eminent Domain — Condemnation of Limited Easement.</p> <p>2. The common user clause contained in the ordinance of a municipal corporation authorizing the bridging of a navigable river should receive a liberal construction. Such common user is available to a railroad company which desires the user only for the purpose of switching freight ears into an industrial district remote from its terminals. A proceeding fixing the compensation to be paid for sueh user is analogous to a condemnation proceeding, inasmuch as the rights of the junior company are conditioned on the payment of adequate compensation. As a limited easement may be condemned, under the law of eminent domain, so a railroad company may avail itself of the common user clause to secure a limited use of the bridge.</p> <p>Railroads — Use of Bridge Owned by Other Railroad — Railroad Commission — Presumptions.</p> <p>3. The presumptions are in favor of an award by the Railroad Commission sitting as a board of arbitration to determine what compensation a railroad which built a bridge is entitled to for the common use of such bridge by another road under a common user clause of the city authorizing the building of the bridge.</p> <p>Trial — Consent to Consideration of Testimony.</p> <p>i. Where defendant saw fit to go into a certain subject in the trial court, it must be held to have given its consent to the consideration by the court of the testimony adduced on that subject.</p> <p>Arbitration and Award — Setting Aside — Mistake by Arbitrators.</p> <p>5. Award of arbitrators should be set aside whenever it appears on the face of the award or otherwise by testimony properly received in suit to set the award aside and does not express their real judgment, particularly where the award involves compensation for a continuing right, in which case a mistake, otherwise not remediable, may well become a gross mistake vitiating the award.</p> <p>Railroads — Use of Bridge Owned by Other Railroad — Award of Railroad Commissioners — Suit to Set Aside — Evidence.</p> <p>6. In suit to set aside an award of the Railroad Commission sitting as arbitrators to determine the compensation of a railroad which built a bridge for its use by another road, evidence held to sustain finding that the award so entirely disregarded, mistook and misapplied the evidence introduced at the hearing before the commissioners as to deprive plaintiff road of its rights in the bridge, and of its rights in the ordinance of a city authorizing its building and containing a common user clause and in the resolution and order of the Secretary of War authorizing the bridge.</p> <p>Arbitration and Award — Suit to Set Aside — Resubmission.</p> <p>7. In suit to set aside an award of arbitrators, in the absence of agreement by the parties, the court is not authorized to resubmit a question to the board of arbitrators.</p> <p>Railroads — Use of Bridge Owned by Other Railroad — Award of Railroad Commissioners — Suit to Set Aside — Determination of Question Arbitrated.</p> <p>8. In suit to set aside an award of the Railroad Commission sitting as arbitrators to determine the compensation to which a railroad which built a bridge was entitled for its use by another road, where the answer of such other road asked general equitable relief, the court, having set aside the award as inadequate, should proceed to determine the reasonable compensation to be awarded.</p> <p>Railroads — Charge for Common Use of Bridge Under Ordinance by Junior Company.</p> <p>9. A railroad company seeking a limited use of a bridge built by .another carrier, pursuant to a port ordinance providing for common user, should be charged with a substantial part of the annual interest charge on the capital invested therein. Such junior company should also pay such part of the annual charges for operating, maintenance, taxes and depreciation as the traffic of the junior company bears to the entire traffic on the bridge.</p> <p>Arbitration and Award — Suit to Set Aside — Decree—Stipulations.</p> <p>10. Where the parties to a suit to set aside an award of arbitrators agreed before the arbitrators on stipulations modifying the common-law rules of liability in the matter which the arbitration concerned, such stipulations, incorporated in the award, should be made .part of the decree setting it aside and correcting its errors.</p> <p>Railroads — Charge for Use of Bridge — Modification of Decree.</p> <p>11. A decree fixing the compensation to be paid by a junior company for the use of the senior company’s bridge, built under an ordinance providing for common user, should give leave to the senior company to apply for a modification of the compensation in case a third company now using the bridge should cease to use it. The junior company should have the same right to apply for a modification in case one or more additional companies should secure the right to use the bridge.