Volume 95 — Oregon Reports

<p>Appeal and Error—Notice—Description of Judgment.</p> <p>1. An appeal could not be sustained, notice being of appeal from decree of June 17th, the undertaking on appeal being indefinite as to date of decree, and there being nothing in the transcript to identify the deeree mentioned in the notice with that shown in the transcript as rendered June 26th.</p> <p>Appeal and Error—Ineffectual Attempt—Second Appeal.</p> <p>2. An attempt to take an appeal, ineffectual because of misdescription of deeree in notice of appeal, does not preclude taking of seeond appeal.</p> <p>ON THE MERITS. '</p> <p>Appeal and Error — Findings of Trial Court of Strong Advisory Weight in Equity.</p> <p>3. Since trial court has heard the witnesses orally, and has had a chance to observe their manner and appearance, and a much better opportunity to judge of their truthfulness than appellate court, findings and decisions of trial court have a very strong advisory weight with appellate eourt.</p> <p>Escrows—Evidence Sufficient to Sustain Finding That Deed was not Wrongfully Delivered.</p> <p>4. In action to cancel deed, evidence held sufficient to show that third party, with whom plaintiff left blank deed in escrow, had delivered deed to defendant, an innocent purchaser, in violation of instructions.</p>

<p>Fraud — Mere Silence not Fraud Where No Duty to Speak.</p> <p>1. Individuals dealing at arm’s-length must look out for themselves, and mere silence is not fraud where no duty is imposed upon one to speak, but a half truth spoken with the design of influencing the opposite party, where he has not equal means of knowledge, is in itself fraudulent.</p> <p>Evidence — No Presumption of Knowledge of Ordinances.</p> <p>2. The proposition that every man is presumed to know the law applies only to the general laws of the land, and not to city ordinances, except in proceedings in municipal courts, in view of Section 90, L. O. L.</p> <p>Exchange of Property — Fraudulent Concealment.</p> <p>3. Where one exchanging a building for other real property has aetual knowledge of a city ordinance prohibiting the use of a building simultaneously as a garage and as a residence, he is guilty of fraud where he states that the first floor was rented as a garage for $25 a month, and the second floor for $25 as living or housekeeping rooms, and that the property could be continued for the uses named; the other person not knowing of the ordinance.</p> <p>Cancellation of Instruments — Offer to Do Equity not Necessary Where Court may Protect Defendant.</p> <p>4. The maxim that he who seeks equity must do equity is not violated by failure of the plaintiff, in a suit to rescind an exchange of lands, on the ground of fraud, to allege restoration of and offer to return the consideration, for by his application he tacitly invites the court to protect the defendant by decreeing a restoration in consideration of a rescission.</p> <p>PETITION POE REHEARING.</p> <p>Contracts — Representation Made Recklessly Without Knowledge of Truth Fraudulent.</p> <p>5. One of the elements respecting a fraudulent statement warranting a rescission of a contract is that the one making it must either know that it is false, or make it recklessly without any knowledge of its truth and as a positive assertion.</p> <p>Fraud — One Making Reckless Statement of Fact must Disclose Subsequent Knowledge of Falsity.</p> <p>6. If a party is so reckless as to make a statement which in fact is untrue and while negotiations are in progress he discovers it is not true, it is his duty to state the whole truth to the other party.</p>

<p>Frauds, Statute of — Lessee may not Claim Possession to be Under Oral Contract to Purchase.</p> <p>1. One who entered a parcel of land under a contract for a deed and at the same time received a written option to purchase a nearby traet, the option being a separate writing, and entered the second tract under a verbal lease the first year, giving the grantor one third of the crops, and under written leases for subsequent years, he cannot maintain that the contract for deed, and the written option constituted but one transaction, for the purpose of conveying to him the combined tracts at an agreed consideration, and that he was in possession of the seeond tract under an oral contract to purchase.</p>

<p>Bail — Justification of Sureties may be Before Clerk — “Allowing Bail” —“Admitting to Bail.”</p> <p>1. “Admitting to bail,” or “allowing bail,” as it is sometimes termed, is a judicial act which purely ministerial officers, such as clerks of court, have no authority to perform, in the absence of an express statute; but by “allowing bail” or “admitting to bail” is not meant the formal justification, subscription, or acknowledgment by the sureties, the term first mentioned relating to the order determining that the offense is bailable and fixing the amount of undertaking, and “taking the bail” meaning the final acceptance or approval of it by the court, and an undertaking was valid although justification of sureties was before the clerk.</p> <p>Criminal Law — Good Cause Shown for Continuance.</p> <p>2. Where an attorney appeared on date set for trial and showed that defendant’s attorney had enlisted in the United States army and was unable to be present at the trial, and that defendant had not been able to obtain counsel, and that absent counsel possessed all the facts constituting defense, the court had good cause for continuing the case for the next term of court, and defendant eannot complain; there being nothing to show that the continuance was against his wishes.</p> <p>[As to absence of counsel as ground for continuance, see note in Ann. Cas. 1913C, 431.]</p> <p>[As to war conditions as ground for continuance, see note in 3 A. L. E. 333.]</p>

<p>Landlord and Tenant — Tenant on Shares Surrendering Before Productivity cannot Recover of Landlord for Services.</p> <p>1. Where the lessee of a dairy ranch, who was to share the profits with the landlord, surrendered possession before the ranch had become productive, he could not recover of the landlord for services rendered.</p>

<p>Patents — Agreement to Give Right to Sell on Terms to be Agreed on not a Contract.</p> <p>1. An agreement to give right to dispose of patented article, the terms and conditions to be agreed on later by the parties, but to be in the “bounds of reason and on about the same basis as has been customary in similar deals before, by other people,” does not amount to a contract; the minds of the parties not meeting on any specific proposition.</p>

