Volume 86 — Oregon Reports

<p>Equity — Pleading—Multifariousness.</p> <p>1. A .bill by a minority stockholder against a corporation and the holders of the majority stock, alleging a series of frauds committed by the defendants through °control of the corporation, and praying for an injunction and money judgment, is not multifarious.</p> <p>Corporations — Minority Stockholder — Mismanagement — Eight of Action.</p> <p>2. The injury sustained by a minority stockholder in a mining company through improper manipulation of its funds by the controlling stockholder was consequential, and the right of action to recover the moneys taken was primarily in the mining company.</p> <p>Corporations — Exercise of Powers by- Directors — Dividends—Statute.</p> <p>3. Under Section 6691, L. 0. L., the powers vested in a corporation, including the declaration of dividends, are exercised by the directors.</p> <p>Corporations — Declaration of Dividends — Interference by Courts.</p> <p>4. The question of whether dividends shall be declared by a corporation is ordinarily one of its internal management, with which the courts will not interfere.</p> <p>Corporations — Dividends—Action of Directors.</p> <p>5. Directors must act honestly and with discretion in the performance of their duties; which principle applies to their action as to dividends, and in a cleaT ease equity will sometimes compel a corporation to declare a dividend.</p> <p>Corporations — Dividends—Stockholder—Eight of Action.</p> <p>6. A court of equity will refuse to treat a misappropriation of corporate funds by majority stockholders as an equitable declaration of a dividend when the complaining stockholder has not qualified himself to sue on behalf of the corporation, and when there is no showing that the financial condition of the corporation is sueh as to require the directors to declare a dividend.</p> <p>Corporations — Suit by Minority Stockholder — Complaint.</p> <p>7. Where the complaint of a minority stockholder in a mining company against the company, other companies, and an individual who controlled all the companies, did not purport to be brought on behalf of all stockholders similarly situated, and did not allege a demand on the board of directors to bring suit in the corporation’s name, and did not sufficiently excuse failure to demand action, the complaint did not state a cause of suit in the corporation’s right.</p> <p>[As to who may sue the corporation he holds stock in, see note in 97 Am. St. Eep. 50.]</p> <p>Corporations — Suit by Minority Stockholders — Presumption as to Action of Directors — Statute.</p> <p>8. The mere fact that directors are elected by the vote of a stockholder against whom suit should be brought for minority stockholders in the name of the company does not raise a presumption they will refuse to order suit brought, or0 will conduct it eollusively; the presumption being that the directors will do their duty under Section 6689, L. O. L., whereby they are sworn faithfully and honestly to discharge their duties.</p> <p>Corporations — Suit by Minority Stockholder — Failure to Demand That Directors Sue — Excuse.</p> <p>9. A minority stockholder, suing in the name of his company, if he would excuse failure to make demand on the directors, should name them, show that they are the guilty parties, or show sueh relationship to the guilty parties, by. blood, marriage, or business associations, as will justify the conclusion they will refuse to do their duty. A general statement that the company or its board is in control of the guilty party will not suffice-. If plaintiff has no information as to who the directors are, -he should allege aets showing diligence on his part to secure the information, and the obstacles interposed by defendants.</p> <p>Corporations — Suit by Minority Stockholder.</p> <p>10. A minority stockholder in a corporation in a proper case may sue on behalf of the corporation, but this right is liable to abuse and should be limited by adherence to those rules which experience has shown to be necessary.</p> <p>Process — Service by Publication — Necessity of Attachment.</p> <p>11. A suit brought by a stockholder on behalf of his corporation is in personam, and relief cannot be granted unless the party against whom the claim is asserted is served or appears; if he is served by publication, there must be a seizure by the court of some property belonging to him on which to base the service by publication.</p> <p>Corporations — Stock—Jurisdiction—Corporate Stock — Situs.</p> <p>12. Stock in an Oregon corporation is subject to the jurisdiction of the Oregon courts, though the certificates are without the state and are owned by nonresidents.</p> <p>Limitation of Actions — Minority Stockholder’s Suit — Laches.</p> <p>13. Where, after the lapse of sixteen years, a minority stockholder asserts in equity a cause of action in favor of the corporation which would be barred in six years if the corporation had sued at law, plaintiff’s complaint should allege the impediment to an earlier prosecution of the claim, how he remained in ignorance so long, and how and when the matter came to his knowledge.</p> <p>Limitation of Actions — Recovery of Dividend — Statute.</p> <p>14. An action at law to recover a dividend must be brought within six years, under Section 6, L. O. L.</p> <p>Equity — Laches.</p> <p>15. Equity being disposed to follow the law, if an equitable suit is brought within the time allowed to bring a corresponding action at law, the burden is on defendant to allege and prove laches; if the suit is brought after expiration of the time, plaintiff should explain the delay in his bill.</p> <p>Limitation of Actions — Statute of Limitations — Suspension by Absence or Concealment.</p> <p>16. If a minority stockholder, suing his company, others, and an individual in control of all, for misappropriation of corporate funds, relied on Section 16, L. O. L., relative to the effeet of absence or concealment in suspending the running of the statute of limitations, his suit having been brought fourteen or fifteen years after the misappropriations, he should have averred that defendant foreign corporations had never done business in Oregon, that the individual defendants had continuously resided in a state other than Oregon since the acts complained of took place, and should set up the aggregate amount of time they had spent in Oregon.</p> <p>Limitation of Actions — Trusts—Directors and Majority Stockholders —Disavowal of Trust.</p> <p>17. A director is a trustee, as is a majority stockholder in some • sense; but, when they disavow the trust by misappropriating funds, the statute of limitations begins to run.</p> <p>Limitation of Actions — 'Running in Favor of Trustee.</p> <p>18. The statute of limitations will not run in favor of the trustee of an express trust, except when the trustee repudiates the trust and appropriates the property to his own use.</p> <p>Contracts — Option Contract — Construction.</p> <p>19. Where; a contract between plaintiff and defendant provided that plaintiff should have the privilege of purchasing a 5 per cent interest “in the equity now owned by” defendant "in said Columbia mine at the agreed price of $5,000,” plaintiff was not entitled to a 5 per cent interest in the mine after the purchase price due the sellers to defendant company had been paid in full.</p> <p>Beformation of Instruments — Optional Contract — Execution.</p> <p>20. Where parties have given their contract a practical construction in accordance with its obvious meaning and have fully executed the contract when so construed by them, and where there are no allegations of fraud or imposition, the contract cannot be reformed.</p> <p>Limitation of Actions — Statute of Limitations — Misappropriation of Corporate Funds.</p> <p>21. A foreign majority stockholder in an Oregon corporation, who misappropriated moneys of the company in fraud of a minority stockholder, is liable to account for the money misappropriated, unless he can show that he has been in the state more than six years since the misappropriation.</p> <p>Interest — Legal Bate from Date of Misappropriation of Corporate Funds.</p> <p>22. Where a director, in control of the funds of the corporation, abstracts -and appropriates to his own use a definitely ascertained sum of money to which he is not entitled, the claim of the corporation to reimbursement will bear interest at the legal rate from the date of the misappropriation.</p> <p>Corporations — Bight of Minority Stockholder — Acquiescence in Ultra Vires Expenditures.</p> <p>23. Expenditures by a mining company on behalf of another mining and milling company located in another state were ultra vires, but a minority stockholder in the mining company, who assented to the policy of investing its funds in outside enterprises, and who has made no objection to the investment in question for fifteen years after notice thereof, cannot take advantage of the expenditures in his suit against a majority stockholder for misappropriation of corporate funds.</p> <p>Corporations — Acquisition of Majority of Stock in Another Company —Duty of Controlling Company.</p> <p>24. When a corporation acquires a majority of the stock of another corporation, it assumes the obligation to manage the affairs of the controlled company for the benefit of all stockholders, and not for its own aggrandizement.</p> <p>Corporations — Duty of President and Director.</p> <p>25. It was the duty of the president of a mining company, one of its directors, to conduct the company’s affairs with an eye solely to the interests of the company.</p> <p>Corporations — Minority Stockholder — Failure to Object to Loans.</p> <p>26. A minority stockholder in a mining company, who knew of loans to a lumber company controlled by the individual who controlled the mining company, and who made no objection to them before bringing his suit against the individual, the mining company, and various others for misappropriation of the mining company’s funds, was not required to permit such method of doing business to continue.</p> <p>Embezzlement — Dealing With Funds by Minority Stockholder.</p> <p>27. Where a minority stockholder in a mining company was in active charge of the plant, and learned that the individual in control of the company had misappropriated the company’s funds, so that he, the minority stockholder, withdrew the funds the company then had on deposit in a bank, took certificates of deposit, and turned them over to the registry of the court, notifying the controlling individual, he was not guilty of embezzlement.</p> <p>Corporations — Remedy of Minority Stockholder — Receivership.</p> <p>28. A minority stockholder in a mining company, on discovering that the individual in control thereof had misappropriated its funds, should have applied for a receivership, instead of himself, he being the active manager of the company, taking certificates of deposit for the company’s funds in bank and turning them into the registry of the court in which he sued.</p> <p>Corporations — Stockholder’s Suit — Evidence.</p> <p>29. The making of improper investments by a majority stockholder in a mining company, though acquiesced in by a minority stockholder, was material in the minority stockholder’s suit for misappropriation of funds as characterizing the management of the company.</p> <p>Corporations — Right of Minority Stockholder — Receivership.</p> <p>30. A minority stockholder, complaining of misappropriation of corporate funds by a majority stockholder, is proceeding in his own right, and not in the right of the company, if he applies for a receivership.</p> <p>Corporations — Stockholder’s Suit — Answer.</p> <p>31. In a minority stockholder’s suit against his company, others, and an individual controlling them all, defendants, who appeared generally for the first time when decree for plaintiff was entered, should be permitted to answer, if they eleet, and to offer any additional proof they may have on remand of the cause.</p> <p>Corporations — Records—Keeping in State — Statute.</p> <p>32. Where a mining company, whoso minority stockholder is suing it, other companies, and an individual controlling it, for misappropriation of corporate funds, disobeyed an injunction, and removed its records from the state, a mandatory injunction should issue requiring the company to return its records to the state, and to keep them there for inspection as required by Section 6694, L. O. It.</p> <p>ON PETITION FOR REHEARING.</p> <p>Equity — Limitation of Actions — Laches—Waiver.</p> <p>33. Defenses of laches and limitations can be waived, and are deemed waived unless asserted by the litigant entitled to assert them.</p> <p>Equity — Limitation of Actions — Laches—Right to Assert.</p> <p>34. If a suit by a minority stockholder against the corporation and others be one brought in its right to recover for it money abstracted from its treasury, it cannot assert defenses of laches and limitations; but otherwise if the suit is an equitable demand on it for plaintiff’s share of a fund which should have been distributed as dividends, in which case it is the adverse party.</p> <p>Corporations — Dividends—Declaration.</p> <p>35. Generally a corporation’s officers are sole judges of the propriety of declaring dividends; and a minority stockholder may compel a declaration only on clearly showing that the directors are guilty of fraud or bad faith in accumulating a large surplus and refusing dividends.</p> <p>Corporations — Corporate Fiction — Estoppel to Deny.</p> <p>36. Neither is plaintiff in a position to contend that a corporation is a fiction, nor can the court hold it such, where the company was organized for a lawful purpose, and for years carried on a lawful ■business, and plaintiff participated in its organization, and all those years served it as director and salaried employee, and made reports on its behalf to the corporation commissioner, and sues as owner of shares of its stoek, and has received dividends thereon, and in his complaint alleges its corporate existence.</p> <p>Process — Service by Publication.</p> <p>37. The seizure or control of the res which will justify service by publication need not be by attachment, but may be by bill in equity.</p> <p>Process — Service by Publication.</p> <p>38. Service by publication cannot be made unless the court, when the substituted service is invoked, has possession of some property belonging to the defendant so as' to be served.</p> <p>Corporations — Minority Stockholders — Receiver.</p> <p>3&. It is within the general power of a court of equity to grant a receivership over a corporation, which will hot work a dissolution of it, where through it the relief of a minority stockholder against the fraud of majority holders can be best worked out; and where there are no innocent stockholders or creditors liable to be injured thereby this will be done; Section 1108, L. O. L., stating circumstances under whieh a receiver may be appointed, not divesting or abridging, but enlarging this jurisdiction inherent in courts of equity.</p> <p>Contracts — Option Contract — Construction.</p> <p>40. Contract of plaintiff with the company owning a mine subject to a mortgage, giving him option of purchasing for a certain amount five per cent interest in the “equity now owned by” said company in the mine, does not entitle him to five per cent interest in the property, free of mortgage.</p> <p>Corporations — Minority Stockholders — Acquiescence in Diversion of Funds.</p> <p>41. Evidence in minority stockholder’s suit held, to show he acquiesced in diversion of corporation’s funds by way of loan or investment, and so was not entitled to relief on account thereof.</p>

Prom Multnomah: Robert G. Morrow, Judge. Action in replevin by A. J. Parrington against Andy Weinberger, constable for Multnomah County, Oregon, in which, the defendants prevailed in the lower conrt and plaintiff appealed. Department 1. Statement by Mr. Justice Benson. This is an action in replevin. The case was tried in the Circuit Court without a jury upon an agreed statement of facts which is not before us.