</p> <p>Appeal and Error — Disposition—Remand to Take Further Testimony.</p> <p>12. In such suit, where it was extremely difficult in the condition of the record to appraise fairly the value of the realty covered by the abutments and approaches to the bridge, the cause should be remanded to the trial court for a hearing on the subject, both parties to be privileged to introduce further testimony.</p> <p>ON PETITION FOR REHEARING.</p> <p>Arbitration and Award — Suit to Set Aside Award — Admissibility of Evidence — Testimony Taken before Arbitrators.</p> <p>13. In a suit to set aside" an award by arbitrators on the ground that because of mistake the award did not represent the judgment of the arbitrators, the evidence taken before the arbitrators is competent and material.</p> <p>"Witnesses — Reception of Evidence — Redirect Examination — Scope of Cross-examination.</p> <p>14. Where defendant, on cross-examination, of a witness whose direct examination was confined to the identification of testimony considered by arbitrators, drew out testimony as to the award and what the arbitrators intended to decide, the cross-examination justified redirect examination of the witness on the same subject and foreclosed any objection which might otherwise have been urged to the competency of the evidence.</p> <p>Carriers — Use of Bridges — Determination of Compensation — Evidence —Contract for Similar Use.</p> <p>15. On proceedings to determine the compensation to be paid by one railroad for the use of a bridge constructed by another under a city ordinance requiring it to permit the user on payment of compensation,' contracts fixing the terms under which different railway companies used bridges of others which failed to show a uniform practice in that respect are immaterial.</p> <p>Arbitration and Award — Use of Railroad Bridges — Determination of Compensation — Evidence—Volume of Traffic.</p> <p>16. In a suit to set aside an award of arbitrators of compensation to be paid by one railroad for the use of a bridge constructed by another, exhibits showing the number of cars switched by the owner of the bridge for the other railroad during certain periods, which included cars switched to a point across the river at which the using railroad had no terminal and covered' the period when it was acquiring its main terminal across the river, and which did not include freight carried by the using railroad in less than carload lots and team freight which could not be switched, are of no value in showing the volume of the traffic of the using railroad across the bridge from whieh compensation for the use could be determined.</p> <p>Carriers — Use of Bridges — Compensation—Fixed. Charges.</p> <p>17. A railroad owning a bridge which it was required to permit 'other railroads to use is entitled to a fair share of the charge for operation and maintenance of the bridge and of the interest on the ■investment, regardless of fluctuations of railway traffic, so that the fact that the award of arbitrators fixed an adequate charge for each car hauled across the bridge does not show that the compensation awarded by them was adequate.</p> <p>Arbitration and Award — Suit to Set Aside — Fraud and Mistake.</p> <p>18. The rule that a judgment of the chancellor cannot be substituted for that of arbitrators does not prevent courts of equity from setting aside awards of arbitrators for fraud or mistake.</p> <p>Arbitration and Award — Suit to Set Aside — Evidence—Facts Subsequent to Award.</p> <p>19. In a suit to set aside an award of arbitrators on the ground of mistake, affidavits showing facts subsequent to the award have no bearing on the question of whether it should be set aside, but may be considered by the court at the hearing after the award has been vacated.</p> <p>Appeal and Error — Rehearing—Matter not Argued on Original Hearing.</p> <p>20. Where at the original hearing on appeal a decree setting aside an award by arbitrators was affirmed and compensation for the use of a railroad bridge by another railroad was determined by the court, which compensation included a' requirement that the using railroad should pay a specified per cent of the interest charged on the cost of the bridge, on which question there was no argument in the court below or on the original hearing, the original opinion will be withdrawn as to that provision and the cause remanded to the lower court for a hearing thereon.</p>