<p>Corporations — Corporate Property not to be Sold in Controversy Between Stockholders.</p> <p>1. _ In a suit by a stockholder against other stockholders and against the corporation to have a trust declared in lands belonging to the corporation, etc., arising out of fraud of defendant stockholders, the property of the corporation will not be sold, where another stockholder, not a party to the action, will be prejudiced, and plaintiff on prevailing, if satisfaction cannot be had from the other stockholders under the judgment, will be given a lien for his proportionate share in the corporation; fraud having been false representations as to cost of the corporate property.</p> <p>Joint Adventures—Eights as Between Members Controlled by Principles of Partnership.</p> <p>2. The rights of joint adventurers in matters between themselves are governed by the principles constituting and controlling the law of partnership.</p> <p>[As to the mutual rights and liabilities of parties to joint adventure, see notes in 17 Ann. Cas. 1022; Ann. Cas. 1912C, 202; Ann. Cas. 1916A, 1210.]</p> <p>Joint Adventures—Member may not Make Secret Profit.</p> <p>3. Where plaintiff and defendant entered into a joint adventure consisting in purchasing land for resale, defendant had no right to purchase the land from himself, either directly or indirectly, or to make profit on the deal, except with the full knowledge and consent of plaintiff.</p> <p>Joint Adventures—Burden on Member to Show Good Faith.</p> <p>4. Where plaintiff and defendant entered into a joint adventure consisting in purchasing certain land for resale, defendant to act as plaintiff’s agent in purchasing the property, the burden of proof was upon such defendant, in an action by plaintiff for an accounting on account of secret profits made by him, to show that he fully informed plaintiff of all the facts within his knowledge bearing upon the transaction.</p> <p>Principal and Agent—Agent may not Make Secret Profit.</p> <p>5. An agent who malees a seeret profit in the execution of his trust as such agent may be compelled to account to his principal.</p> <p>Principal and Agent — Knowledge Acquired by Agent in Prior Transaction Knowledge of Principal.</p> <p>6. The rule that notice to the agent is notice to the principal applies not only to knowledge acquired by the agent in the particular transaction, but to knowledge acquired by him in a prior, transaction and present to his mind at the time he is acting as such agent in the particular transaction, provided it be of such character as he may ■communicate to his principal without breach of professional confidence.</p>

<p>Waters and Watercourses — Lower Appropriator cannot Compel Excessive Use by Upper Owner to Get Surplus. •</p> <p>1. A lower appropriator has no right to compel one who has taken out water above him to maintain an excessive use of water so that the former may get the benefit of the surplus, although the upper appropriator has permitted the lower appropriator to construct a ditch on his land to convey surplus waters.</p>

<p>Wills—Testamentary Capacity not Lost by Guardianship.</p> <p>1. One under guardianship oí his person and estate does not lose his right to make a testamentary disposition, if he retains sufficient mental eapaeity to execute a will.</p> <p>Wills—Testamentary Capacity of Aged Testator Under Guardianship Shown by Evidence.</p> <p>2. Evidence held sufficient to show that aged testator, under guardianship of his person and estate, possessed testamentary capacity.</p> <p>Wills—Evidence Insufficient to Establish Undue Influence.</p> <p>3. In a proceeding to- set aside a will of an aged testator under guardianship in favor of a daughter, who took care of him, evidence held insufficient to establish undue influence on the part of the daughter and her husband.</p>

<p>From Marion: George G. Bingham, Judge.</p> <p>Department 2,</p> <p>This is a proceeding in mandamus to compel the defendants to issue to the plaintiffs a charter to do a banking business in the district of St. Johns, in the City of Portland.</p> <p>The defendant, Mr. Olcott, is Governor and Secretary of State, and Mr. Hoff is State Treasurer; and together they constitute the state board of bank commissioners which elected the defendant, Bennett, as state superintendent of banks. It is alleged that the City of Portland has a population of 200,000; that the St. Johns district, formerly the City of St. Johns, which is now in the City of Portland, is situated more than two miles, to wit, twelve miles, from the central portion of Portland.</p> <p>About March 27, 1919, the plaintiffs, acting through L. A. Bass, made a written application to defendant "W. H. Bennett, as state superintendent of banks, for a priority right to organize a bank in the St. Johns district, in the City of Portland, by whom they were informed that it would be necessary to show a desire and need upon the part of residents in that section before he would grant a charter. It is then alleged:</p> <p>“That the petitioners above named are citizens of the United States and residents and inhabitants of the State of Oregon, and that all save two of your petitioners are actual residents within the St. Johns district, in the City of Portland; that on or about the sixteenth day of April, 1919, petitioners associated themselves together by articles of incorporation for the purpose of establishing a state bank to do a general banking business within the City of Portland, Multnomah County, Oregon; said bank to be situated in the St. Johns district of said city upon the terms and conditions set out in said articles of incorporation, a copy of which, marked exhibit ‘A,’ is attached hereto, referred to and made a part hereof; that thereupon petitioners elected S. A. Mulkey, J. W. Davis and L. A. Bass, majority stockholders in said corporation, as •directors thereof and thereupon subscribed in full for the full amount of the capital stock of 500 shares of the par value of $100 per share and further subscribed the sum of $5,000 for organization expenses of said corporation, a copy of said subscription list, marked petitioners’ exhibit ‘B, ’ being hereby attached, referred to and made a part hereof.</p> <p>“That thereafter and on said date, petitioners filed with the defendant, Will H. Bennett, superintendent of banks, triplicates of the said articles of incorporation, a list of stockholders, showing names, addresses and number of shares subscribed by each and made written application to.said defendant for a charter as a state bank to do a general banking business in St. Johns district of the City of Portland, Multnomah County, Oregon, and at the same time tendered to defendant $31 as organization and corporation fees therefor.”</p> <p>On April 23, 1919, the defendant Bennett, as such superintendent, refused to grant a permit and made the following indorsement on the articles of incorporation :</p> <p>“ * * for the reason that in my opinion the organization of such a bank in St. Johns is not justified at the present time. (Sec. 20.) There is already a national bank at this point which is the amalgamation of two national banks formerly located there, and also a state bank which expects to move from the outskirts of St. Johns into the heart of the district. The state bank, as you know, has been in the hands of this department temporarily, but has been completely reorganized and permitted to reopen.”</p> <p>The petitioners appealed from that decision and refusal, to the state banking board which held a hearing thereon, April 29, 1919, and on May 2, 1919, it sustained the decision of Bennett, as superintendent of banks, in his refusal to grant the permit, but in its decision provided:</p> <p>“That if the First Trust & Savings Bank of St. Johns hereinafter referred to had not moved into the business district of St. Johns, by July 1,1919, an application for a charter would be considered.”</p> <p>The First Trust & Savings Bank was a banking corporation, formerly doing business in the St. Johns district, and it became insolvent on February 19, 1919, and for such reason was taken under control by the state superintendent of banks. The assets thereof were assigned to one Dornbecher who paid all the claims against it in full.</p> <p>It is alleged that, between the date of petitioners’ application for permission to organize and the date of the hearing on appeal to the state banking board, the defendant Bennett, as superintendent of banks, disregarding the rights of petitioners and the priority of their application, attempted to revive the First Trust & Savings Bank of St. Johns by means of supplementary articles of incorporation, into a new association of persons with a capital stock of $50,000, to be then removed to the business section of the St. Johns district and resume business under the corporate name of “Bank of Commerce,” which was the identical name chosen by petitioners, as set forth in their application to defendant Bennett and in their articles of incorporation.</p> <p>It further appears that at the hearing on the appeal, Bennett represented that the reorganized First Trust & Savings Bank and the Peninsula National Bank of St. Johns would be sufficient to care for the banking business of that district, and that the organization of a new bank therein would be detrimental to the interests of those two banks.</p> <p>It is then alleged that the act of Bennett, in his attempt to revive the First Trust & Savings Bank of St. Johns is illegal, null and of no effect, and that permission to use the old charter of that bank is in effect to establish a new bank in subversion of the priority and rights of the petitioners; that the total capital stock of the three banks would be $150,000, and that the bank deposits within the St. Johns district aggregate $1,500,-000, and that the actual ratio of deposits therein is ten to one and the ratio of deposits to required capital stock that of fifteen to one. Petitioners allege that the refusal of the defendants to grant them a charter “is an abuse of discretion, partial, arbitrary, discriminatory and unjust.” Plaintiffs tendered the statutory fees.</p> <p>To the alternative writ the defendants filed a demurrer, upon the grounds:</p> <p>First, “That the court has no jurisdiction over the subject of the action.”</p> <p>Second, “That said writ fails to state facts sufficient to constitute a cause of action against said defendants, or any of them.”</p> <p>The demurrer was overruled and judgment was entered in favor of the plaintiffs, as prayed for in their petition; and the peremptory writ was issued, from which the defendants appeal, claiming that the court erred in not sustaining the demurrer which is the only question presented.</p>