From Lake: Bernard Daly, Judge. Department 2. Statement by Mr. Justice Moore. The defendant, E. H. Amsden, was indicted for the crime of practicing medicine without a license, alleged to have been committed in Lake County, November 30, 1914. A demurrer to the formal charge on the ground that the Circuit Court did not have original jurisdiction of the subject of the action was sustained, and the state appeals.

<p>Appeal and Error — Continuance—Grant—Discretion of Court.</p> <p>1. The allowance or denial of a motion to postpone the hearing of a cause is within the trial court’s discretion, which will not be disturbed save in case of manifest abuse.</p> <p>Continuance — Denial—¡Propriety.</p> <p>2. Section 115, L. O. L., declares that a motion to postpone trial on ground of absence of evidence shall only be made upon affidavit showing materiality of evidence expected to be obtained, what diligence has been used to procure it, the name and residence of the witness or witnesses, that the court may require the moving party to state the evidence which he expects to obtain, and that if the adverse party thereon admits that such evidence would be given, etc., the trial shall not be postponed. Defendant in a condemnation suit filed an affidavit, stating that he had been selected as a member of the jury panel for the January term of court; that he had been for some time past sitting as a juror in a criminal prosecution, and was only released at noon of the Saturday preceding the Tuesday for which the ease was set; that because of the weather, street-cars and telephones being out of commission, he had been unable to prepare his case for trial; and that his attorney would be absent. The application did not give the names of any witnesses whom defendant expected to call, or what preparations were necessary. Held, that the denial of the application for postponement was not an abuse of the trial court’s discretion.</p> <p>Appeal and Error — Review—Questions of Law — Expert Testimony.</p> <p>3. Where a witness is produced as an expert, the court, before he can be allowed to testify as such, must determine whether the question involved lies without the domain of common experience so as to be the subject of expert testimony, and the conclusion reached is a matter of law’subject to review on appeal.</p> <p>Evidence — Opinion Evidence — Expert Testimony.</p> <p>4. Where a witness is tendered as an expert, it is the duty of the court, as a preliminary question of fact, to determine his qualification from his testimony thereto.</p> <p>Evidence — Experts—Qualifications.</p> <p>5. Testimony that one offered as an expert witness as to the value of defendant’s lands taken under eminent domain proceedings and as to the damages had been assessor of the county and was familiar with land values establishes his qualification as an expert.</p> <p>[As to admissibility of opinion of witness in respect to amount of damages to realty, see note in Ann. Cas. 1912A, 191.]</p> <p>Trial — Instructions—Requests Covered — “Market Value.”</p> <p>6. In a suit to condemn a railroad right of way, a charge that there were only two questions for the jury to determine: First, the reasonable market value of the land taken; and, second, the amount of damages to the remaining land caused by the taking; that the measure of damages is the market value of the land taken at the time of filing the eomplaint; that by market value is meant the value which would be placed on the property by one desirous of selling but not obliged to soil, or one wishing to purchase but not obliged to do so; that, having determined the market value of the land, the jury should consider whether the remaining land had been damaged, and also whether or not there was a benefit by the construction of a railroad therethrough; and that should the jury determine that the benefits offset the damages, then nothing should be allowed on account of that, but if the damages were greater than the benefits, should it be found the land was in any way benefited, defendants should be allowed the difference — fairly instructed the jury as to the rules of law applicable to the assessment of damages, so that a denial of additional instructions was proper..</p> <p>Eminent Domain — Damages and Benefits — Distinct Tracts.</p> <p>7. In a suit to condemn a railroad right of way through a tract of land dividing it, damage and benefits cannot be separately assessed to each of the resulting parcels, disallowing benefits to one to be offset against damages to the other.</p> <p>New Trial — Newly Discovered Testimony — Right to.</p> <p>8. Where defendants were denied postponement and then moved for a new trial on the ground of newly discovered testimony, the motion for new trial cannot be granted where there was no showing that the witnesses who made affidavits as to their knowledge would appear and testify to the facts deposed.</p> <p>New Trial — Cumulative Evidence.</p> <p>9. A new trial cannot be granted on account of newly discovered cumulative evidence.</p>

From Multnomah: William N. Gatens, Judge. Department 1. Statement by Mr. Justice Burnett. This is a suit by a wife against her husband for separate maintenance. She alleges their marriage April 30, 1911, recites in detail many of the troubles of the wedded life of about nine months, and says that she has been compelled on account thereof to live separate from the defendant without any fault on her part.

From Multnomah: George N. Davis, Judge. Action by tbe Seattle Dock Company, a corporation against tbe Pacific Surety Company, a corporation, upon an undertaking given by tbe defendant to secure tbe performance of a building contract. From a judgment in favor of plaintiff, defendant appealed. Department 1. Statement by Me. Chief Justice McBride.

<p>From Marion: "William Galloway, Judge.</p> <p>Suit by F. E. Hume against Elver L. Rice and William Esch to enjoin tbe enforcement of an execution against tbe plaintiff. From a decree in favor of plaintiff, tbe defendants appeal.</p> <p>Department 2. Statement by Mb. Justice Mc-Camant.</p> <p>This is a suit to enjoin the malicious abuse of a writ of execution to tbe oppression of plaintiff. Tbe record before us is meager and we are largely dependent on statements in tbe briefs and the oral admissions of tbe respective attorneys for tbe facts. It appears that on February 17, 1915, Elver L. Rice recovered judgment in tbe District Court of Multnomah County, Portland District, against K. C. West and Fare West. A transcript of this judgment was filed in tbe Circuit Court for Multnomah County and an execution was sued out of said court thereon. A writ of garnishment based on this execution was served on F. E. Hume, plaintiff in tbe case at bar, and be answered that he bad in bis possession no money or property belonging to tbe defendants in the writ. Rice thereupon filed allegations and interrogatories which were answered by Hume. The issues thus raised came on for trial in the Circuit Court for Multnomah County April 3, 1915, and judgment was rendered in favor of Rice and against Hume April 24, 1915. Execution was sued out on this judgment April 30th, and on May 5th Hume appealed from the judgment to this court, filing a supersedeas bond with his notice of appeal. The appeal was prosecuted and the judgment of the lower court was reversed June 6, 1916: See Rice v. West, 80 Or. 640 (157 Pac. 1105).</p> <p>On May 6, 1915, Rice'filed a restitution bond, claiming that the case fell within the operation of Section 553, L. O. L., and that this bond entitled him to enforce the execution. At some time not fixed by the record before us, but not earlier than May 1st or later than May 8th, a levy was made by garnishment of Hume’s bank account in the Gervais State Bank. On May 8th Hume’s attorneys demanded of Rice’s attorney that the writ of execution be recalled and Hume’s property released; this demand was refused. Hume thereupon brought this suit in equity in Marion County, praying that Rice be enjoined from proceeding further under the execution and that Hume have judgment for the damages sustained by the levy. The complaint charges that there was a malicious abuse of the process.</p> <p>On May 10th a preliminary injunction was issued, restraining further proceedings under the execution. Thereafter Hume moved in the Circuit Court for Multnomah County for the recall of the execution. His motion was allowed May 21st and the garnishment was released May 24th. The suit in equity was put at issue and tried out. Hume recovered judgment against Rice and the latter appeals.</p>

From Douglas: George F. Skipworth, Judge. Department 2. Statement by Mr. Justice Moore. This is an action by Olive F. Crow as administratrix of the estate of E. J. Crow, deceased, against Albert Abraham individually and as executor of the last will and testament of Henry G. Crow, deceased, to recover money.

<p>Pleading — Reply—Inconsistency With Complaint.</p> <p>1. Where plaintiff declared on debts assigned, and defendant denied the assignment or notice thereof and pleaded payment to the assignor, plaintiff’s reply that defendant’s plea of settlement ought not to prevail because the settlement was based on a parol agreement on his part which he failed to perform was not inconsistent with the complaint.</p> <p>Compromise and Settlement — Performance of Contract — Dependent Covenants.</p> <p>2. Where in an action on debts assigned defendant pleaded settlement by a written contract, plaintiff’s reply, if established, that as a condition for the settlement which defendant pleaded, defendant had orally agreed to perform certain acts which he had failed to do, was a good defense.</p> <p>[As to mere promise of party under the law of accord and satisfaction, see note in 100 Am. St. Rep. 421.]</p> <p>Witnesses — Cross-examination—Sub j ect Matter.</p> <p>3. In aetion on debts assigned, where defendant pleaded settlement by a writing, he was properly denied the privilege of cross-examining a witness testifying for plaintiff on her direet case, in regard to the writing, since the alleged settlement was a part of the affirmative defense.</p> <p>Bills and Notes — Right of Assignee — Defenses.</p> <p>4. An assignee’s action on a non-negotiable note is subject to such defenses only as were in existence when defendant received notice of the assignment.</p> <p>Appeal and Error — Scope of Review — Sufficiency of Record.</p> <p>5. An assignment of error to the refusal of an instruction based upon a judgment-roll cannot be considered in the absence of the judgment-roll from the record or of identification of such roll in a certificate of the trial judge or by the official stenographer.</p>

<p>Homicide — Questions for Jury.</p> <p>1. On a trial for manslaughter committed in producing an abortion, evidence held to make a question for the jury as to whether the death was caused by unlawful means and was attributable to defendant’s action.</p> <p>Homicide — Questions for Jury — Excuse or Justification.</p> <p>2. In view of Section 799, subdivision 28, L. O. L., providing that it is presumed that things have happened according to the ordinary course of nature and the ordinary habits of life, evidence on a trial for manslaughter committed in producing an abortion that deceased was in ordinary good health, in connection with the presumption that she would have survived the birth of the child, was sufficient to make a question for the jury as to whether the operation was necessary to preserve her life.</p> <p>Criminal Law — Instructions—Singling Out Matters.</p> <p>3. On such trial, an instruction that proof that a physician, in his professional treatment of a pregnant woman, had used means with intent to destroy the life of the child, and the death of the mother followed, was not evidence that the treatment was not necessary to preserve the mother’s life was properly refused, as it would have been irregular to single out that particular branch of the evidence and tell the jury that it was not sufficient to establish guilt.</p> <p>Criminal Law — Evidence—Statements of Accused — Weight.</p> <p>4. While under the express provisions of Section 711, L. O. L., when part of an act, declaration, or conversation is given in evidence by one party the whole may be inquired into by the other, it is not the law where the state proves defendant’s statement that the favorable parts must be given as mueh effect as the unfavorable parts, in view of Section 868, providing that the jury are the judges of the effect or value of the evidence when not declared conclusive.</p> <p>Criminal Law — Instructions—Invasion of Province of Jury.</p> <p>5. Under Section 868, L. O. L., making the jury the judges of the effect or value of evidence addressed to them when not declared conclusive, an instruction that all of defendant’s statements proved by the witnesses for the state must be taken together, as well that part which made for defendant as that which made against him, and that if any part was in favor of defendant and not apparently improbable or untrue when considered with all the other evidence, then such part of defendant’s statement in his favor was entitled to as mueh consideration from the jury as part of his testimony was properly refused, as it would practically have told the jury to give as much effect to defendant’s favorable statements in his own interest as to the unfavorable parts, and would have invaded the province of the jury and violated Section 868.</p> <p>Homicide — Manslaughter—Homicide in Commission of Another Offense — “Pregnant With Child.”</p> <p>6. Under Section 1900, L. O. L., providing that any person who shall administer any medicine, etc., to any woman pregnant with child, or employ any instrument, with intent to destroy such child, shall, in ease of the death of the child or the mother, be guilty of manslaughter, a woman is “pregnant with ehild” from the moment of conception, and it is not necessary that the foetus be quick or able to move in .the womb, as at common law.</p> <p>Criminal Law — Province of Court and Jury — Assessment of Punishment.</p> <p>7. The sole office of jurors is to ascertain the fact which is submitted for their inquiry and they have nothing whatever to do with the punishment to be inflicted upon defendant; it being the province of the court to declare the extent of the punishment within the bounds of the statute.</p> <p>Pardon — Parole—Discretion of Court.</p> <p>8. Under Laws of 1911, page 152, providing that, when any person who has not previously been convicted of a felony shall be convicted of a felony or misdemeanor and sentence not to exceed ten years’ imprisonment in the penitentiary shall have been pronounced, the court may in its discretion parole the defendant under certain conditions, the matter is left entirely to the discretion of the presiding judge, and there was no abuse of discretion in refusing to parole a defendant given an indeterminate sentence of from one to fifteen years for manslaughter committed in producing an abortion, though the jury included a recommendation of lenieney in their verdict, and though nine of them made affidavit that they would not have agreed to the verdiet if they had known the court would not parole defendant.</p> <p>Criminal Law — New Trial — Affidavits of Jurors.</p> <p>9. On a motion for a new trial in a prosecution for manslaughter committed in producing an abortion, affidavits of jurors could not be received to show that one of the jurors had told others that defendant had been guilty of performing criminal abortions on previous occasions.</p> <p>[As to effect on verdict of information as to facts given to jury by one of their number, see note in Ann. Cas. 1912B, 155.]</p> <p>Criminal Law — New Trial — Newly Discovered Evidence — Diligence.</p> <p>10. On a trial for manslaughter committed in producing an abortion, defendant claimed that he had merely commenced an examination of deceased’s person when he discovered that she was dying. The state introduced considerable testimony about the condition of defendant’s operating-room, tending to show that an operation had been performed. Defendant moved for a new trial on the ground that the condition of his operating-room was due to an operation performed on a third person, that she declined to testify on the trial, and that as a matter of professional ethics he had refrained from giving her name to his attorneys, but that since his conviction she had consented to testify. Held, that this was not ground for a new trial under Section 174, L. O. L., authorizing a new trial for newly discovered evidence which the moving party could not, with reasonable diligence, have discovered and produced at the trial as the evidence was not newly discovered, having been within defendant’s knowledge at all times, and she should have been subpoenaed and offered as a witness when, if she had refused to do so, it could have been determined whether she had such privilege.</p>