From Multnomah: William N. Gatens, Judge. This is an action by D. B. Ulbrand against J. E. Bennett and Alan Welch Smith, in which plaintiff recovered judgment and Alan Welch Smith alone appeals. Department 1. Statement by Mr. Justice Burnett.

From Yamhill: Harry H. Belt, Judge. Action by T. L. Van Orsdol against B. J. Hutchcroft to recover commission alleged to he due on a real estate deal. From a verdict for the defendant, plaintiff appeals. Department 2. Statement by Mr. Justice Moore. This is an action to recover an alleged commission for negotiating an exchange of property.

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Harris. The plaintiff Lyle B. Speer appealed from an order granting a new trial after he had obtained a judgment on a promissory note against the defendants O. H. Smith and Josephine V. Smith.

From Multnomah: William N. Gatens, Judge. L. F. Gerdetz instituted this suit against the Central Oregon Irrigation Company, a corporation, to set aside a decision of arbitrators and from an adverse decree, plaintiff appeals. Department 1. Statement by Mr. Justice Burnett. The plaintiff contracted with the defendant to construct for the latter in the Deschutes River a dam and conduit therefrom.

Original proceedings in mandamus in Supreme Court. In Banc. Statement by Me. Justice Habris.

Prom Marion: William Galloway, Judge. Department 1. Statement by Me. Justice Habéis. John S. Dunlavy and Britt Aspinwall are adjoining land owners wbo purchased their respective tracts from M. L. Jones and his wife Emma H. Jones. This controversy involves a narrow strip of land about 18.42 chains in length, 16 links wide at one end and 18% links at the other and embraces 0.31 of an acre.