<p>Divorce — Decree for Custody of Children Final While Conditions Remain Same.</p> <p>1. A deeree fixing the eustody of a child is final when conditions existing at the time of its rendition remain the same, and should be modified only when conditions have changed, and then only for the child’s best interests.</p> <p>Divorce — Decree Awarding Custody of Children Given Effect in Another State Until Conditions Change.</p> <p>2. In the absence of fraud or want of jurisdiction affecting its validity, a divorce judgment awarding the custody of their minor children should be given full force and effect in other states as to the right of custody at the time and under the circumstances of the decree’s rendition, although it has no controlling effect in another state as to faets and conditions arising subsequently, and the courts of sueh other states may, upon change of faets and conditions, award the custody otherwise than in the original deeree.</p> <p>Divorce — Decree Awarding Custody of Children Res Ad judicata in Another State Only as to Facts and Conditions Before Decreet</p> <p>3. A divoree deeree of one state awarding custody of minor children is not res adjudicate, in the courts of another state, except as to facts and conditions before rendition of the deeree, and as to subsequent facts and conditions it has no extraterritorial force.</p> <p>Divorce — Decree Ordering Custody of Children not Binding Under Full Faith and Credit Clause in Other State in Which They have Become Domiciled.</p> <p>4. A divorce deeree of one state ordering the eustody of a child is not binding upon the courts of another under the full faith and credit clause of the federal Constitution after the child has become domiciled in the latter state.</p> <p>Divorce — Decrees for Custody of Children Should be Modified Only upon Proper Notice to Adverse Party.</p> <p>5. As a general rule, an application for a modification of a divorce decree as to eustody of the children should be made to the court upon proper notice to the adverse party.</p> <p>Divorce — Right of Divorced Parent Having Custody of Children to Change Domicile upon Complying With Decree.</p> <p>6. A California divoree deeree awarding custody of minor children to the mother, permitting the father to visit them at stated times, and providing that the children should not be removed from the jurisdiction without the court’s permission, does not prevent the mother taking them from the state by the court’s permission from changing her domicile to another state, where the divoree was absolute, since, the minor children being in the mother’s custody, her residence is their residence.</p> <p>Divorce — Decree Reawarding Custody of Children of Divorced Parents Void for Defective Service.</p> <p>7. A notice attempted to be served in Oregon upon a divorced wife, a bona fide resident of Oregon, for modification of a California interlocutory divorce decree as to custody of minor children, was without extraterritorial force, and not being served upon the mother’s attorney, and she not appearing at the hearing, and the ten days after service required by the citation for appearing not being in accordance with the spirit of Code of Civil Procedure of California, Sections 410, 1005, the decree rendered upon such citation awarding the children to the father was not valid.</p> <p>Evidence — No Judicial Notice of Official Character of Sheriff of Other State.</p> <p>8. A court of one state cannot take judicial notice of the official character of a sheriff of a county in another state.</p> <p>Divorce — Effect of Pinal Decree on Modification Changing Custody of Children.</p> <p>9. Since, in view of Civil Code of California, Sections 131, 132, a California court in making a final decree in a divorce action would not, without a notice and hearing, change the interlocutory decree as regularly modified and reverse the same as to the care and custody of children, and deprive a party of his or her day in court, where a second modification of interlocutory decree as tq custody of children was void, it did not affect the final decree, which did not purport to change the status of the parties as established by the interlocutory decree and modifications.</p> <p>Divorce — Admission of Evidence of Facts Prior to Decree upon Question of Changing the Custody of Children.</p> <p>10. In a proceeding to modify a divorce decree as to custody of children, the change of circumstances, the conduct of the party, the morals of the parents, their financial condition, the children’s age and devotion of either parent to the children’s best interests, are controlling, and it was not error to admit testimony of facts and circumstances prior to the rendition of the divorce decree which would aid in determining if the conditions were changed.</p> <p>Appeal and Error — That Incompetent and Immaterial Evidence has been Disregarded by the Trial Court Sitting Without Jury Presumed.</p> <p>11. Incompetent and immaterial evidence admitted upon the trial of a cause by the court without a jury is presumed disregarded by the court where there is other competent testimony to support the court’s findings.</p> <p>Habeas Corpus — Husband Seeking Custody of Children Awarded to Wife upon Divorce must Prove Conditions Warranting Change.</p> <p>12. Where the custody of children was awarded to the wife in a divorce decree in California, and the children became domiciled with the mother in Oregon, in a habeas corpus proceeding by the father, it was incumbent upon him to show that conditions had so changed since the granting of the divorce decree as to warrant a change in custody.</p> <p>Infants — State may Determine Status of Infant Citizens.</p> <p>13. The state, as parens patriae, has the undoubted right to determine the status or domestic and soeial condition of infant citizens domiciled within its territory.</p>