<p>Waters and Watercourses — Pollution—Sewage and Refuse Matter.</p> <p>1. When the refuse from defendant’s dairy-barn and dairy-house emptied into a swamp or swale having little current through a sewer, would, without some precaution, such as filtration in addition to a settling tank, maintained by defendant, become decomposed and putrid, pollute the water, cause noxious gases and smells, and affect the use and enjoyment of plaintiff’s property on which the swale was partly situated, this constituted a nuisance.</p> <p>Waters and Watercourses — Surface Waters — Pollution.</p> <p>2. If the water in the swale constituted surface water and it became offensive from substances or liquids on defendant’s land, it was defendant’s duty to prevent it from flowing on plaintiff’s land.</p> <p>Damages — Duty to Minimize — Nuisance.</p> <p>3. Where the water in a swamp or swale was rendered impure by refuse from defendant’s dairy-barn and dairy-house, but with a very small amount of labor and expense, barrels or something of the kind for watering plaintiff’s cattle could have been set at the edge of the swamp in plaintiff’s lot, and the water allowed to percolate through the soil into the barrels, thereby obviating the impurity, it was plaintiff’s duty to minimize the damage as much as he reasonably could.</p> <p>Waters and Watercourses — Pollution of Watercourse — Actions—Evidence.</p> <p>4. Substantial damages could not be recovered for defendant’s pollution of the water in a swamp or swale situated partly on its land and partly on plaintiff’s land by reason of whieh plaintiff’s cattle did not gain in weight as they should, where none of the cattle were weighed and their feed was not weighed or measured, and the testimony as to their respective weights was a mere guess on plaintiff’s part, and where it also appeared that the drainage from plaintiff’s corrals went into the swamp, and it was not shown how much of the unpalatable taste of the water was contributed from plaintiff’s premises, and how much from defendant’s land.</p> <p>[As to liability for pollution of stream by mining operations, see note in Ann. Cas. 1913D, 1082.]</p>

From Hood Biver: William L. Bradshaw, Judge. Action by W. H. Boundtree and others against tbe Mount Hood Bailroad Company, a corporation, and Charles T. Early. From a verdict and judgment in favor of plaintiffs, defendants appealed. Department 1. Statement by Mr. Justice Harris. The Mount Hood Bailroad Company operates a railway line between Hood Biver and Parkdale. The plaintiffs own an orchard and some timber land near Holstein, a station on the railway line.

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

<p>Names — Doing Business Under Assumed Name — Certificate.</p> <p>1. Under Laws of 1913, Chapter 154, Section 1, providing that no person or persons shall do business under an assumed name, unless sueh person or all such persons conducting such business or having an interest therein shall file a certificate, and that it shaU be executed and acknowledged by the party or parties conducting the business or having an interest therein, the certificate must be signed and acknowledged by all the persons interested in the business.</p> <p>Frauds, Statute of — Guaranty—Expressed Consideration.</p> <p>2. Future credit to be extended to the debtor is a sufficient consideration for and is clearly expressed in a guaranty by R. to B. of payment up to a certain amount of all indebtedness which shall be incurred by G. to B. for merchandise purchased by G. from R. within a certain period.</p> <p>[As to contracts of guaranty, see note in 105 Am. St. Rep. 502.]</p> <p>Guaranty — Notice of Acceptance.</p> <p>3. There is not the necessary notice of acceptance of a guaranty, there being no communication between guarantor and guarantee, but the request for a guaranty being to the debtor, and he taking the guaranty to the guarantee, his mere carrying it not constituting him agent of the guarantor.</p>

<p>Estoppel — Pleadings—Sufficiency.</p> <p>1. In an- aetion for breach of marriage promise, a plea that plaintiff was estopped to sue because defendant and another woman were engaged to plaintiff’s knowledge, and that she discussed the engagement with defendant, and did not claim an engagement with him herself, is insufficient to raise an estoppel.</p> <p>[As to defenses to actions for breaeh of promise to marry, see note in 40 Am. St. Rep. 172.]</p> <p>Breach of Marriage Promise — Evidence—Admissibility.</p> <p>2. Statements of plaintiff showing her knowledge of defendant’s engagement to a third person, though insufficient to raise an estoppel against her, were admissible under the general issue.</p> <p>Appeal and Error — Harmless Error.</p> <p>3. Striking a special defense based on estoppel against plaintiff to sue was harmless, where the evidence relied on to show the estoppel was admitted, and defendant had the full benefit thereof.</p> <p>Pleading — Striking Pleadings — Motion—Sufficiency.</p> <p>4. A motion to strike a pleading on the ground that in a prior answer a demurrer to a similar defense was sustained was sufficient to present the ground that the answer was frivolous under Section 76, L. O. L.</p> <p>Estoppel — Pleading.</p> <p>5. In order to entitle a party to a suit or action in this state to rely upon an estoppel in pais, it is incumbent upon him to set forth in his pleading the facts constituting such bar if he have a chance to do so; but where no opportunity arises to plead sueh estoppel, and the necessity therefor occurs at the trial on the admission of evidence, the truth of the plea may .be established in the absence of any averment.</p> <p>Appeal and Error — Presumptions.</p> <p>6. Where evidence touching an estoppel in pais was admitted without pleading such facts, and the hill of exceptions fails to show that no evidence justifying an instruction based on the estoppel was introduced, it must be presumed on appeal that testimony was received authorizing the instruction.</p> <p>Breach of Marriage Promise — Estoppel in Pais.</p> <p>7. If the acts of defendant were such as to induce the plaintiff to believe that there was an engagement between them to marry, and plaintiff acted on that belief, and defendant, knowing plaintiff was acting thereon, continued thereafter to act in a manner to induce sueh belief, the law would not permit defendant to deny an existence of the engagement.</p> <p>Breach of Marriage Promise — Evidence of Promise — Sufficiency.</p> <p>8. No particular words are necessary to give rise to a contract to marry; it is sufficient that the minds of the parties have met and that the engagement to marry is mutually agreed on.</p> <p>Breach of Marriage Promise — Instructions—Damages.</p> <p>9. Instruction that if the promise existed, the jury should assess damages and could take into consideration all the circumstances in evidence, while subject to criticism for omission of the words “if any have been suffered” after the word “damages,” was not erroneous, as it properly stated the elements of compensatory damages.</p> <p>Trial — Instructions—Circumstantial Evidence.</p> <p>10. In action for breach of marriage promise, aggravated by seduction, wherein plaintiff testified to a definite promise to marry, and could have testified directly to the seduction, but did not, it was error to instruct that as to the latter, it could be proved by circumstantial evidence.</p> <p>Trial — Instructions.</p> <p>11. Under Section 868, subdivision 7, L. 0. h., the court should instruct the jury that if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.</p> <p>Breach of Marriage Promise — Instructions.</p> <p>12. In aetion for breach of marriage aggravated by seduction, where plaintiff testified to the engagement and to the sexual act, she could not recover without testifying that such act was permitted because of or in reliance upon the engagement to marry, and an instruction that such fact might be inferred was error.</p> <p>Evidence — Presumptions.</p> <p>13. Under Section 796, L. O. L., an inference must be founded upon a fact legally proved, and not upon a presumption.</p>

From Multnomah: Robert Gr. Morrow, Judge. Action by E. W. Sinnott against the Interstate Contract Company, a corporation. From a judgment in favor of defendant, plaintiff appealed. Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). In Banc. Statement by Mr. Justice McCamant. It appears that on March 30, 1911, while in the employ of a partnership to whose business the defendant has succeeded, plaintiff sustained a personal injury.

<p>Appeal and Error — Bond — Justification of Sureties — Time to File Transcript.</p> <p>1. Section 550, subd. 2, L. O. L., allows respondent five days in which to exeept to the sureties on appeal. Subdivision 4 provides that appeal shall be deemed perfected on expiration of time allowed to except to the sureties, or from their justification. Section 554 provides that on perfection of appeal, appellant shall, within 30 days thereafter, file a transcript. Held, that where by agreement plaintiff deposited a certain sum in ease the judgment was affirmed, whereupon exceptions to the sureties were waived, it constituted a justification, and an order, extending time to file transcript, made within 30 days from the time exceptions to the sureties were overruled, was properly granted.</p> <p>ON THE MERITS.</p> <p>Evidence — Judicial Notice — Matter of Common Knowledge — Economy in Gasoline Consumption..</p> <p>2. It is a matter of common knowledge that economy in the consumption of gasoline in driving motor ears is largely influenced by the ability and experience of the chauffeur, the character of the road traveled, the number of stops, and the length of times wherein the engine is permitted to run without progression.</p> <p>[As to facts of which courts will take judicial notice, see note in 124 Am. St. Rep. 20.]</p> <p>Sales — Misrepresentation of Existing Matter — “Actionable Fraud.”</p> <p>3. The seller of a jitney bus was not guilty of actionable fraud by promising the buyer that if his venture should fail to be a financial success, it would procure contracts from individuals and firms for the profitable use of the ear, and by failing to fulfill such agreement, since the general rule is that to constitute actionable fraud there must be a false assertion, in regard to some existing matter, whereby a party is induced to part with his money or property.</p> <p>Sales — Misrepresentation on Sale of Automobile — Buyer’s Election to Affirm.</p> <p>4. “Where the buyer of a jitney bus discovered the falsity of all of the seller’s alleged representations within the first, two weeks of his use of the ear, but took no action in regard to the matter until after the car’s attachment, 37 days after the sdle, in an action by the seller’s assignee seeking to recover an overdue installment of the unpaid purchase-money note, under the circumstances the buyer elected to affirm the contract despite any fraud on the seller’s part.</p>

<p>Appeal and Error — Review—Questions Presented.</p> <p>1. The entry of judgment on plaintiff’s taking a voluntary nonsuit made no provision for costs and disbursements. Defendants’ motion for costs and disbursements, including the attorney’s fee provided for in Laws of 1913, p. 81, was granted with the exception of the fee, vchereupon defendants filed a notice of appeal, which, after setting out the original judgment entry, recited that defendants appealed from so much of the judgment as failed to allow them costs provided for by statute. Held, that the appeal did not present for review the question of the denial of the attorney's fee provided for by Laws of 1913.</p> <p>Judgment — N onsuit — Recitals.</p> <p>2. As Section 184, L. O. L., declares that a judgment of nonsuit shall not bar another action for the same cause, the recitals in the judgment entry on motion for nonsuit that the dismissal was without prejudice is surplusage and is no ground for objection on appeal.</p> <p>ON MOTION TO RECALL MANDATE.</p> <p>Costs — Dismissal of Appeal — “Prevailing Party.”</p> <p>3. When a respondent is brought into the Supreme Court by an appellant, and the appeal is dismissed on respondent’s motion for the court’s lack of jurisdiction to hear the appeal on its merits, respondent is the “prevailing party,” within Sections 565, 566, L. O. L., allowing $15 costs to the prevailing party on appeal in the Supreme Court, and allowing and defining neeessary disbursements.</p>