<p>From Multnomah: George N. Davis, Judge.</p> <p>In Banc. Statement by Mr. Justice Moore.</p> <p>This is a suit by Geo. R. Bagley against Moses Bloch, Bertha Bloch, and Multnomah County, a quasi-municipal corporation, to quiet title to real property. The plaintiff for cause of suit alleges that he is the owner of 12.22 acres of land in Multnomah County, Oregon, particularly describing ,the premises; that each of the defendants claims to have some right, title or interest in and to such realty, but that the claim of each is void.</p> <p>Multnomah County alone answering denied the material averments of the complaint, and for a further defense alleged, in effect, that on March 1, 1909, when the assessment for that year was required to be made as of that date, Melchior Kehrli was the owner of 4.12 acres of land in that county and Percy H. Blyth was also the owner therein of 33.88 acres, of which latter tract 8.2 acres and all of the former are included within the boundaries of the plaintiff’s realty; that the assessor of'Multnomah County duly assessed such lands for the year 1909 to the then owners; that based upon such valuation there was extended on the roll valid taxes which became liens on the premises; that these taxes were not paid and by reason thereof delinquency certificates were issued to the county, which corporation then became and now is the owner and holder thereof. It was further alleged that the suit should be abated for that the plaintiff had not deposited in court, upon filing his complaint, the amount of taxes properly chargeable to such real property.</p> <p>The reply put in issue the allegations of new matter in the answer, and also averred that the attempted assessment of the land for the year 1909 was void because the description of the realty as noted on the rolls and in the delinquency certificates was insufficient, and in consequence thereof no lien was created upon the real property and no necessity existed for tendering any sum of money whatever as a condition precedent to the right to maintain this suit. The cause was tried upon an agreed statement of facts, which, omitting the signatures of counsel for the respective parties, reads:</p> <p>“It is hereby stipulated and agreed by and between the plaintiff and the defendant, Multnomah County, that the following are the facts in this case, fully proven at the trial thereof:</p> <p>“(1) That the defendant, Multnomah County, is a political subdivision of the State of Oregon.</p> <p>“(2) That the plaintiff is the owner in fee simple and in the actual possession of the following described real estate, to-wit: That certain tract of land in Multnomah County, State of Oregon, bounded by a line run as follows: Beginning at a point on the half section fine running easterly and westerly through section 31, township 1 N., R. 1 E., W. M., 24 chains west of the quarter section corner between sections 31 and 32 in said township and range; thence north 736.25 feet to a point; thence westerly and parallel to said half section line 911.3 feet to the Cornell Road; thence southeasterly along said road to a point which is 285 feet north of said half section line through section 31; thence easterly along the north line of a certain two-acre tract conveyed to Multnomah County by deed recorded in Book 158 of records of the said County, at page 453 thereof, 66.05 feet more or less to the northeast comer thereof; thence southerly along the east line of said two-acre tract, 285 feet to the southeast corner thereof, and thence easterly 629.4 feet more or less to the place of beginning.</p> <p>“ (3) That the defendant, Multnomah County, claims a lien against said land adverse to the title of the plaintiff by virtue of certain tax certificates of delinquency issued for unpaid taxes for the year 1909, described hereafter.</p> <p>“ (4) That on the 1st day of March, 1909, Percy H. Blyth was the record owner of that piece or parcel of land located in Multnomah County, Oregon, and more particularly described as follows, to wit: Beginning 24 chains west and 285 feet north of the quarter section corner in the east line of section 31, township 1 North, range 1 Bast, Willamette Meridian; thence west 935.1 feet; thence south 285 feet; thence west 1440.9 feet; thence north 11.11 chains; thence east 36 chains; thence south 448.26 feet to beginning. That on the 1st day of March, 1909, Melchior Kehrli was the record owner of that piece or parcel of land located in Multnomah County, Oregon, and more particularly described as follows, to-wit: Beginning 24 chains west of the quarter section corner between sections 31 and 32, township 1 north, range 1 east, Willamette Meridian; thence north 89 degrees 22 minutes west 629.4 feet; thence north 0 degrees 18 minutes west 285 feet; thence south 89 degrees 22 minutes east 630.85 feet; thence south 285 feet to-the place of beginning.</p> <p>“(5) That thereafter the said Percy H. Blyth conveyed the east 8.2 acres of the above described land so owned by him to one N. Q. Tanquery, and the plaintiff has by mesne conveyances become the owner in fee thereof; that said east 8.2 acres aforesaid and said property owned in 1909 by Melchior Kehrli, as aforesaid, comprises the land of the plaintiff described in paragraph 2 of this stipulation.</p> <p>“(5i^.) That there is on file in the office of the Tax Collector of Multnomah County, Oregon, a book entitled Index to Taxpayers for the year 1909, which book contains an alphabetical index of all taxpayers of the county and in which reference is made to the holdings of Percy H. Blyth and Melchior Kehrli as follows, to-wit: Name of taxpayer, Percy H. Blyth, Tax roll, page 5009, line 42, Block Book, page 5749. Name of taxpayér, MelcMor Kehrli, Tax roll, page 5009, line 43, Block Book, page 5749.