<p>Judgment—Full Faith and Credit Clause Applies Only to Final Adjudication in One State Sued on in Another.</p> <p>1. Article IV, Section 1, of TJ. S. Constitution, requires that full faith and credit shall be given in each state to the judicial proceedings of every other state; but in order to maintain an action on a money judgment recovered in another state the judgment must be a final adjudication in full force in the state where rendered, capable of being there enforced by final process.</p> <p>Divorce — Final Judgment for Alimony in One State Entitles Plaintiff to Sue for Enforcement of “Debt” Therefor in Other State.</p> <p>2. Where a suit terminates in a divorce deeree, providing for the custody and maintenance of a minor child and for alimony to the wife, that part of the deeree relating to divorce is protected by Article IV, Section 1, of IT. S. Constitution, relating to full faith and credit, as are also the provisions as to maintenance and alimony, if they are finalities, an alimony decree being generally considered a “debt” of record as mueh as any other judgment for money; and in another state, where the distinction between actions at law and suits in equity are preserved, plaintiff may resort to an action at law to enforce the debt created by the decree.</p> <p>[As to enforcement of decree for alimony by action at law, see notes in 3 Ann. Cas. 579; 8 Ann. Cas. 700; 10 Ann. Cas. 547; 20 Ann. Cas. 1068.]</p> <p>Divorce — Plaintiff, to Whom Alimony Payable, Proper Party to Sue Therefor in Another State.</p> <p>3. Where a divorce deeree of one state required defendant to pay installments ’for alimony for maintenance “to the plaintiff,” she is the proper party to bring action in another state to recover for unpaid installments.</p> <p>Divorce — Courts of One State not Required to Enforce Alimony or Maintenance Decree of Other, if Subject to Modification by Rendering Court.</p> <p>4. If a part of a divoree deeree of another state relating to alimony or maintenance is not final, but is subject to modification by the court rendering it, then neither Article IV, Section 1, of XT. S. Constitution, relating to full faith and credit, nor comity, compels the courts of another state to enforce that part of the deeree, since no other than the court rendering the deeree could undertake to administer relief without bringing about conflict of authority.</p> <p>Divorce — Where Court has Power to Modify Accrued Installment of Alimony or Maintenance, Decree is not Final, Within Full Faith and Credit Clause.</p> <p>5. Whether an accrued installment of alimony is to be treated as a final judgment, entitled to protection of Article IV, Section 1, of IT. S. Constitution, relating to full faith and credit, must be determined by the law of the state in which the decree is entered, and if the law of such state gives discretionary power to modify an accrued installment, then such installment does not come within such constitutional provision.</p> <p>Divorce — Decree for Maintenance and Alimony Subject to Modification as to Accrued Installments not Entitled to Full Faith and Credit in Other State.</p> <p>6. In view of Gen. Stats. Minn. 1913, Sections 7123, 7129, having been construed by the Minnesota Supreme Court as giving the decreeing court discretionary power to modify the divorce decree as to alimony and maintenance and revoke or change the amount of matured installments, because of change of conditions since original adjudication, whieh is not res judicata as to subsequent conditions, the deeree is not final as to maintenance and alimony, and not within the protection of Article IV, Section 1, of TJ. S. Constitution, relating to full faith and credit as to sueh matured installments.</p> <p>Divorce — Requirement That Plaintiff Allege and Prove Alimony in Maintenance Decree a Finality to Recover Thereon in Another State.</p> <p>7. Plaintiff, bringing law action to collect past-due installments on divorce decree for alimony and maintenance, is not entitled to the full faith and credit of the decree, under Article IV, Section 1, of IT. S. Constitution, unless she alleges and proves the decree’s finality as to alimony and maintenance installments past due; but such installments are entitled to full faith and credit where, after they have become due, they are decreed or adjudged by the original court to be presently payable.</p> <p>Divorce — Decree for First Installment of Alimony Held Sufficiently Final in Sister State to Entitle to Judgment.</p> <p>8. A deeree for present payment of a fixed sum as alimony or maintenance, even though not absolutely final under the law of the state where rendered, is nevertheless, when unpaid, at least prima facie final in a sister state, and, in the absence of evidence to the contrary, is sufficient to support a judgment in the sister state, so that plaintiff is entitled to a judgment for the first installment of alimony, due at time of rendition of original decree.</p> <p>Divorce — Alimony Decree for Money Presently Due Treated in Sister State as Final Decree Until Modified.</p> <p>9. In an action for judgment for past installments of alimony and maintenance, if the original deeree had been modified as to amounts due at date of original deeree, sueh modification would be enforced, or, if defendant asked time of the state in which enforcement is sought, he would be allowed to proceed in the court of original instance to modify the decree; but, until the decree is modified in the state of its origin, it is to be treated as a final judgment.</p> <p>Divorce — Alimony and Maintenance Installments not Enforceable in Sister State Until Adjudicated into Fixed Sum Payable Presently.</p> <p>10. In an action for past-due installments of alimony and maintenance upon a decree in a sister state, from an averment that on a certain date “and for more than two years prior thereto plaintiff and defendant were husband and wife,” and the subsequent averment that the suit terminated in a divorce decree, awarding alimony in installments, “the first payment to be October 20, 1913,” the inference may be drawn that the first installment was payable on the date of rendition of the deeree and may be enforced; but subsequent installments may not be enforced until adjudication in state of original decree transforms them into a fixed sum payable presently.</p> <p>Costs — May be Refused on Reversal in Law Action.</p> <p>11. In an action at law, though the appeal has resulted in reversal of judgment for plaintiff, the defendant need not be allowed a judgment for costs and disbursements.</p>