<p>Equity — Cross-bill—Matters of Defense.</p> <p>1. The cross-bill of H. against S., in action by S. to recover for advances for payment of land made by S. under agreement of H. to repay half of them, states matters of defense, entitling H. to equitable relief, and not of mere counterclaim; it averring the money advanced. was to be repaid out of the profits from resale of the land; that it had been resold, and the proceeds received and disposed of by S., who has refused to account therefor; that H. does not know what the profits are, and cannot know what, if anything, is still due S. on his advances; and asking for an accounting.</p> <p>[As to nature and objects of cross-bills, see note in 83 Am. Dee. 251.]</p> <p>Account — Complaint—Demand.</p> <p>2. Averment of the complaint that defendant has at all times refused to render to plaintiff a statement of account implies a previous demand, and is equivalent to an allegation of demand and refusal.</p> <p>ON PETITION POE EEHEAEING-.</p> <p>Appeal and Error — Presumptions—Demurrer—Admission.</p> <p>3. Where the decree appealed from involves only the' cross-bill, a demurrer to the cross-bill, and a ruling sustaining the demurrer, it must be assumed on appeal that the cross-bill correctly states the facts.</p> <p>Equity — Cross-bill—Matters of Defense — Counterclaim—Statute.</p> <p>4. Matters constituting a counterclaim may not be pleaded as a cross-bill.</p> <p>Equity — Pleading—Complaint in Nature of Cross-bill — Statute.</p> <p>5. The relief sought in a suit in equity in the nature of a cross-bill must operate as an entire or partial defense to an action at law, and the mere faet that defendant states a cause of action entitling him to equitable relief does not warrant filing of such complaint.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>This is a suit in equity by Charles Mackin, Walter Mackay and Title & Trust Company, a corporation, as executors of the last will and testament of Richard Wilson, deceased, against Harry Noad, William Noad, Richard Noad, Max Noad, Isabelle Eyre, Hilda Couch, Esther B. Wilson, Charles Mackin, Lueilla O’Grady, St. Vincent’s Hospital, an Oregon corporation, Precious Blood Convent, Sacred Heart Hospital, a Washington corporation, Providence Hospital, an Idaho corporation, St. Patrick’s Hospital, a Montana corporation, His Grace, Archbishop Alexander Christie, Archbishop of the Diocese of Oregon City, Oregon, The Sisters of the Holy Names of Jesns and Mary, The Society of Jesns, and Idaho Investment Company, a corporation, to obtain a construction of the above-mentioned will. The opinion rendered In re Wilson’s Estate, 85 Or. 604, is approved, adopted and followed in this case so far as the construction of said will is involved.</p> <p>In Bane.</p>

From Yamhill: Harry H. Belt, Judge. Department 1. Statement by Mr. Justice Harris. J. W. Morris is attempting to recover money from the City of Sheridan because of the failure of the city to pay the full amount of twelve warrants which the city issued on account of engineering services performed by Mm.

From Yamhill: Harry H. Belt, Judge. Department 2. Statement by Mr. Justice Bean. This is an appeal by defendant from a judgment on a verdict in favor of plaintiff for $800, and $1,056, costs. The action is for two payments dne April 20, and May 20, 1915, upon a contract which is set forth as an exhibit to the complaint.

From Wasco: William: L. Bradshaw, Judge. Department 1. Statement by Mr. Justice Burnett. Tbis is an action to recover for damage alleged to have been inflicted by tbe defendant upon the plaintiff’s auto truck as he was driving it across the defendant’s railway tracks in The Dalles.

<p>Interpleader — Grounds—Independent Liability.</p> <p>1. It is of the essence of interpleader that plaintiff must be indifferent between those claiming from him and must not have incurred any independent obligation in favor of either.</p> <p>[As to the right of interpleader, see note in 91 Am. St. Rep. 593.]</p> <p>Attachment — Garnishment—Note—Procedure—Sufficiency.</p> <p>2. A note may be attached; but, if it was not in the possession of the debtor named in the writ, notiee should be served upon the indorsee having possession, together with a copy of the writ, specifying the property attached, as required by Section 300, L. O. L.</p> <p>Mortgages — Rights of Subsequent Attachment Creditor.</p> <p>3. In a suit involving the rights of the purchaser of a note secured by a mortgage and attachment creditors of indorser, where the note was procured before attachment, that the assignment of the mortgage was recorded after attachment would be immaterial; the note being the principal obligation.</p> <p>Pleading — Conclusions.</p> <p>4. The allegation that the assignment of the note was without consideration, and made for the purpose of hindering, delaying and defrauding defendants, is a mere conclusion.</p> <p>Bills and Notes — Innocent Purchasers — Fraudulent Intent of Seller.</p> <p>5. Where the purchaser of a note before maturity paid full value therefor, that she knew that payee was indebted to others did not defeat the transaction, unless she knew of the fraudulent purpose to defraud creditors.</p> <p>Garnishment — Proceedings—Sufficiency.</p> <p>6. The service of notice of garnishment upon makers of the note did not give the officer any authority over the note itself, where the note was not in their possession, and he could not sell the note under an execution.</p> <p>Garnishment — Levy Under Execution — Procedure.</p> <p>7. Under Section 234, L. O. L., with reference to execution against property of garnishee, if the note was due, the only proceeding was to demand payment of garnishee, in default of which levy should be made; but, if the note was not due, it should have .been sold pursuant to proper levy.</p>

From Marion: Percy E. Kelly, Judge. Action by J. W. Leavitt & Company, a corporation, against B. M. Dimick. From a judgment on a verdict in favor of defendant, on a counterclaim, plaintiff appealed. Department 2. Statement by Mr. Chief Justice McBride. This was an action at law brought by plaintiff, a California corporation, which at the dates mentioned in the complaint was engaged in the sale of Willys-Overland automobiles in California and Oregon.

From Multnomah: George N. Davis, Judge. Department 1. Statement by Mr. Justice Harris. This is an action by subcontractors against the principal contractor for a balance claimed to be due for construction work done on a logging railroad. The defendant The Flagg & Standifer Company, a corporation, contracted to build a logging railroad for the Silver Falls Timber Company.

<p>Quieting Title — Complaint—Sufficiency.</p> <p>1. A complaint alleging that plaintiff is owner and in possession of real property, and that defendants claim an interest therein, is sufficient in suit to quiet title, under Section 516, L. O. L.</p> <p>Quieting Title — Counterclaim—Foreclosing Mortgage.</p> <p>2. Foreclosure of mortgage may be decreed on defendant’s cross-bill or counterclaim in suit to quiet title.</p> <p>[As to right to affirmative relief on cross-bill in suit to quiet title, see note in Ann. Cas. 1917D, 674.]</p> <p>Pleading — Counterclaim—Waiver of Objection.</p> <p>3. Plaintiff in suit to quiet title waives objection to propriety of relief demanded by counterclaim seeking to foreclose mortgage on same real estate by replying thereto, instead of demurring.</p> <p>Quieting Title — -Reply.</p> <p>4. Where defendant to suit to quiet title seeks to foreclose mortgage on real estate in question by counterclaim, plaintiff may set up in reply any defensive matter he could have pleaded to complaint for foreclosure of mortgage.</p> <p>Vendor and Purchaser — Remedies of Purchaser — Election.</p> <p>5. One who has been induced to purchase real estate by fraudulent representations of vendor has an election to return what he has received and rescind the contract of purchase, or to retain what he has received and sue for damages.</p> <p>Setoff and Counterclaim — Action to Foreclose Mortgage — Recoupment.</p> <p>6. Purchaser may, in action to foreclose purchase-money mortgage, recoup damages flowing from vendor’s fraud in inducing purchase for which mortgage was given.</p> <p>Pleading — Wrong Theory.</p> <p>7. A party is entitled to the relief arising under the law from the facts alleged and proved by him, though he is mistaken in his claim that they constitute an estoppel.</p> <p>Setoff and Counterclaim — Counterclaims Relating to Specific Property.</p> <p>8. Under Sections 74, 401, L. O. L., mortgagor cannot, in action to-foreclose, recover money judgment by way of counterclaim for damages arising out of a purely legal claim.</p> <p>Setoff and Counterclaim — Statutory Provisions.</p> <p>9. The counterclaim, on whieh a defendant may have affirmative relief in an equity suit, under Section 401, L. O. L., must contain matters of equitable cognizance.</p>

From Coos: John S. Coke, Judge. Action by tbe Myrtle Point Transportation Company, a corporation, against tbe Port of Coquille Eiver, a municipal corporation, and M. 0. Stemmier. From a judgment in favor of plaintiff, defendants appeal. Department 2. Statement by Mr. Justice Mc-Camant.

<p>Appeal and Error — Filing Amended Answer — Additional Defense.</p> <p>1. Discretion of court in permitting filing of an amended answer setting up, not a substituted, but an additional defense, will not be interfered with, except in case of abuse.</p> <p>Banks and Banking — National Banks — Power to Negotiate Loans for Others.</p> <p>2. National banks have no power to negotiate loans for others.</p> <p>Banks and Banking — Action Against National Bank — Defense.</p> <p>3. A national bank’s want of authority to aet as broker in negotiating a loan for another is available as a defense to the bank, in an action against it by the lender, for whom it aeted, for damages from its failure to lend on sound security.</p>

<p>Appeal and Error — Reservation of Grounds of Review — Necessity of Showing in Record.</p> <p>1. The exclusion of evidence is not reviewable where the bill of exceptions does not show any objection to the ruling, but, on the contrary, contains a notation that there was no exception.</p> <p>Carriers — Loss of or Injury to Goods — Admissibility of Evidence.</p> <p>2. In an aetion against a carrier for damages caused by the freezing of a shipment of a bottled beverage, evidence that the car used for the transportation of the shipment was of the kind usually employed for the carriage of perishable freight in the winter-time, and was the best known vehicle for that purpose, was properly admitted, as defendant’s liability was dependent upon its negligence, and, negligence being a question of fact, the triers of the fact were entitled to know the character and construction of the ear.</p> <p>Carriers — Loss of or Injury to Goods — Liability.</p> <p>3. If a carrier, in transporting a shipment of a bottled beverage, acted with prudence commensurate with the duty imposed upon it, it was not liable for the beverage freezing.</p> <p>Carriers — Bills of Lading — “Apparent Good Order, Contents and Condition of Contents of Packages Unknown.”</p> <p>4. Where a bill of lading, describing the goods shipped as carbonated nonalcoholic beverage, further recited that the shipment was received in “apparent good order, contents and condition of contents of packages unknown,” the terms of the bill of lading did not give conclusive notice to the carrier of the inherent quality of the goods, so as to enjoin upon it greater prudence in preventing the shipment from freezing as the quoted words refer only to- the extrinsic appearance of the packages, and bound the earner to no greater extent in the absence of any further showing.</p> <p>[As to limiting liability of carrier by bills of lading, see note in 88 Am. St. Rep. 74.]</p> <p>Carriers — Loss of or Injury to Goods — Instructions.</p> <p>5. In an aetion for damages to a shipment of goods under a bill of lading reciting that the shipment was in “apparent good order, contents and condition of contents of packages unknown,” plaintiff requested an instruction that the bill of lading in evidence recited that the goods were in good order and condition when received by defendant, that by such bill of lading defendant contracted to deliver the goods in like condition, and if the jury believed that they were not delivered in as good condition as when received by defendant, ordinary wear and tear, deterioration, defect or vice in the property excepted, and that plaintiff was damaged, then plaintiff was entitled to recover, unless they believed that the damage or injury resulted from some fault or negligence of plaintiff or his consignor. Held, that the court properly modified this instruction to state that the bill of lading recited that the goods were in apparently good condition, but that the contents and condition of the contents of the packages were unknown.</p> <p>Carriers — Loss of or Injury to Goods — Burden of Proof.</p> <p>6. In an action for damages to a shipment, it was plaintiff’s duty to establish that the goods were in good order when delivered to the carrier.</p> <p>Carriers — Loss of or Injury to Goods — Instructions.</p> <p>7. In an aetion against a carrier for damages caused by the freezing of a shipment of a bottled beverage, where it appeared that the consignor received a carload of the beverage, and that he took from the car a number of barrels containing the beverage and delivered them to defendant for shipment to plaintiff, an instruction was warranted that, if the shipment was damaged while being transferred by plaintiff or its agent from one car to another, defendant would not be responsible, as the jury was authorized to consider the consignor as plaintiff’s agent for the purpose of transshipping the goods.</p> <p>Carriers — Injury to Goods — Improper Packing.</p> <p>8. A carrier, to whom barrels containing a bottled beverage were delivered for transportation and whieh transported them without negligence, was not liable for any injury due to improper packing of the bottles in the barrels; it not being authorized to open the containers, but bound to ship them in the form in whieh they were delivered to it, unless manifestly in bad order.</p> <p>Trial — Instructions—Construction as a Whole.</p> <p>9. An instruction complained of must be read in connection with the whole charge.</p> <p>Carriers — Loss of or Injury to Goods — Instructions.</p> <p>10. Where, in an action against a carrier for damages to a shipment of a bottled beverage, the only fault imputed to defendant was that it allowed the liquid to freeze, an instruction that, though the beverage was frozen upon its arrival at its destination, the jury could not find for plaintiff, unless they found from the evidence alone, disregarding their personal views and opinions, that the faulty or flat condition of the beverage was- due entirely to the frozen condition, was properly given, sinee, if the beverage beeame flat and stale with age, defendant was not liable if the depreciation was caused solely from that quality.</p> <p>Trial — Instructions—Applicability to Evidence.</p> <p>11. In such action, an instruction that the jury could not guess, speculate or presume that plaintiff had suffered damage, and that unless they found, from the evidence, that plaintiff had actually been damaged by defendant’s negligence, plaintiff had not sustained the burden of proof and could not recover, and that unless, from the evidence alone, they could determine with reasonable certainty the amount of damage, they could not return a verdiet in favor of plaintiff, was applicable to the issues.</p> <p>Appeal and Error — Review—Conclusiveness of Verdict.</p> <p>„ 12. In an action against a carrier for damages to a shipment, a jury finding for defendant was conclusive on the Supreme Court on the question of the weight of the testimony.</p>

From Malheur; Dalton Biggs, Judge, In Banc. Statement by Mr. Justice Moore.