</p> <p>“ (6) That the assessment tax roll for the year 1909, Multnomah County, Oregon, on file in the office of the tax collector of said county, contains the following entries with reference to the respective holdings of Percy H. Blyth and Melchior Kehrli, to-wit: At tax roll, page 5009, line 42: ‘Tax lot No. 3; -name of taxpayer, Percy H. Blyth; section 31, township 1 north, range 1 east; No. of acres of land, 33.88; valuation of land, $5,000, total tax, $45.50; No. of receipt, 31540; date of payment, 3/15/10, $34.07; delinquent $11.42; No. of certificate, 242.’ (Heading, ‘Description of land,’left blank.) At tax roll, page 5009, line 43: ‘Tax lot No. 4; name of taxpayer, Melchior Kehrli; section 31, township 1 north, range 1 east; No. of acres of land, 4.12; value of land, $600; total tax, $5.46; delinquent $5.46; No. of certificate, 243.’ (Heading, ‘Description of land,’ left blank.)</p> <p>“(7) That there is a book known as the ‘Division Book’ on file in the office of said Tax Collector, in which appears an entry as follows, to-wit: ‘Tax roll, page 5009, line 42, Percy H. Blyth, 25.18 acres; N. Q. Tanquery, 8.2 acres. ’ That the land of the plaintiff is not otherwise attempted to be assessed for said year.</p> <p>“ (8) That there is on file in the office of the County Assessor of Multnomah County, Oregon, a hook entitled as follows: ‘1908-1911. Block Book Acreage North.’ That contained in said book are the following entries for the year 1909, to-wit: ‘Section 31, township 1 N., Range 1 E.; Tax List No. 3; Beg. 24 chs. W. and 285 minutes N. of y4 Sec. Cor. in E. line of Sec. 31, thence W. 935.1 minutes, thence S. 285 minutes, thence W. 1440.9 minutes; thence N. 11.11 chs., thence E. 36 chs., thence S. 448.26 minutes to beg.; page 5749; No. acres, 33.88; value of land, $5,000; value of improvements -. Section 31, Township 1 N. Range 1 E. Tax List No. 4; Beg. 24 chs. W. of 14 Sec. Cor. between Sect. 31 and 32, thence N. 89 degrees 22 minutes W. 629.4 minutes; thence N. 0 degrees 18 minutes W. 285 minutes; thence S. 69 degrees 22 minutes E. 630.85 minutes; thence S. 285 minutes to beg.; page 5749; No. acres, 4.12; value of land, $600; value of improvements, $-.’ That this so-called Block Book is one of the series of similar books on file in the office of the County Assessor of Multnomah County, containing in detail a description of all of the taxable real estate within the county for the years 1908 to 1911.</p> <p>“(9) That delinquent certificate No. 242 gives the name of the taxpayer as Percy H. Blyth, description of property assessed as ‘Tax Lot No. 3, section 31, township 1N. E. 1 E., 8.2 acres, valuation $1,255, tax $11.43, total $18.10,’ and no other or further description of land is given in said certificate.</p> <p>“(10) That delinquent certificate No. 243 gives the name of the taxpayer as Melchior Kehrli, designation of property assessed as ‘Tax lot No. 4, section 31, township 1 N. E. 1 E., 4.12 acres, valuation $600, tax $5.46, total tax $8.90,’ and no other or further description of said land is given.</p> <p>“ (11) That the county has begun suit for the foreclosure of said certificates Nos. 242 and 243 and has secured a decree accordingly; that said certificates are described in said suit to refer to the following lands, viz.: No. 242, Frac, lot 3, sec. 31, T. 1 N. E. 1 E. 8.2 acres. No. 243, lot 4, sec. 31, T. 1 N. E. 1 E. 4.12 acres. That the decree in said foreclosure suit describes the said property in the same manner and decrees the foreclosure of said certificates on the land by the same description.</p> <p>“(12) That the plaintiff at the time of the commencement of this suit was, and ever since has been, and now is a resident of Hillsboro, _ Washington County, Oregon, and was actually in said state; that no summons or other process in said cause was served upon him personally, but subsequent to the filing of said suit a summons was published by order of the court for six consecutive weeks (seven insertions) in the Sunday Welcome, a newspaper of general circulation published in this county and state.</p> <p>“(13) That the same form of assessment and the same description as in paragraphs 6 and 8 is contained in the assessment-roll of Multnomah County, Oregon, for the year 1908, and the tax against the property of said description of $23.73 against property described as lot 3 of said section 31, was by the tax collector applied on delinquent certificate No. 242.</p> <p>“(14) That the land of the plaintiff described in paragraph 2 is a part of the northeast quarter of said section 31 and is not and never was platted or designated as lots 3 and 4, or any lot or lots whatever, by the government or the owner (and was not known by such numbered lots, or otherwise or at all, except as described in this stipulation, in the so-called Block Book of 1909); that the remainder of said quarter section of land is owned in several separate tracts and by divers and sundry .persons not parties to this suit.</p> <p>“(15) That neither prior to the commencement of this suit nor at any other time, nor at all, has the plaintiff herein, nor his predecessors in interest, nor any person, nor at all, tendered or offered to pay the said alleged taxes levied upon said property for the year 1909, mentioned in paragraph 6 of this stipulation.”</p> <p>Founded upon such stipulation, conclusions of law were deduced as follows:</p> <p>“That the assessment made and entered against the property of the plaintiff as set out in his complaint by the assessor of Multnomah County for the year 1909 was lawful, valid, and regular, and the taxes extended thereon became a lien against the property until paid; that the county of Multnomah as owner and holder of the certificate of delinquency issued against said property is entitled to a lien against said property for the amount of the taxes and accrued interest, penalties, and costs; that the defendant, Multnomah County, is entitled to a decree of this court dismissing the suit of the plaintiff so far as it pertains to the said county of Multnomah.”</p> <p>A decree having been entered in accordance therewith the plaintiff appeals.</p>