<p>Exceptions, Bill of — Application for Extension — Oral Notice.</p> <p>1. Under Buie No. 53 of the Circuit Court, a bill of exceptions, tendered by appellants within extended time allowed by Circuit Court on their application after oral notice to respondent’s attorneys of their intention so to apply, was tendered in good time.</p> <p>ON THE ME'BITS.</p> <p>Exceptions, Bill of — Use of Form Prescribed With Transcript of Whole Testimony Sufficient.</p> <p>2. A bill of exceptions conforming to the form prescribed by the proviso in Laws of 1913, page 651, and so having transcript of the whole testimony, is sufficient.</p> <p>Exceptions, Bill of — Judge must Authenticate the Testimony.</p> <p>3. Under Sections 172, 932, L. O. L., authentication of the testimony for purpose of bill of exceptions must be by the judge; the reporter’s certificate indicating only prima facie correctness.</p> <p>Exceptions, Bill of — Signing by Other Than Trial Judge Allowed by Stipulation.</p> <p>4. The appellate court will not decide whether the bill of exceptions could properly be settled by a judge other than the one’ who tried the ease; the acceptance thereof by attorneys providing that they will not object to any judge signing it on the ground that it should have been signed by the trial judge.</p>

<p>Death—Action to be Maintained. Directly by Beneficiary.</p> <p>1. Under employers’ liability law, Section 4, as to action for loss of life due to negligence, the aetion is to be maintained directly by whatever beneficiary is entitled to sue, and not through any intermediary.</p> <p>Death—Statute Creates Several not Joint Cause of Action in Favor of Widow and Lineal Heirs Which Dies With Her.</p> <p>2. Under employers’ liability law, Section 4, giving a right of aetion for death to the widow of the person killed, his lineal heirs “or” adopted children, the widow has the exclusive right to sue for death of her husband in her own name; and, where she does not prosecute, her cause of action dies with her, and the husband’s lineal heirs, children by a former wife, cannot maintain the aetion.</p> <p>Evidence—Common Learning as to Meaning of Conjunction Placed Before Last of Series.</p> <p>3. It is common learning as a matter of grammar that when in an enumeration of persons or things the conjunction is plaeed immediately before the last of the series, the same connective is understood 'between the previous members.</p> <p>Death—Persons Entitled to Sue.</p> <p>4. Employers’ liability law, Section 4, enumerating persons who may sue for death, is in derogation of common law, and its terms are not to be expanded by implication.</p>

<p>Appeal and Error — Eight of Eeview — Inconsistent Act.</p> <p>1. Act of plaintiff in suit for accounting by defendant as having wasted' a trust fund, in obtaining an order for delivery to him of a life policy, which he had put up as security, held, not so inconsistent with his attitude on the trial as to defeat his appeal.</p> <p>Appeal and Error — Decision Eeviewable — Pinal Decree.</p> <p>2. Deeree dismissing, on the ground of a bequest to plaintiff being void, suit for accounting is final as regard his right of appeal, and not affeeted in that respect by his subsequently obtaining order permitting withdrawal from files a paper offered in evidence.</p> <p>Appeal and Error — Serving and Filing Undertaking — Effect of Omission.</p> <p>3. Failure to serve and file undertaking, one of the acts for perfecting appeal enumerated by Section 554, L. O. L., as amended by Laws of 1913, page 619, concluding: “And after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise,” does not defeat appeal, but is an omission after notice of appeal, correction of which, under Section 550, subdivision 4, may be permitted.</p> <p>Appeal and Error — Notice of Appeal — Service—Amendment of Eeturn.</p> <p>4. The court on appeal will permit amendment of the return on the notice of appeal to correctly state the facts as to service.</p> <p>Appeal and Error — Transcript—Sufficiency.</p> <p>5. The transcript on appeal is sufficient where, taking it and the abstract together, the court has before it everything neeessary to enable it to pass on the ease.</p> <p>ON THE MERITS.</p> <p>Trusts — Trustee Estopped from Denying Creation of Trust.</p> <p>6. Trustee, having accepted appointment as such and having received trust fund, will be estopped from questioning the creation of the trust, and from denying the right of beneficiary to the trust fund.</p> <p>Trusts — Termination of Trust by Trustee.</p> <p>7. If trustee for any reason deemed that the trust should be terminated and the money paid over to the beneficiary, the matter should have been presented by him to the court, and authority therefor obtained from the court.</p> <p>Trusts — Trustee to Assume Validity of Trust.</p> <p>8. A trustee must assume the validity of the trust under which he acts until it is actually impeached, though he may have some suspicion that there may have been fraud or collusion in the appointment or settlement.</p> <p>Trusts — Trustee’s Knowledge of Facts That Would Defeat Beneficiary’s Title.</p> <p>9. If a trustee obtains knowledge of facts that would defeat the title of the beneficiary and give it to another, he is not justified in communicating facts to the other person; his duty being to manage property for beneficiary, and not make admissions prejudicial to rights of beneficiary.</p> <p>Trusts — Duty of Trustee to Use Ordinary Prudence.</p> <p>10. A trustee must use sueh care for the safety of the trust fund as a man of ordinary prudence uses in his own business of a similar nature, and is held to a strict accountability for a faithful performance of the duties of his trust.</p> <p>Trusts — Appropriation of Property by Trustee’s Agent.</p> <p>11. If a trustee employs an agent, and the agent appropriates the property intrusted to him, the trustee will be held responsible.</p> <p>Trusts — Liability of Trustee for Trust Funds Deposited in Bank.</p> <p>12. If money is deposited in the bank in such a manner that it is not under trustee’s own exclusive control, as where money is deposited, so that it cannot be drawn without the concurrence of another person, it is at the peril of the trustee, and he is liable for any loss occasioned thereby.</p> <p>Trusts — Investment of Trust Funds.</p> <p>13. A trustee, who receives trust fund in cash, is required to invest funds in a manner that will be safe and yield a reasonable rate of return to beneficiary, and must follow direction and powers in instrument of trust, if any, as to time, manner, and kind of investment, or in absence of such directions and powers must be governed by general rules of court or statutes, and by sound discretion and good faith.</p> <p>Trusts — Trust Funds to be Invested in Safe Securities'.</p> <p>14. A trustee with cash funds to invest must not speculate, but make investments with a view to permanent investment, considering both probable income and probable safety of capital, and should invest in government or state securities, or other gilt-edged securities, or in bonds or mortgages on unencumbered real estate.</p> <p>Wills — Reference to Other Will.</p> <p>15. Where husband’s will referred to will of deceased wife, and so described it as to leave no doubt as to its identity, and adopted provision therein with reference to certain trust fund, the provisions of both wills should be considered in relation to the trust fund.</p> <p>Wills — Construction According to Testator’s Intent.</p> <p>16. Under Section 7347, L. O. L., testator’s design governs, if it ’’an reasonably be ascertained.</p> <p>Trusts — Action for Accounting of Trust Fund may be Against Trustee and Third Person.</p> <p>17. In suit for accounting of trust fund by beneficiary of trust, third person, to whom trustee lent money pursuant to plan entered into by trustee, beneficiary, and third person, whereby third person was to permit beneficiary to have money before termination of trust, was properly joined with trustee as defendants.</p> <p>Trusts — Reasonableness of Attorney’s Fees.</p> <p>18. Where trustee made loan of $5,000 trust fund, with the understanding that the borrower was to permit beneficiary to have money before termination of trust, attorney’s fee of $1,000, charged beneficiary by third person, to be paid out of the trust fund, held excessive; but, in view of considerable trouble caused third person by the indorsement of numerous checks by beneficiary, the third person will be allowed fee of $150 for legal services.</p> <p>Trusts — Compensation of Trustee.</p> <p>19. Trustee will be compensated for services up to time that nearly all of the fund is expended, but not thereafter.</p> <p>McBride, C. J., Dissenting.</p>