<p>Executors and Administrators — Payment of Debts — Joint Notes.</p> <p>1. The administrator of a deceased joint maker of a note was not liable and could not be sued thereon.</p> <p>Limitation of Actions — Tolling Statute — Payment by Administrator on Joint Note.</p> <p>2. Where one of two joint makers of a note died, his administrator, not being liable on the note, could not toll the statute of limitations by making a partial payment on the note, since in doing so he was a volunteer, and would have been liable to the estate for the money unlawfully paid out.</p> <p>[As to part payment by executor or administrator, see note in Ann. Cas. 1912A, 18.]</p>

<p>Elections — Contests—Persons' Entitled to Bring Contest.</p> <p>1. Under Section 3426, L. O. L., authorizing any person wishing to contest the election of any person to any county, district, township or precinct office to give notice in writing stating the cause of contest briefly, no election contest is permissible except by persons claiming the office.</p> <p>Statutes — Repeals by Implication — Intent.</p> <p>2. The intent of the lawmakers controls in determining whether a former statute has been repealed by a later one, as well as in construing the law.</p> <p>Statutes — Implied Repeal by Subsequent Statute on Same Subject.</p> <p>3. A later act does not by implication repeal a former aet touching the same subject matter, where there is no repugnancy between them, and both can be sustained and enforced, unless by some other means the intent of the lawmakers to abrogate the former statute is clearly shown.</p> <p>[As to repeal of statutes by implication, see notes in 14 Am. Dec. 209; 88 Am. St. Rep. 271.]</p> <p>Elections — Contests—Statutory Provisions — Implied Repeal.</p> <p>4. Section 3426, L. O. L., et seq., authorizing election contests by persons claiming any county, district, township or precinct office, was not repealed by implication by the Corrupt Practices Aet (Laws 1909, c. 3, p. 15; L. O. L., § 3486 et seq.), the title of which recites that it is “An aet * * to provide the manner of conducting contests for nominations and elections' in certain cases,” and which provides in Section 3529 that any elector or any political or municipal division of the state may contest the right of any person to any nomination or office on the ground of violation of that aet, or for ineligibility of the successful candidate, or on account of illegal votes, or an erroneous or fraudulent counting or canvass of votes as the aet of 1909 provides for the contest of nominations and election of offices not embraced in the older law and on different grounds and by another class of persons, and was not intended as a substitute for the older law, though the provisions of the two laws in some respects overlap.</p>

<p>Contracts — Actions—Pleading—Performance by Plaintiff.</p> <p>1. Under Section 88, L. O. L., providing that in pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance, but that it may be stated generally that the party duly performed all the conditions on his part, and that if such allegation be controverted, the party pleading shall be bound to establish the facts showing performance, a complaint alleging the making of a contract, that plaintiff had fully performed it on his part, and that defendant had not paid any of the specified price, except a certain amount credited thereon, stated a cause of action.</p> <p>Appeal and Error — Harmless Error — Variance.</p> <p>2. In an action on a contract to do grubbing in a manner acceptable to defendant, the admission of evidence that defendant’s refusal to accept the work was arbitrary and in bad faith, if erroneous, as not within the complaint, was harmless, where the answer offered to permit judgment to be taken in a specified amount, thereby authorizing a recovery on the quantum meruit.</p> <p>Judgment — Offer of Judgment — Effect.</p> <p>3. The court could in no event direct a verdict for defendant where, in his answer, he offered to permit judgment in plaintiff’s favor in an amount specified.</p> <p>New Trial — Motion—Specification of Errors.</p> <p>4. A motion for a new trial for irregularity in the proceedings of the jury, insufficiency of the evidence to justify the verdict, and that it was against the law, and for errors in law occurring at the trial and exeepted to, was so indefinite that the court was justified in refusing to allow it.</p> <p>Pleading — Cure by Subsequent Pleading — Defects in Complaint.</p> <p>5. Where an essential fact has been omitted from the complaint, an issue as to such faet made by the answer and reply cures the defect.</p> <p>Work and Labor — Effect of Express Contract.</p> <p>6. If one operating under a special contract performs service for another which is of value to the latter, recovery may be had therefor on the quantum meruit, unless there has been a willful abandonment of the undertaking.</p> <p>Pleading — Cure by Subsequent Pleading — Defects in Complaint.</p> <p>7. Conceding that in an action for the value of labor performed by plaintiff at defendant’s request, the complaint failed to state a cause of action on quantum meruit because of its failure to allege that the work performed was of any value to defendant, the defect was cured, where the answer alleged a written contract between the parties, that plaintiff had failed to complete the work in particulars therein specified, and that the work performed was worth not to exceed a sum specified and offered to permit judgment for the excess of the sum so specified over the amount already paid, and the reply admitted the agreement as alleged, but denied the -remainder of the allegations of the answer.</p> <p>Pleading — Reply—Departure.</p> <p>8. Though if the matter of reasonable value had been suggested for the first time in the reply, this would have been a fatal departure, it was not a departure where plaintiff merely followed defendant’s lead in departing from the complaint.</p>

From Malheur: Dalton Biggs, Judge. John J. Cancelmo was indicted, tried and convicted of assault, being armed with a dangerous weapon, and from the judgment imposed prosecutes this appeal. Beversed and new trial ordered. In Banc. Statement by Mr,. Justice Moore.

From Jefferson: T. E. J. Duffy, Judge. Suit by W. C. Barber against W. E. Johnson, County Clerk of Jefferson County, Oregon, in which a decree was rendered dismissing the complaint and plaintiff appealed. Department 2. Statement by Mr. Justice Mc-Camant. This is a suit brought to enjoin the county clerk of Jefferson County from canvassing and certifying the returns of an election held November 7, 1916, upon the question of the removal of the county seat.

From Multnomah: George N. Davis, Judge. Action by Clara J. Annand against Emma M. Austin for money had and received. From a judgment in favor of defendant, plaintiff appealed. Reversed and remanded. Department 1. Statement by Mr. Justice Benson. This is an action for money had and received with a complaint in the usual form.

From Clackamas: James U. Campbell, Judge. In Banc. Statement by Mr. Justice Harris. The defendants, Gerlinger Motor Car Company, a corporation, E. E. Gerlinger, and F. P. Coulter appealed from a judgment obtained against them by the plaintiffs David N. Bridenstine and Phebe S. Bridenstine, Ms wife, in an action for damages alleged to have been sustained by reason of fraudulent representations inducing an exchange of properties.

From Tillamook: George R. Baglet, Judge. In Banc. Statement by Mr. Justice Moore. This is a suit by Smith W. Elliott, a resident taxpayer of Tillamook County, Oregon, against that quasi municipality, A. M. Hare as county judge, and F. L. Owens and H. Y. Alley as county commissioners thereof, to enjoin the issue and sale of county bonds, the proceeds from which were intended to be used in constructing permanent roads within the county.

From Multnomah: George N. Davis, Judge. Suit by Charles Rosa, E. Wilhelm, Mohamed Khan and Joe Din against the City of Portland, a public corporation, and H. E. Albee, mayor of said city. A decree was rendered dismissing the suit and plaintiffs appealed. Department 2. Statement by Mr. Justice Benson. This is a suit to enjoin -the enforcement of certain ordinances of the City of Portland.

<p>Waters and Watercourses — Water Supply — “Public Utility” — Ownership — Municipality—“Owner.”</p> <p>1. Under its charter authorizing a city to construct or purchase waterworks and reservoirs, or to grant to any person or corporation a franchise or permission for the construction of waterworks, including the right to use the streets, etc., the city council passed an ordinance providing that plaintiff should construct and maintain a water plant in consideration of a payment of $12,000 by the city and a lease of the plant for 20 years. The ordinance required'the city to acquire land for a reservoir site and right of way thereto, as well as rights of way for all water-mains, and allowed plaintiff during the 20-year period to eharge fixed water rates. Sections 715, 716, L. O. L., declare that in construing a statute effect should be given to all of its terms, and that the intention of the legislature should be pursued, if possible. Laws of 1911, Chapter 279, page 483, Section 6, confer on the Public Service Commission authority to regulate every publie utility, whieh Section 1 defines as embracing all corporations, individuals and associations that own, operate or manage any plant for furnishing water, etc., but declares that no plant owned or operated by a municipality shall be deemed a publie utility. Held, that the water plant was owned by the city, whieh had dominion over it, as title to the reservoir and rights of way was taken in the name of the eity, the mains were located in the streets which by the charter were declared to belong to tbe city in fee, and hence the Publie Utility Commission had no jurisdiction to supervise the rates.</p> <p>[As to review by Publie Service Commission of municipal regulation of publie service corporation, see note in Ann. Cas. 191GE, 1083.]</p> <p>ON PETITION FOB REHEARING.</p> <p>Municipal Corporations — Contracts—Construction.</p> <p>2. The construction of contracts to which a municipality is a party is governed by the same rules applying to contracts between natural persons.</p> <p>Waters and Watercourses — Bates and Charges — Regulation.</p> <p>3. Under Publie Utilities Act (Gen. Laws 1911, e. 279, p. 483), providing that no plant owned or operated by a municipality shall be deemed a public utility thereunder, the Publie Service Commission cannot regulate water rates where the water system is owned by the city, though operated by lessees.</p> <p>Constitutional Law — Judicial Functions — Encroachment on Legisla-' ture.</p> <p>4. Whether it is good or bad policy to exclude water systems owned by cities and operated by lessees from the operation of the Public Utilities Act is not a matter for the courts.</p> <p>Public Service Commissions — Actions to Set Aside Findings — Exclusiveness of Remedy.</p> <p>5. Under Publie Utilities Act (Gen. Laws 1911, c. 279, p. 279, § 54), providing that a party deeming himself aggrieved by an order of the Public Service Commission may commence a suit in the Circuit Court against the commission as defendant to set aside its findings, the remedy prescribed by statute is exclusive.</p> <p>Waters and Watercourses — Regulation of Rates — -Suits—Parties.</p> <p>6. In a suit by a lessee of a water system owned by a city under Publie Utilities Act (Laws 1911, e. 279, p. 483, § 54), to set aside an order of the Publie Service Commission, reducing the rates to be charged for water, the city was improperly joined as a defendant.</p>

Prom Lane: George P. Skipworth, Judge. In Banc. Statement by Mr. Justice Bean. This case originated in a Justice’s Court of Lane County, Oregon. On February 25, 1916, judgment was rendered against H. D. Crites in favor of Elbert Bede and J. W. Grant for $5.35 and $8.40, costs. Execution issued March 16, 1916, and a copy with notice of garnishment was served upon J. H. Chambers. The garnishee answered that he was indebted to Crites in the sum of $24.18.