From Lane: George F. Skipworth, Judge. This is a suit, by Eugenie Hoffman, Edith M. Swan-ton and Helen H. Hoffman against George B. Dorris. From an adverse decree plaintiffs appeal. Department 1. Statement by Mr. Justice Benson. This is a suit to enjoin the obstruction of an alley or right of way which is claimed by the plaintiffs to be appurtenant to certain real property owned by them.

From Multnomah: Calvin U. Gantenbein, Judge. Department 2. Statement by Mr. Justice Moore. This is a suit by the Western Union Telegraph Company against T. M. Hurlburt to enjoin the collection of an alleged tax.

From Wasco: William L. Bradshaw, Judge. F. E. Strang and the North British & Mercantile Insurance Company, a corporation, commenced an action against the Oregon-Washington Railroad & Navigation Company, a corporation. Plaintiffs recovered judgment and defendant appeals. Department 1. Statement by Mr. Justice Burnett.

<p>Insurance — Benefit Insurance — By-laws.'</p> <p>1. By-laws of a fraternal benefit insurance society, providing that local officers shall be considered as agents of the members in accepting and transmitting payments for insurance, and that all acts of a local officer shall be construed as having been done for the members and applicants for membership, are valid.</p> <p>Insurance — Benefit Insurance — Eights of Divorced Wife.</p> <p>2. Where plaintiff was named as beneficiary in a policy of insurance on the life of her husband, a divoree did not deprive her of her right to recover the full value of the policy in event of the death of her husband prior to his withdrawal from the order.</p> <p>Insurance — Benefit Insurance — Eight of Member to Withdraw.</p> <p>3. As the duties ineumbent upon a member of a voluntary association by reason of his membership are purely voluntary, unless the agreement between the members provides to the contrary, a member may withdraw at any time without the consent of the association or of the beneficiary in a life policy issued to him by the association.</p> <p>Insurance — Benefit Insurance — Rights of Beneficiary — Withdrawal of Insured.</p> <p>4. Where the beneficiary in a policy of fraternal insurance on the life of her husband assumed the payment of premiums at the time of a divorce under an agreement with the local financial secretary, who by the terms of the poliey and by-laws was the agent of the members, and paid the premiums until the policy was canceled upon the rightful withdrawal of the husband from membership in the order, the moneys received by the order were earned premiums upon a valid contract of insurance, which the beneficiary had no right of action against it to recover.</p> <p>[As' to the law generally of beneficial associations, see note in 19 Am. St. Rep. 781.]</p>

From Lincoln: Jambs -W. Hamilton, Judge. This is a suit by Reuben Prouty against Catherine Burroughs. There was a decree for plaintiff and defendant appeals. Submitted on brief of appellant. In Banc. Statement by Mr. Justice Burnett.

<p>Pleading — Amendment of Complaint.</p> <p>1. Where the original complaint was supplanted by an amended complaint on which the action was tried, the original complaint cannot be considered in aid of plaintiff’s case.</p> <p>Appeal and Error — Adequacy of Complaint — Questioning in Supreme Court.</p> <p>2. The adequacy of plaintiff’s statement of his cause of action in his complaint may be questioned for the first time in the Supreme Court.</p> <p>Pleading — Denial of Answer — Effect.</p> <p>3. An averment of defendant’s answer, denied by plaintiff’s reply, is of no eflfeet by way of aider to the defects of the complaint.</p> <p>Pleading — Conclusions—Contract to Insure — Breach.</p> <p>4. In an action for damages resulting from breaeh of an alleged executory contract to insure property, plaintiff’s amended complaint, averring that the policy tendered by defendant “did not conform to the oral contract between the parties, and was not a complete performance of the said oral contract,” was insufficient, pleading a mere conclusion of law and stating no fact; plaintiff should have disclosed the terms of the oral contract for insurance, and also, a policy having been issued, should have set forth the terms of the instrument, that the court might have been able to judge whether or not it was a fulfillment of the oral contract.</p> <p>Insurance — Contract to Insure — Breach—Pleading.</p> <p>5. In an action for breach of an executory oral contract to insure property, the amended complaint, stating that plaintiff accepted the policy issued by defendant through his ignorance of its legal effect, was insufficient to state a cause of action, since ignorance of the law will excuse no one.</p> <p>ON REHEARING-.</p> <p>Insurance — Fire Policy — Acceptance.</p> <p>6. Wh.ere insured accepted a fire policy which was not in accordance with the oral contract for insurance, he cannot, having retained it without objection, contend that the true contract should be found in the oral agreement, for it was supplanted by the written policy, and insured had no option to rely either on the policy or the oral agreement as he desired.</p> <p>[As to delivery and acceptance of policies of insurance, see note, in 138 Am. St. Rep. 29.]</p> <p>Insurance-^Fire Policies — Actions—Defenses.</p> <p>7. Where the policy issued pursuant to an oral agreement as to insurance did not follow the agreement, and it was alleged that the policy which should have been issued would have been subject to Laws of 1911, page 279, the insured cannot in an action to recover on the oral agreement independent of the policy recover where suit was not brought within the time limited by such law.</p>