<p>Eminent Domain—Raising Street Grade Constitutes No Additional Burden upon Surrounding Property.</p> <p>1. A municipal council may raise the grade of a street, and such -action constitutes the imposition ,of no additional burden upon surrounding property.</p> <p>Municipal Corporations—Completion of Municipal Improvement According to Advertised Plan not Within Scope of Writ of Review.</p> <p>2. In an aetion to recover assessments for a street improvement, whether the work was completed according to the advertised plan is a question of fact, into which the Supreme Court cannot inquire on a writ of review; the official city declaration being conclusive.</p> <p>Municipal Corporations — Local Improvement Assessments may be Repeated Until Property Benefited lias Paid Just Proportion of Expense.</p> <p>3. If a city has undertaken an improvement within the scope of its powers, and has actually accomplished it before an assessment therefor has been found to be irregular, the municipality may return again and again to the assessment until the property benefited is finally required to pay its just proportion of the expense.</p>

<p>Contracts—Contract for Divorce.</p> <p>1. Where husband and wife made property agreements “in anticipation of a divorce about to be procured,” and where husband facilitated trial of wife’s divorce suit by making trip for special purpose of being served, did not appear in suit, and permitted wife to obtain divorce on grounds which he knew to be false, the transaction held an agreement by which wife should procure divorce, and as such void as against publie policy.</p> <p>[As to the validity of contracts intended to facilitate procuring divorce, see notes in 11 Ann. Cas. 377; Ann. Cas. 1915A, 811; Ann. Cas. 1918E, 902.]</p> <p>Pleading — Admissions — Cancellation of Note Executed Pursuant to Collusive Agreement.</p> <p>2. In divorced wife’s action to cancel her note and mortgage to husband upon ground that they were void and without consideration, because executed pursuant to collusive divorce agreement, husband, after asserting validity of agreement and after alleging that in reliance thereon he did not appear or defend divorce suit though he had a valid defense, cannot question court’s jurisdiction to render decree of cancellation upon ground that parties are in pari delicto.</p> <p>Contracts — Return of Money Paid Under Collusive Agreement.</p> <p>3. Court, in canceling divorced wife’s note and mortgage to husband on ground that they were executed pursuant to collusive divorce agreement, will not decree return of money actually paid thereon; the contract, os to money paid over, being an executed contract, and wife being without a remedy in regard thereto.</p> <p>Cancellation of Instruments — Collusive Divorce Agreement — Cancellation of Note and Mortgage.</p> <p>4. In divorced wife’s suit to have note and mortgage to husband canceled upon ground that they were void and without consideration because executed pursuant to collusive divorce agreement, wife held entitled to cancellation as against objection that, if note and mortgage were against publie policy, no relief should be granted, since wife could successfully defend in suit to foreclose mortgage upon ground that it was void and without consideration.</p> <p>ON PETITION FOB REHEARING.</p> <p>Equity — Jurisdiction Dependent on Facts Existing at Time of Complaint.</p> <p>5. Jurisdiction of equity must depend on the actual facts as they exist at the time the complaint was filed and the relief which is sought to be obtained by both the plaintiff and the defendant as' evidenced by the pleadings.</p> <p>Cancellation of Instruments — Party to Void Note and Mortgage Though in Pari Delicto, may Sue to Cancel Obligation Before Maturity.</p> <p>6. Conceding that parties to an agreement, void because a collusive divoree agreement, were in pari delicto, equity has jurisdiction to cancel note and mortgage, given pursuant thereto, when suit is brought before the maturity of the obligation; the maker of the note not being sufficiently protected by defense which she might make on the note and mortgage if they were sued on by an innoeent purchaser for value.</p> <p>Costs — Of Transcript Properly Divided Where Plaintiff had Benefit of Transcript Filed by Defendant.</p> <p>7. Where both parties appealed, and plaintiff had the benefit of the transcript filed by defendant, the costs of the transcript would be divided.</p>