<p>Criminal Law — Continuance—Consent—Effect.</p> <p>1. Defendants, indicted at the May term, who on May 15th consented to continuance to November 22d, could not complain of such continuance, in view of Section 1701, L. O. L., providing for dismissal if accused does not consent to continuance, and is not brought to trial at the next term.</p> <p>Criminal Law — Appeal—Harmless Error.</p> <p>2. Order postponing term to a day in the succeeding month, though improperly entered, was harmless error, where defendant was not and could not have been ready for trial at the adjourned term.</p> <p>Criminal Law — Speedy Trial — Waiver.</p> <p>3. Defendant’s right to complain of the denial of a speedy trial is not waived by his assertion for the first time of a demand therefor at the beginning of the subsequent term to which the ease was continued.</p> <p>Criminal Law — Continuance—Appeal,</p> <p>4. Where accused could under Section 1606, L. O. L., as amended by Laws of 1915, page 70, have appealed from an order denying his motion for immediate trial or dismissal, and continuing the ease, his failure to do so, and his renewal of the motion at the beginning of the next term, was improper practice.</p> <p>Criminal Law — “Speedy Trial.”</p> <p>5. Though Article I, Section 11, of the Constitution, providing that justice shall be administered openly and without delay, does not in terms guarantee a speedy trial, it will be construed to assure a speedy trial, which is a trial conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays, created by the ministers of justice.</p> <p>Criminal Law — Right to Speedy Trial.</p> <p>6. The constitutional and legislative guaranty of a speedy trial to a party formally charged with the commission of a crime necessarily deprives a court of all discretion in delaying, without cause, a hearing, and before sueh right can legally 'be denied it must affirmatively appear from an inspection of the record made by the court that a reasonable cause for a continuation of the trial existed.</p> <p>Criminal Law — Continuance—Absence of Codefendant.</p> <p>7. Since, in prosecution of three persons jointly indicted for a felony, all must be present during the whole trial, continuance for the absence of one who was ill was proper, in the absence of motion for severance under Section 1529, L. O. L., as to separate trials.</p> <p>Criminal Law — Right to Speedy Trial — Discretion.</p> <p>8. Where two defendants jointly indicted for larceny were given a speedy trial and the jury disagreed, it was thereafter within the discretion of the judge whether they should be again tried at the same term, so that continuance to the next was not error.</p> <p>[As to the right of an accused person to a speedy trial, see note in 25 Am. St. Rep. 187.]</p> <p>Criminal Law — Appeal—Record—Sufficiency,</p> <p>9. Assuming that good cause was prerequisite to continuance after jury’s failure to agree at the first trial, the court’s recital that good cause was shown could not be controverted in the absence of bill of exceptions.</p>

<p>Appeal and. Error — Notice of Appeal — Adverse Parties.</p> <p>1. Defendants sued as makers of a note secured a cross-decree against certain parties as the real maker and as sureties, with the cross-complainants thereof, and plaintiff payee and one of the said sureties appealed. Held, that other alleged sureties were not adverse parties upon whom notice of appeal must be served, for a reversal would benefit them.</p> <p>ON THE MEBITS.</p> <p>Injunction — Enjoining Action at Law — Grounds.</p> <p>2. Under Section 390, L. O. L., providing that where the defendant in an action at law is entitled to relief arising out of facts requiring the interposition of a court of equity and material to his defense, he may, upon filing his answer, also, as plaintiff, file a complaint in equity in the nature of a cross-bill which shall stay the proceedings at law, and that such proceedings may be perpetually enjoined by the final decree, the facts requiring the interposition of a court of equity must be material to the defense of the law action, and the mere fact that defendant has a cause for suit against plaintiff or other parties entitling him to equitable relief will not warrant the filing of a complaint under that section unless the relief sought would operate as an entire or partial defense to the action at law.</p> <p>[As to nature and objects of cross-bills, see note in 83 Am. Dec. 251.]</p> <p>Injunction — Enjoining Action at Law — Grounds.</p> <p>3. Section 390, L. O. L., authorizing a defendant entitled to equitable relief arising out of facts material to his defense to file a complaint in equity staying the proceedings at law, upon filing his answer, presupposes that the answer filed in the law action will raise an issue requiring equitable relief to sustain.</p> <p>Injunction — Enjoining Action at Law — Grounds—-“Holder”—“Accommodation Party” — “Primarily Liable” — “Secondarily Liable.”</p> <p>4. Section 6023, L. O. L., provides, relative to negotiable instruments, that “holder” means the payee or indorsee of a bill or note who is in possession of it or the bearer thereof, and that the person primarily liable is the person who, by the terms of the instrument, is absolutely required to pay it, and that all other parties are secondarily liable. Section 5862 defines an accommodation party, and provides that such party is liable to a holder for value, though the holder knew him to be an accommodation party. Held that, where the payee of a note was a holder for value, the faet that the makers were accommodation sureties for a corporation to which the loan evidenced by the note was made, as between themselves and certain other persons interested in the corporation, was not a defense to an action on the note, and such action should not have been enjoined in a suit in equity filed by the makers against the payee and the other parties under Section 390.</p> <p>Action — Error as to Form of Action — Waiver of Objections.</p> <p>5. Where the defendant in an action at law filed a complaint in equity, under Section 390, L. O. L., against the plaintiff in the action at law and other parties, a party who answered to the merits and defended against the complaint, without demurring to it or to the jurisdiction of equity to try the cause, made the equitable forum a matter of his own selection, and could not afterwards insist that the action should have been tried at law.</p> <p>Evidence — Parol Evidence — Liability of Cosureties.</p> <p>6. An agreement between cosureties for the payment of a note, limiting and fixing the proportion and extent of their several liability, may be established by parol.</p> <p>Principal and Surety — Actions for Contribution — Conditions Precedent.</p> <p>7. Where plaintiffs executed a note for the amount of a loan to a corporation on the agreement of other persons interested in the corporation that they would be cosureties for its payment with plaintiffs, and in evidence of their agreement they executed an indemnity- note to plaintiffs, and the amount which plaintiffs would be required to pay on the principal note was definite and certain, plaintiffs were not bound to suffer the whole burden of payment in the first instance at great loss and hardship to themselves and trust to future litigation for reimbursement, but, in equity, could sue for contribution before payment of the debt.</p> <p>Principal and Surety — Actions for Contribution — Conditions Precedent.</p> <p>8. The corporation being insolvent, plaintiffs were not required to pursue their remedies against it.</p>

<p>Counties — Warrants—Power to Issue — Statutory Provisions.</p> <p>1. Laws of 1917, Chapter 158, page 205, the title of which states that it is an aet to require the county treasurer to pay over to the county clerk of a certain county an amount raised by taxation for a particular purpose, and which provides that the board of county commissioners of such county shall order the auditor to issue and deliver a warrant in favor of the eounty clerk for such amount, modifies Section 2959, L. O. L., requiring the county treasurer to pay out money on orders of the county clerk, and requires the county treasurer, in the particular instance to whieh it relates, to pay such sum on the warrant of the county auditor, as a special statute necessarily operates to circumscribe the effect of a prior general act.</p> <p>[As to what are general statutes, see note in 21 Am. St. Rep. 780.]</p>

From Clatsop: James A. Eakin, Judge. In Banc. Statement by Mr. Justice Moore. The material averments of the complaint herein are to the effect (I) that Isaac Pajunen executed to the plaintiff a promissory note, of which the following is a copy: • ■ “$200.00.

<p>Appeal and Error — Matters Reviewable — Bills of Exception.</p> <p>1. "Where findings are made on matters not in the record, and there is no bill of exceptions, it cannot be determined on appeal whether or not the evidence supported such findings.</p> <p>Appeal and Error — Findings of Fact — Sufficiency of Evidence.</p> <p>2. Findings of fact in an action at law by the court without a jury have the force and effect of a verdiet of a jury, and such a finding cannot be re-examined unless it affirmatively appears from the record that there is no competent evidence to support the same.</p> <p>Appeal and Error — Matters Reviewable — Absence of Bill of Exceptions.</p> <p>3. Where there is no bill of exceptions, the only question to be considered is whether the findings of fact support the judgment.</p>

<p>From Multnomah: Henry E. McGinn, Judge.</p> <p>Department 1. Statement by Mr. Justice Burnett.</p> <p>The plaintiff was a contractor for the alteration of the Hotel Pendleton and employed the defendants Privett and Noble, partners doing business as Pendleton Electric Supply House, to install necessary electrical devices in the building. These subcontractors gave a bond to the plaintiff in the sum of $500 with the defendant American Surety Company as surety, conditioned for the faithful performance of their auxiliary undertaking. The complaint alleges that after the subcontractors had entered upon their work and partially performed the same they abandoned it, whereupon plaintiff notified the Surety Company of the default, and that unless the work were resumed by a date named he himself would complete it at the cost of the company. He says that he did complete it on the refusal of the company to do so, and was compelled to expend $573.27 in so doing. The complaint then makes the following allegation:</p> <p>“That defendants Privett and Noble failed to perform said contract and made further default therein in this, that they failed to provide all the materials or to perform all the work required by the terms and conditions of said contract and suffered and permitted a lien to be filed upon and against said Pendleton Hotel and the ground upon which the same is situated by the Western Electric Company, a corporation, for material furnished to defendants Privett and Noble at their special instance and request and used in the construction of that portion of said building included in said contract, amounting to the sum of $484.56, and thereafter said Western Electric Company duly filed its notice of lien claim therefor in the office of the County Clerk of Hmatilla County, State of Oregon, and the same was recorded in volume * * of the records of Mechanics’ Liens of said county at page # * thereof; that plaintiff duly notified defendant Surety Company of said default and in all respects fulfilled the terms of said contract and bond; that said defendant failed and refused to pay said lien and plaintiff was compelled to pay and did pay the amount thereof, to wit, $484.56.</p> <p>“That by reason of said defaults of defendants, plaintiff has been and is damaged in the sum of $557.83; that defendants have refused to pay any part thereof.”</p> <p>The answer denies the abandonment of the work by Privett and Noble or that the plaintiff was compelled to finish the work at a cost of $573.27, or any sum, and traverses the portion of the complaint last above quoted. Otherwise the complaint was admitted. As new matter, the defendant makes the following allegations :</p> <p>“That the materials referred to in paragraph Y of plaintiff’s complaint herein were sold by the Western Electric Company to the Pendleton Electric Supply House in Pendleton, Umatilla County, Oregon, and were not sold and delivered by the plaintiff herein on the ground for the sole benefit and use of the Pendleton Hotel, but that said Western Electric Company carried an open account with the Pendleton Electric Supply House in Pendleton, Oregon, and that the materials for which the alleged lien was filed were sold to Pendleton Electric Supply House and not to the defendants Privett and Noble; and when said Pendleton Electric Supply House became in default of their payments, said Western Electric Company, in order to obtain payment for the materials sold to said Pendleton Electric Supply House, filed a lien upon and against the said Pendleton Hotel and the ground upon same was situate, which lien was not a valid lien, and payment of said lien by the plaintiff herein was a voluntary payment, and said plaintiff herein was under no obligation to pay said lien.”</p> <p>The reply, omitting formal parts, is as follows:</p> <p>“Admits that the materials referred to in paragraph Y of plaintiff’s complaint herein were sold by the "Western Electric Company to the Pendleton Electric Supply House, in Pendleton, Umatilla County, Oregon ; admits that in order to obtain payment for said materials so sold and delivered to said Pendleton Electric Supply House said Western Electric Company filed a lien upon and against said Pendleton Hotel and the ground upon which the same is situate; but plaintiff denies each and every other allegation contained in said further and separate answer and defense.”</p> <p>By consent of the court and of the parties the case was heard without a jury. Findings of fact and conclusions of law were made in favor of the plaintiff and a judgment rendered thereupon for $500, the amount of the bond. The sole exception appearing in the bill of exceptions is that the Circuit Court refused on motion of the defendant to make and file the findings of fact and conclusions of law submitted by it, and instead adopted those actually placed on file, they being substantially a restatement of the complaint. The defendant Surety Company appealed.</p>