From Multnomah: Bobert Gr. Morrow, Judge.- Action by John Wuchter against Charles Fitzgerald and Bobert' Fitzgerald to recover for labor. From a judgment in favor of plaintiff, defendants appeal. Department 1. Statement by Mr. Justice Benson. This is an action to recover for the value of services rendered.

From Multnomah: William N. Gtatbns, Judge. Action by Thomas Wike against the Oregon-Washington Railroad & Navigation Company, a corporation. Department 2. Statement by Mr. Justice Mc-Camant. This is an action brought to recover damages for a personal injury sustained by plaintiff while working for defendant on February 10, 1914. From a verdict and judgment for plaintiff an appeal is prosecuted.

From Lane: George F. Skipworth, Judge. Suit by Ida May Wicks against H. K. Metcalf and Andrew Brund. From a decree in favor of plaintiff, defendants appeal. Department 1. Statement by Mr. Justice Benson. This is a suit to enjoin tbe prosecution of a certain action at law as against the plaintiff.

From Multnomah.: William N. Gatens, Judge. The Metropolitan Investment & Improvement Company, a corporation, brought this suit against M. E. Schouweiler and T. M. Hurlburt, sheriff of Multnomah County. From a decree dismissing the complaint, plaintiff appeals. Reversed and decree entered in accordance with the prayer of the complaint. Department 2. Statement by Mu.

<p>Spendthrifts — Contracts for Necessaries — Liability of Estate.</p> <p>1. Section 1324, L. O. L., provides that, if a guardian shall be appointed, all contracts, excepting for necessaries, made by such spendthrift, shall be void. Section 1326 provides that a guardian so appointed shall have care' and custody of person of ward and management of all his estate, etc. Section 1327 requires guardian to pay all just debts due from ward out of ward’s estate. A guardian of a spendthrift provided him with sufficient money eaeh month to pay for necessaries. The ward purchased from petitioner articles of food which he consumed, but did not pay for, having squandered money furnished by the guardian. Held, that furnishing ward with money was not equivalent to furnishing him with necessaries, and that estate of ward was liable to petitioner for food furnished; the ward having under the circumstances power to contract for necessaries.</p> <p>[As to sufficiency of instrument to create spendthrift trust, see note in Ann. Cas. 1917B, 400.]</p> <p>Courts — Appealable Order or Decree — Rejection of Claim by County Court.</p> <p>2. An order of the County Court rejecting a claim against a spendthrift’s estate is appealable in view of Section 945, L. O. L., providing that provisions of Chapter 5, Title 7, (Sections 548-560), relating to appeals, are intended to apply to judgments and deerees of the County Courts in all cases.</p> <p>Courts — Circuit Court — Powers on Appeal from County Court.</p> <p>3. Under Section 559, L. O. L., providing that upon an appeal to the Circuit Court the manner of proceeding thereafter is the same as if the action had been commenced in such court, but if the appeal is from a decree of County Court, the appellate court may give a final decree in the cause or matter, the Circuit Court may enter judgment for claimant on appeal from an order of County Court rejecting claim against estate of a spendthrift.</p> <p>Appeal and Error — Extent of Review — Execution Issued by Clerk of Court.</p> <p>4. Where the judgment of the Circuit Court on appeal does not order execution to issue, the promulgation of such writ under Section 213, L. O. L., providing that the party in whose favor a judgment is entered may at any time after entry have a writ of execution, and Section 215, requiring clerk to issue such writ, is not a judicial function subject to review on appeal from judgment' of Circuit Court.</p>