<p>Parties — Error in Substitution of Sheriff’s Successor as Defendant Waived by Answering and Seeking Affirmative Relief.</p> <p>1. In a replevin aetion brought against the sheriff, an order of substitution of the sheriff’s successor in office as defendant if erroneous was waived by defendant by answering and seeking affirmative relief.</p> <p>Pleading — Answer may Aid Complaint as Against Demurrer.</p> <p>2. In a replevin action against a sheriff, wherein the sheriff demurred, and the sheriff’s successor in office was substituted as defendant, although the complaint was not amended, the substituted defendant by voluntarily answering and supplying all the allegations lacking in the complaint thereby made tbe complaint good.</p> <p>Attachment — Deed Record of Real Estate and Personalty Admissible to Show Plaintiff’s Purchase of Property Replevied.</p> <p>3. In a replevin action brought against the sheriff for property, including a tractor and automobile attached, a deed record disclosing a conveyance to plaintiff of the property was admissible to prove the purchase of the property by him, notwithstanding that the date of transfer and recording was subsequent to that of the attachment, and that the instrument was recorded in the deed record.</p> <p>Evidence — -Letter Signed by Vice-president Inadmissible Where No - Authority Shown.</p> <p>4. In a replevin aetion against sheriff to recover a tractor and an automobile whieh had been attached, a letter signed by the vice-president of the company from which plaintiff had purchased the property, proposing the organization of a corporation to become a binding contract upon acceptance, was not admissible to show ownership of the property by the judgment debtor in the attachment suit; there being no evidence of the vice-president’s authority.</p> <p>Appeal and. Error — Refusal of Continuance not Considered Where BUI of Exceptions Did not in Terms Show that Continuance was Ashed.</p> <p>5. In replevin against sheriff for an automobile and tractor, an assignment of error for refusing a continuance until the minutes of the company from which plaintiff had purchased the property could be obtained could not be considered where bill of exceptions did not show in terms that continuance had been asked.</p> <p>Appeal and Error — Bill of Exceptions must be Accompanied by Authenticated Transcript of Testimony to Review Directed Verdict.</p> <p>6. Assignments of error based on rulings relative to motions for nonsuit and directed verdiet will not be considered where the transcript of the testimony, although certified by the court reporter, is not attached to the bill of exceptions, and is not authenticated by the trial court.</p> <p>Appeal and Error — Assignments of Error in Denying New Trial Insufficient Where Proceedings on Motion are not Authenticated.</p> <p>7. Where an assignment of error based on denial of a motion for new trial is supported in the record only by a copy of the motion for new trial, to which are attached copies of certain affidavits and exhibits which are in no way authenticated except by the certificate of one of defendant’s attorneys, with no record of rulings by the court or any counter-affidavits or other appearance by the plaintiff, or evidence as to whether the motion was filed within the statutory time, it will not be considered on appeal.</p>

From Jackson: Frank M. Calkins, Judge. Department 2. The plaintiff appeals from a decree dismissing her complaint in a suit brought for the purpose of annulling a street assessment.

<p>From Jackson: Frank M. Calkins, Judge.</p> <p>Department 2.</p> <p>In this suit the plaintiff seeks to avoid liability for the expense of the improvement of a street in front of his lots. Being dissatisfied with the decree rendered in favor of the defendants, he appeals.</p>

<p>Appeal and Error—No Reversal for Excessive Damages in Absence of Prejudicial Error;</p> <p>1. Under Article VII, Section 3, of the Constitution, as amended by Laws of 1911, page 7, in a servant’s action for injuries, where the jury was properly instructed, and there is no prejudicial error in the record, the only assignment of error being the amount of the verdict, it was for the jury only to find the amount of plaintiff’s damages, and, it having done so by unanimous verdict, the Supreme Court cannot reverse as for excessive damages, a ground of defendant employer’s motion for a new trial.</p> <p>Damages—Twelve Thousand Dollar Verdict for Broken Wrist and Impaired Arm not Invalid.</p> <p>2. Where a servant injured through a fall of staging sustained a broken wrist and was subjected to great pain and mental anguish, while the wrist was permanently injured so that the servant could not use it or his hand, the use of his arm being greatly impaired, the Supreme Court will not set aside verdict for $12,000, though trial court stated he was of opinion recovery should not be for more than $2,000.</p> <p>[As to what is excessive verdict in action for personal injuries not resulting in death, see notes in 16 Ann. Cas. 8: Ann. Gas. 1913A, 1361.]</p>

Original proceeding in mandamus in Supreme Court. Upon a petition filed in this court on December 4, 1919, by S. Benson, B. A. Booth and E. E. Kiddle, constituting the State Highway Commission, an alternative writ of mandamus was issued directing Ben W. Olcott, as Governor, Ben W. Olcott, as Secretary of State, and O. P. Hoff, as State Treasurer, constituting the State Board of Control, to sell the state’s bonds to the amount of $1,000,000, or to show cause for not doing so.

From Baker: Gustav Anderson, Judge. In Banc. This action was commenced in the Circuit Court of Baker County, October 27, 1916. The plaintiff seeks to recover possession of the strip of land containing a fraction over three acres described in his complaint, and also damages in the sum of $3,000 for injury done to the premises by defendant and for alleged wrongful ousting of plaintiff and for depriving him of possession thereof.

Prom Multnomah.: George W. Stapleton, Judge. Department 1. This is a suit wherein it is sought to compel the immediate redemption and cancellation of a bond issue of the defendant school district, and to restrain the expenditure of the proceeds of the sale of such bonds for any other purpose than such redemption.

From Lane: George F. Skipworth, Judge. Department 2. This is a suit to foreclose a mortgage for $900 and interest. A decree was rendered in favor of plaintiffs, from which defendants appeal. The defendants, by their answer, pleaded as a counterclaim that the plaintiffs misrepresented the land conveyed To defendants by plaintiffs in exchange for real property of defendants to their damage in the sum of $4,000. The reply put in issue the averments of the answer.

From Multnomah: George W. Stapleton, Judge. Department 1. The plaintiff began this suit for a divorce by filing a complaint on April 8, 1918, charging the defendant with cruel and inhuman treatment. The defendant answered by denying the accusations made against her and by making a counter-charge of cruel and inhuman treatment against the plaintiff. There was a decree for the plaintiff. The defendant appealed.

From Tillamook: George E. Bagley, Judge. Department 1. The individual defendants are the supervisors and contractor of the corporate defendant, the Big Nestucca Drainage District. The plaintiff owns a quarter-section of land in Tillamook County in the territory controlled by the Drainage District.