<p>Waters and Watercourses — Irrigation Districts — Petition for Organization and Notice — Sufficiency.</p> <p>1. Piling of a petition to the County Court proposing the organization of an irrigation district was sufficient to confer jurisdiction, under Laws of 1911, Chapter 223, relating to procedure in such eases, where the notice of date of presentation to the court was attached at the beginning of the petition, although not itself signed, and the petition set out the necessary facts, and an affidavit of a publisher showing proper publication was attached.</p> <p>Waters and Watercourses — Irrigation Districts — Power of Legislature.</p> <p>2. The legislature had the power to enact Laws of 1911, Chapter 223, relating to procedure in organization of irrigation districts, and to formulate a method of gaining jurisdiction, and, having provided an opportunity for all persons to be heard, it had the authority to declare that the order of the County Court should be conclusive of the facts found.</p> <p>Waters and Watercourses — Irrigation Districts — Organization—Review.</p> <p>3. Where the County Court got jurisdiction by petition and publication, under Laws of 1911, Chapter 223, relating to procedure to organize irrigation districts, defects in such procedure cannot be reviewed in a contest of the election thereunder by those not making any objection in the County Court.</p> <p>Waters and Watercourses — Irrigation Districts — Organization—Election.</p> <p>4. An election notice, under Laws of 1911, Chapter 223, relating to procedure for organization of irrigation districts, signed by the clerk of the County Court under seal of and by order of the court, was a proper notice by the court.</p> <p>Waters and Watercourses — Irrigation Districts — Contest of Election— Illegality of Votes.</p> <p>5. In contesting an election by a taxpayer, under Laws of 1911, Chapter 223, Section 34, relating to elections in forming irrigation districts, it is necessary to plead and prove ground of disqualification of votes, and that such votes were cast adverse to contesting parties.</p> <p>Elections — Contests—Absence of Poll-books, Tally Sheets, etc. — Voters.</p> <p>6. Poll-books, tally sheets, and the list of voters are for the convenience of the election officers, and their absence at an election is not a ground for contest.</p> <p>Elections — Right to Vote of Person not on List of Voters.</p> <p>7. The list of voters required at a general election is not conclusive of the right of an elector to vote, as one entitled thereto, on a proper showing, can vote anyway.</p> <p>Elections — Secrecy of Ballot — Intimidation.</p> <p>8. That there were no booths at the polls is not a ground for contest of an election, under Laws of 1911, relating to organization of irrigation districts, in the absence of a showing of intimidation or failure to east a free ballot.</p> <p>Elections — Irrigation Districts — Posting Results.</p> <p>9. Posting up results of voting is an after-election duty, which does not affeet the true result, and failure to post is not a good ground for contest.</p> <p>Elections — Contest—Time of Closing Polls.</p> <p>10. The law requiring polls to be kept open to 8 P. M. is only directory, and avails nothing in the absence of showing that electors were deprived of the right to vote, and that the number excluded was sufficient to change the result.</p> <p>Waters and Watercourses — Irrigation Districts — Election in Organizing.</p> <p>11. Where a petition contesting an election, under Laws of 1911, Chapter 223, relating to procedure to organize irrigation districts, did not allege that the directors had failed to contest the election under Section 33, the contest could only cover the substantial fairness of the election under Section 3, and failure of election board to make certificates of the canvass was not before the court.</p> <p>Elections — Contest—Best Evidence.</p> <p>12. Where an election contest is confined to the substantial fairness of an election and not to the regularity of the canvass, the ballots themselves are the best evidence, and must be put in evidence to show a different result.</p> <p>Elections — Contest—Pleading.</p> <p>13. To allege in an election contest that certain persons cast illegal ballots is but a conclusion of law.</p> <p>Evidence — Presumptions—Performance of Official Duty.</p> <p>14. In the absence of pleading or proof in an election contest that certain irregularities changed the result, and nothing to the contrary appearing, it is presumed that official duty has been regularly performed.</p> <p>ON PETITION FOB BEHEADING.</p> <p>Waters and Watercourses — Irrigation Districts — Elections—Notice.</p> <p>15. Description in notice of election on proposed irrigation district: “Thence northerly to the northwest corner of the northeast quarter of said section 31; thenee easterly to the southwest corner of the southeast quarter of section 29, said township and range; thenee northerly to the northeast corner of the southwest quarter of the southeast quarter of said section 29; thence easterly to the southwest corner of the northwest quarter of the southwest quarter of section 26 in said township and range” — is not indefinite or vague merely because the order read “northwest” where the notice in italics reads “northeast,” so that the notice includes more territory than the order.</p> <p>Waters and Watercourses — Irrigation Districts — Elections—Notice.</p> <p>16. Since the courts under specific provisions of Laws of 1911, page 403, Section 35, must disregard any error, irregularity, informality or omission which does not injuriously affeet the substantial rights of the parties to proceeding to establish irrigation district, error, if any, in description of proposed irrigation district’s territory in the notiee of election by which land not intended to be included was described gave the owners of other land in the district no ground for complaint, especially after the election was held and they participated therein.</p>

<p>Courts — Records—Entries Nunc Pro Tunc.</p> <p>1. Where the court granted leave to plaintiff to amend the complaint by interlineation, but the proceedings relative to the amendment were not entered upon the journal, a nuno pro tune order setting forth the facts might be made upon the memory of the court alone, especially where an inspection of the reeord indicated that there was an omission, as it contained no reference to the argument and overruling of a demurrer.</p> <p>Pleading — Want of Verification. — Waiver.</p> <p>2. Where the complaint was amended by interlineation and no motion was made to strike it out for want of a verification, the objection was waived.</p> <p>Frauds, Statute of — Operation and Effect — Executed Contracts.</p> <p>3. If a piano was sold, delivered and accepted, the contract was executed, and the statute of frauds could not be invoked to defeat a recovery of the purchase price.</p> <p>Trial — Remarks of Judge — Rulings on Evidence.</p> <p>4. In an action for the price of a piano which plaintiff claimed had been sold, delivered and accepted, where defendant claimed that the piano was left at his house on trial, and that he never agreed to purchase it, but notified plaintiff to remove it, the court’s remark, in ruling on an objection based on the statute of frauds, that the sale of personal property did not have to be in writing and that “this is an executed agreement,” was improper, as it assumed the main fact in dispute.</p> <p>[As to manner or tone of court in instruction or remark as prejudicial error, see note in Ann. Cas. 1912A, 1006.]</p> <p>Appeal and Error — Harmless Error — Remarks of Judge.</p> <p>5. Where the evidence appeared to be evenly balanced, such remark constituted reversible error, and was not cured by a general instruction to disregard any remark which the eourt might have made during the course of its rulings upon the testimony, as under the circumstances the remark should have been expressly withdrawn.</p> <p>Witnesses — Cross-examination of Party — Irrelevant Matters.</p> <p>6. Considerable latitude should be allowed in plaintiff’s cross-examination of defendant regarding the particulars of a conversation testified to by defendant, though the matters elicited had little, if any, relevancy, as, the witness being adverse, plaintiff could not know this in advance.</p> <p>Evidence — Matters Explanatory of Facts in Evidence.</p> <p>7. Where, in an action for the price of a piano which defendant claimed was only left with him on trial, the drayman who delivered the piano testified that he said to defendant and his wife that they had a nice piano and that one of them said that they thought so, defendant should have been permitted to testify as to whether he intended to tell the drayman that he had bought the piano, as the answer to the drayman’s remark was ambiguous, and there was no contractual relation preventing him from stating, the impression which he intended to convey.</p>

<p>Statutes — Construction—Adoption.</p> <p>1. Where a statute of one state or jurisdiction is subsequently adopted and enaeted by the legislature of another state or jurisdiction, it will be assumed that the construction placed on such statute by the courts of the jurisdiction from whence it was taken was also adopted.</p> <p>[A s to construction to be given to adopted statutes, see note in Ann. Cas. 1917B, 651.]</p> <p>Banks and Banking — Acquisition of Stock — Statute.</p> <p>2. Section 4569, subdivision “b,” L. O. L., as amended by General Laws of 1915, page 432, declares that no state bank shall accept as collateral or be the purchaser of its own capital stock except in cases where the taking of such collateral or such purchase shall be necessary to prevent loss upon a debt previously contracted in good faith and in such eases unless the full payment of the debt is made, such stock shall be sold by the bank within six months from the date it was received as collateral or acquired by purchase. Section 4583, subdivision “d,” L. O. L., as amended by General Laws of 1911, page 242, declares that if any officer, etc., of any bank shall willfully and knowingly violate any of the provisions of the act for whieh a penalty is not provided, he shall be deemed guilty of a misdemeanor. National Banking Act declares that no association shall make any lean or discount on the security of the shares of its own capital stock, or be the purchaser or holder of any such shares, unless such security or purchase shall be necessary to prevent loss upon a debt previously contracted in good faith, and such stock shall within six months from the time of its purchase be sold or disposed of or in default a receiver may be appointed. Held, that as the state statute whieh was last enacted was obviously a copy of the federal act, and decisions of the federal courts construing the federal act, to the effect that only the United States could take advantage of the violation of the provision, must be treated as also adopted, a state bank which received its own stock as collateral for a pre-existing debt may enforce its lien as against subsequent lienholders, though it delayed disposing of the collateral more than six months.</p>

<p>Adverse Possession — Color of Title — Grants from State — Boundaries.</p> <p>1. A deed of land from the state constitutes color of title which relieves proving boundaries of tenancy, and is sufficient basis for title by adverse possession.</p> <p>[As to what amounts to color of title sufficient to sustain adverse possession, see notes in 14 Am. Dec. 580; 88 Am. St. Rep. 701.]</p> <p>Adverse Possession — Waiver of Claim to Land — Sufficiency of Evidence.</p> <p>2. Evidence held insufficient to support a finding that defendant in an aetion to quiet title to land had waived his right to claim title by adverse possession.</p> <p>Estoppel — Sufficiency of Proof.</p> <p>3. Conduct amounting to estoppel should be clearly established by a preponderance of the evidence, and, where testimony of witnesses of equal credibility is in direet conflict, there is no preponderance.</p> <p>Frauds, Statute of — Title to Land — Waiver of Claim.</p> <p>4. A purchaser of land with knowledge that another claims title in fee by adverse possession cannot set up estoppel as against such claimant on a subsequent verbal statement that he waived his claim, since such purchaser was charged with a knowledge of the law that ordinarily the title to real property cannot be acquired except by deed and that a contract for the sale of land is void unless the same or some note or memorandum thereof expressing the consideration be in writing and subscribed by the party to be charged.</p>

<p>Mmr'cipal Corporations — Sidewalks — Personal Injuries — Presenting Claim.</p> <p>1. Provision of Vale City charter, requiring all claims for damages to be filed within six months after accrual, does not require filing of claim for personal injuries on a sidewalk, whieh claim the charter, Section 200, further prohibited the eity from paying.</p> <p>Municipal Corporations — Sidewalks—Construction and Repair.</p> <p>2. Though there is no municipal duty to build sidewalks in the first instance, and the eity may leave its streets in a state of nature, yet, if it does build walks, it must use reasonable diligence to keep them in repair, and cannot shift the responsibility without giving other adequate remedy.</p> <p>[As to extent of street or highway whieh municipality is under duty to keep in repair, see Ann. Cas. 1915B, 279.]</p> <p>Municipal Corporations — Sidewalks — Construction and Repair — Injuries to Persons.</p> <p>3. Since Vale charter, Section 197, requiring abutting owners to build sidewalks, and Section 200, absolving the city from liability for personal injuries, due to defective walks, do not impair the remedy against city officers, or the abutting owner, if negligent, one injured on a defective sidewalk cannot recover from the city.</p>

<p>Sales — Action for Price — Answer—Construction—Statutes.</p> <p>1. An averment in an answer that plaintiff supplied defendant as trustee with the goods with the understanding and with positive agreement that goods were to be paid for pro rata, and that the defendant was not .bound nor held personally, and was only liable as such trustee for pro rata share of assets of the business, when liberally construed, as provided by Section 85, L. O. L., was a claim by defendant to be entirely exempt, and that plaintiff was to look to the trust estate entirely for the purchase price.</p> <p>Appeal and Error — Weight of Evidence — Questions for Jury.</p> <p>2. The verdict of a jury forecloses debate about the weight of the evidence.</p> <p>Assignments for Benefit of Creditors — Purchases by Trustee — Liability.</p> <p>3. Where a business is transferred to one in trust, with agreement to purchase goods and to keep the business going and pay off creditors, the trustee has power to purchase goods and bind the trust estate therefor.</p> <p>Principal and Agent — Selling Agent — Conditions of Purchase.</p> <p>4. Where a trustee of a business gives an order for goods to an agent, and it is agreed that he will not be bound personally, the principal is bound by such condition, although in the absence of such condition the trustee would be personally liable; it being the duty of the agent to transmit the condition along with the order.</p> <p>[As to when beneficiaries are bound by the acts of trustees in contravention of their trusts, see note in 63 Am. St. Rep. 467.]</p> <p>Sales — Persons Liable — Evidence.</p> <p>5. Although an agent did not have authority to sell goods below listed price, evidence of a conversation between the purchaser, trustee of a business, and sueb agent as to seller looking only to a pro rata share of the assets for the purchase price, was competent to show that the sale was to the buyer as trustee, and not as an individual. (Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice McCamani dissenting.)</p>

<p>Habeas Corpus — Dismissal—Pendency of Proceedings.</p> <p>1. An appeal from a judgment denying a petition for habeas corpus to obtain the custody of an infant will not be dismissed because respondents, by a decree of the County Court, entered on the same day as the judgment, were awarded custody of the child under a petition for adoption; a writ of review in the adoption proceedings having been issued and being pending in the Circuit Court.</p> <p>ON THE MERITS.</p> <p>Habeas Corpus — Appeal—Scope.</p> <p>2. Sabeos corpus to determine right to custody of infant is equitable in nature, and the review on appeal is de novo, despite Section 669, L. O. L., providing for appeal in habeas corpus “in like manner and with like effect as in an action”; no impairment of the writ being within the legislative power, and the equitable nature, as to infants, having existed at common law.</p> <p>[As to matters to be considered in determining the custody of child on habeas corpus, see note in Ann. Cas. 1914A, 740.]</p> <p>Habeas Corpus — Custody of Infant — Rights.</p> <p>3. Evidence that father, on death of child’s mother, and after statement of her sister, “Give the child to me and I will raise it,” said, “You shall have it,” does not justify the eourt, in habeas corpus on petition of the father, in ignoring his natural rights.</p> <p>Habeas Corpus — Custody of Infant — Rights.</p> <p>4. Where the father, on death of child’s mother, and after statement of her sister, “Give the child to me and I will raise it,” said, “You shall have it,” he could revoke such agreement.</p> <p>Words and Phrases — “In Like Manner” — “Like.”</p> <p>5. When the statute says that an appeal in a proceeding by habeas corpus shall be “in like manner * * as in an action,” it means that the mode of appealing is the same as the mode of appealing in an action at law (per Mr. Justice Harris, specially concurring, citing Words and Phrases, “Like”; “Like Manner”).</p>

From Multnomah: Calvin U. Gantenbein, Judge. This is an action by the United Brokers Company, a corporation, against the Southern Pacific Company, a corporation. From a judgment allowing a nonsuit, plaintiff appealed. Reversed and new trial ordered. Department 2. Statement by Mr. Justice Bean. This action was brought by the plaintiff to recover $394.72, damages to one carload shipment of tomatoes while in transit from Dania, Florida, to Portland, Oregon.

From Umatilla: Gilbert W. Phelps, Judge. In Banc. Statement by Mr. Justice McGamant. This is a proceeding brought under tbe authority of Sections 6635-6659, L. O. L., to determine the rights of the respective parties to the waters of the Umatilla Eiver. The United States appeared and asserted the rights of sundry of its Indian wards, claiming for them water adequate for the irrigation of so much of their allotments as are situate in the bottoms of the Umatilla Eiver.

<p>Bills and. Notes — Duress—Threat of Prosecution.</p> <p>1. Lawfulness of the prosecution of a child threatened by his creditor if his father does not secure his debt does not save from duress the note of the father so given as security.</p> <p>Bills and Notes — Duress—Removal—Instructions.</p> <p>2. An instruction, in an action on a note given by defendant to secure a debt of his son under threat of prosecution of the son, that if the jury find that the duress was removed and thereafter defendant voluntarily made a payment on the note that would operate to remove the defense of duress is defective in not stating how or when the duress might be removed, so that from the mere payment the jury might find the removal, when, possibly, the constraint continued till limitations against prosecution expired.</p> <p>[As to ratification of contract voidable for duress, see note in Arm. Cas. 1913E, 438.]</p> <p>Pleading — Answer—Waiver of Objections — Admission of Evidence.</p> <p>3. Evidence having been admitted without objection tending to sustain the defense undertaken to be raised by averments of the answer alleging the facts constituting the defense, the averments, though not setting forth as new matter such defense, should be treated as sufficient.</p>

From Clatsop: James A. Eakin, Judge. Action in replevin by J. M. Martindale against A. J. Scott. At the close of plaintiff’s case, on motion of defendant the court allowed a judgment of nonsuit, from which plaintiff appealed. Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). In Banc. Statement by Mr. Justice Benson. This is an action in replevin.

<p>Trial — Reading Exhibits.</p> <p>1. Section 866, l¿, O. L., providing that when a writing is shown to a witness and proved by him it shall be read to the jury while the witness is on the stand or on his recall as a witness, does not authorize reading, by plaintiff as part of his testimony, of exhibits already in the record, not proved by him or introduced while he was on the stand.</p> <p>Trial — Order of Proof — Right to Regulate.</p> <p>2. The court may regulate the order of proof and postpone the introduction of exhibits.</p> <p>Evidence — Hearsay—Opinion Evidence.</p> <p>3. In an action to recover attorney’s fee, it was not error to refuse to allow plaintiff to testify to the report of one of the cases in which he appeared, as a leading case; the proffered testimony being hearsay about what the editor thought of the importance of the principle involved.</p> <p>Attorney and. Client — Action—Value of Services — Evidence—Judgment-roll.</p> <p>4. It was proper, on cross-examination of plaintiff attorney, to introduce a judgment-roll in a former case in which he had been engaged for defendant, to show that plaintiff had gone over the same ground, and did not have to labor so hard as represented.</p> <p>Attorney and Client — Evidence — Action for Compensation — Admissions Against Interests — Question for Jury.</p> <p>5. In an action for legal services performed between certain specified dates, independent of the matter of accounting alleged in the answer and as combating plaintiff’s claim under the general issue, defendant could show that it requested a statement of plaintiff’s entire services to a certain date, and that Exhibit “C” was what he gave in response; it being in a sense an admission, against plaintiff’s interests, enough to take the question to the jury.</p> <p>Evidence — Hypothetical Questions.</p> <p>6. If there is any evidence on the point, a party has a right to cover it with a hypothetical question, although there may be contradictory testimony.</p> <p>Appeal and Error — Hypothetical Questions — Testimony to Support— Presumption.</p> <p>7. In the absence of a direct statement in the bill of exceptions that there was no testimony supporting a hypothetical question, it will be presumed that the court did its duty in permitting the question to be framed as it was.</p> <p>Evidence — Opinion Evidence — Competency—Value of Legal Services.</p> <p>8. Where a witness had testified that he knew about the ease and was interested in reading the decision and heard the hypothetical question propounded to others, the court did not err in allowing the witness, a practicing lawyer of fourteen years’ experience to give his opinion as to the reasonable value of plaintiff’s services in some of the litigation mentioned in the complaint, it being for the court to determine competency and for the jury to weigh the testimony.</p> <p>Evidence — Opinion Evidence — Competency—Value of Legal Services.</p> <p>9. Allowing defendant’s witness to testify that he had been a deputy city attorney and was familiar with the litigation against defendant and to enumerate the important eases in which he had been engaged for the city was proper to show the professional standing of the witness and his knowledge, and was sufficient to let in his opinion about the reasonable value of plaintiff attorney’s services to defendant.</p> <p>Appeal and Error — Evidence—Opinion Evidence — Discretion—Harmless Error.</p> <p>10. In suit for legal services, allowing deputy city attorney familiar with city’s litigation against defendant for which plaintiff sought compensation, to testify as to the necessity of continued attendance at meetings of the council was within the discretion of the court, and in any ©vent harmless to plaintiff, in view of answer that it would depend entirely on what was taking plaee at meetings, etc.</p> <p>Appeal and Error — Admission of Testimony — Harmless Error.</p> <p>11. In suit involving compensation for plaintiff’s services- rendered defendant in a suit with city, allowing city attorney to testify that it was not intention of city to destroy defendant’s plant was harmless as to plaintiff.</p> <p>Trial — Argumentative Testimony — Striking Out.</p> <p>12. That part of the witness’ answer that if the deeree granted defendant the use of the premises so long as they operated a sawmill it would be more valuable than the fee simple was properly stricken, being merely argumentative.</p> <p>Appeal and Error — Remarks of Court — Reversible Error.</p> <p>13. In a suit for legal services, plaintiff in rebuttal sought to explain the items in his bill for services, known as Exhibit “C,” whereupon the court said: “Why do you wander on that way? All that has been before the jury. * * I am not going to permit you to go over things again and again.” Plaintiff thereupon claimed the right to explain an item of the exhibit, whereupon the court answered, “Go on and state it; if the jury can stand it I can.” Held, that if the language of the court was impolite or even erroneous, it.was not of sufficient importance to justify a disturbance of the verdict.</p> <p>[As to manner or tone of court in remark or instruction as prejudicial error, see note in Ann. Cas. 1912A, 1006.]</p> <p>Trial — Testimony not Offered in Chief — Exclusion.</p> <p>14. In suit for legal services, testimony as to whether defendant’s officer made more than one employment of plaintiff was a matter for plaintiff’s case in chief; and, he having had an opportunity to testify once on the same subject, that was sufficient.</p> <p>Attorney and Client — Evidence—Admissibility.</p> <p>15. In suit for legal services, testimony that defendant was satisfied' with the decree in a certain ease was wholly immaterial.</p> <p>Attorney and Client — Action for Services — Instructions.</p> <p>16. Testimony to the effeet that defendant’s officer called upon plaintiff attorney for a bill for his services, which bill being furnished, defendant paid, was sufficient to justify the instruction that if there was a settlement and defendant paid all that was required of it, plaintiff was not entitled to recover for such period.</p> <p>Appeal and Error — Reservation of Grounds of Review — Submission of Issue — Necessity of Submitting Instruction.</p> <p>17. Plaintiff, not having framed and submitted an instruction relating to the legal effect of a document, cannot eomplain that the court did not interpret it, but submitted it to the jury as a matter of fact.</p> <p>New Trial — Impeachment of Quotient Verdict — Affidavits of Jurors.</p> <p>18. In case of a quotient verdiet, the affidavits of the jurors cannot be received to impeach it.</p>

<p>Mortgages — Mining Claims — Foreclosure—Evidence—Fraud.</p> <p>1. In a suit to foreclose a mortgage on a mining company covering balance due on mining claims and for services, evidence held not. to show bad faith or fraud as- to the value of such mining claims.</p> <p>Corporations — Fraud—Evidence.</p> <p>2. Evidence held insufficient to show connection of a mortgagee with any fraudulent transactions in mining stock of the mortgagor, a corporation, on a foreclosure against such corporation.</p> <p>Corporations — Enforcement of Stockholder’s Liability — Mortgage Foreclosure — Assessments.</p> <p>3. In a mortgage foreclosure against a mining corporation, under a defense by a trustee in bankruptcy that the mortgage was fraudulent and that the mortgagee was an owner of stock, a prayer that such stock be assessed for an unpaid balance thereon could not be granted.</p> <p>[As to the liability of stockholder to the creditors of the corporation, see note in 3 Am. St. Rep. 806.]</p>

<p>Appeal and Error — Review—Exceptions.</p> <p>1. The action of the trial court in ordering the testimony to be taken by the court reporter, while irregular and improper, cannot be reviewed, where no objection or exception was saved at the time or after the return of the judge to the bench; for exceptions are necessary for errors to be reviewed.</p> <p>Trial — Conduct—Hearing of Evidence.</p> <p>2. It is improper for the trial judge to vacate the bench and direct the parties to present their testimony before the court reporter.</p> <p>[As to absence of judge during trial as reversible error, see note in 122 Am. St. Rep. 721.].</p> <p>Contracts — Validity—Immoral Contracts.</p> <p>3. Where plaintiff, a married man, on the strength of an agreement by defendant, a woman, to marry him on procuring a divoree from his wife, coupled with a reciprocal promise on his part, advanced money to defendant and performed services for her benefit without any expectation of reimbursement, the transaction was immoral and illegal, and being further tainted by the fact that the parties indulged in meretricious relations, so that plaintiff, on defendant’s refusal to carry out the agreement, eannot recover on notes the consideration of which was the services and funds advanced.</p> <p>[As to validity of promise of marriage, see note in Ann. Cas. 1914A, 695.].</p> <p>Breach of Marriage Promise — Actions—Burden of Proof.</p> <p>4. One asserting a breach of marriage promise has the burden of proving the same.</p> <p>Breach of Marriage Promise — Actions—Evidence.</p> <p>5. In an action for damages for breach of marriage promise, plaintiff asserting that after a new promise by defendant to marry him he destroyed notes evidencing her indebtedness, evidence held insufficient to establish such promise.</p>

From Hood River. William L. Bradshaw, Judge. Department 2. Statement by Mr. Justice Mc-Camant. This is a suit for the specific performance of a parol agreement for the division of a water right which prior to the agreement had been the sole property of the defendant Kirkpatrick.

From Multnomali: Calvin U. Gantenbein, Judge. Suit by the Pierce Arrow Sales Company, a corporation, against G. H. Irwin to foreclose a lien for work and material furnished in the repairing of an automobile under the conditions of a written contract. The defendant appeals from a decree in favor of plaintiff. Submitted on briefs under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). In Banc. Statement by Mr. Justice Bean.

From Multnomah: Henry E. McGinn, Judge. Department 2. Statement by Mr. Justice Bean. This is an action brought by School District No. 45 for the use and benefit of the Peerless Pacific Company, a corporation, in pursuance of Section 6266, L. O. L., as amended by Chapter 27, Laws of Oregon for 1913, page 59.

From Multnomah.: Calvin TJ. Gantenbein, Judge. Department 1. Statement by Mr. Justice Burnett.

From Multnomah: Robert Gr. Morrow, Judge. Department 1. Statement by Mr. Justice Burnett. The plaintiff brings suit to foreclose a real estate mortgage executed by Rostad and wife to one Thorsen to secure their three promissory notes given to the latter, one for $20,000 and two others each for $5,000. The plaintiff claims to be the owner of the large note and says that the defendant Flanders owns the other two.