<p>Specific Performance — Oral Lease for More Than One Year Specifically Enforced Because of Improvements by Tenant.</p> <p>1. A court of equity mil require specific performance of an oral lease for a term of more than one year, and therefore void under the statute of frauds, where the tenant has entered into the premises and has incurred expense in making valuable permanent improvements and changed his position to such an extent that a refusal on the part of the lessor to perform operates as a fraud on the rights of the lessee.</p>

<p>Executors and Administrators — Executor and Legatee Entitled to Appeal from Allowance of Claims Against Estate.</p> <p>1. The exeeutor and trustee of an estate as such may, in his representative capacity, appeal from an order allowing a claim against the estate, and where such executor was the next of kin and a beneficiary under the will, he has such an individual interest as will entitle him to appeal from the allowance of the claim.</p> <p>Executors and Administrators — Executor’s Appeal from Order Allowing Claim not Affected by Order Requiring Payment.</p> <p>2. The right of an exeeutor to appeal from an order of the county judge, directing him to pay a claim, given by Section 1241, L. O. L., cannot be abridged by the County Court by an order requiring him to pay the claim under penalty of removal.</p> <p>Executors and Administrators — Payment of Claims Without Order of County Court No Ground for Removal.</p> <p>3. That an executor paid out funds of the estate without order of the County Court is no ground for removal, in view of Section 1241, L. O. L., providing for payment of claims found just by the executor although the more prudent course is for an exeeutor to procure an order of court before paying out money.</p> <p>Executors and Administrators — Petition held to State Conclusions and No Ground for Removal of Executor.</p> <p>4. A petition, stating that the exeeutor wrongfully paid money tb persons not entitled to the same, and that such moneys should have been paid to claimant, etc., does not state grounds for removal of the executor; the allegations being mere conclusions of tbe pleader.</p>

From Multnomah: John P. Kavanaugh, Judge. This is a motion to dismiss an appeal. The facts are as follows: This cross-appeal is from a decree of the Circuit Court for Multnomah County in two causes consolidated by the court into one. Both causes originated in suits to foreclose mortgages upon a tract of real property in Multnomah County.

From Marion: Percy E. Kelly, Judge. Department 2. This is an action brought by the plaintiff to recover the value of certain land in Marion County, Oregon, turned in to the defendant by him, as a part payment upon a certain other tract of land situated in Polk County, Oregon, which he was purchasing from the defendant. The provisions of the contract, which are material upon this appeal, are as follows: “This Agreement, made this 11th day of Feb. 1911, between H. Gr.

From Multnomah: William N. Gate ns, Judge. Department 1. This is a suit in equity by which the plaintiff seeks a cancellation of an assessment levied upon his property to aid in payment of the expense of improving Holgate Street in the City of Portland by paving the same. It is the same improvement mentioned in Ukase Investment Co. v. City of Portland, ante, p. 176, (186 Pac. 558), in which an opinion has this day been rendered.

<p>Corporations — Stock Subscription may be Made in Either Property or Services Under Agreement Providing Therefor.</p> <p>1. Payment for stock subscribed may be made in property or services, if so agreed upon between corporation and subscriber; but, in absence of such agreement, the subscription is deemed payable in cash.</p> <p>Corporations — Corporation’s Debt to Subscriber may, Under Agreement With Corporation, be Credited upon Amount Due upon Unpaid Subscription.</p> <p>2. As between a solvent corporation and a subscriber who is a creditor of the corporation, the parties may agree that the debt owing to the subscriber may be credited upon the payment due from him upon an unpaid subscription.</p> <p>Corporations — Subscriber’s Unliquidated Claim not to be Set Off in Equity Against Subscription.</p> <p>3. In absence of agreement or equitable ground of relief, a subscriber having an unliquidated claim against a corporation cannot go into equity and have the claim there liquidated and set off against the amount due on subscription; the corporation having a right to have the validity of the claim tried at law with the aid of a jury.</p> <p>Corporations — AUowance of Claim of Subscriber and Credit for Amount in Payment of Assessment, Legal.</p> <p>4. In absence of fraud, corporation may allow claim presented for machines furnished or services rendered by subscriber and credit amount in payment of assessment.</p>

<p>Execution—False Representations by Purchaser or Judgment Creditor to Prevent Competition Avoids Sale.</p> <p>1. As a general Tule, false representations" made by a purchaser or by a judgment creditor to prevent competition will render a sale void, and if the representation is untrue, it is usually immaterial whether the person making the Representation did or did not know of its falsity.</p> <p>Execution — Person Having Valid Interest in Property to be Sold may Announce His Interest.</p> <p>2. If a party has an interest in or a valid claim.against property to be sold under execution, he may announce such interest or claim without invalidating sale.</p> <p>Mortgages — Single Money Decree Could not be Given in Proceedings to Foreclose First and Second Mortgages in Single Proceeding.</p> <p>3. Coneeding that first mortgage given by four persons could be foreclosed in same proceeding with second mortgages given by two of the four, a single money decree could not be given.</p> <p>Mortgages — Bidding at Sale not Chilled by Statement of One Interested That Bidders of Property of One Defendant Would Take Subject to Second Mortgage.</p> <p>4. Where M. and L. gave to an investment company a first mortgage on property of each, and thereafter M. gave to company a second mortgage on his property and a bank bought all the interest of L. with knowledge of seeond mortgage, it was not a valid objection, on ground of chilling bidding, to confirmation of sale on foreclosure of first mortgage that representative of company stated that bidders of property of M. would take “subject” to seeond mortgage, since, notwithstanding Section 423, L. O. L., failure to make junior encumbrancer a party does not invalidate decree, though foreclosure of first lien does not bar equity of redemption.</p>

<p>Trial—Findings of Fact to Dispose of All Issues Raised by Pleadings.</p> <p>1. In trials by the court the findings of fact must be as broad as the issues and must dispose of all questions raised by the pleadings.</p> <p>Logs and Logging—-Failure to Find on Material Issues in Vendor’s Action for Price of Timber held Error.</p> <p>2. In action by vendor of standing timber for balance of purchase priee against purchaser who had not removed all of the timber during the period provided therefor by the contract, where purchaser’s allegation that by subsequent agreement the timber on part of the tract was eliminated from the original contract, and that on account of notice from vendor purchaser had suspended operations for certain period during life of contract were denied by vendor, court’s failure to make finding on the issues so raised held material error.</p> <p>Logs and Logging — Timber Contract Conveys Title Subject to be Defeated on Grantee’s Failure to Remove Timber Within Specified Time.</p> <p>3. Contract of sale of standing timber operates to convey the present title to the timber, but the estate thus created is upon condition liable to be defeated on grantee’s failure to remove timber within time specified.</p> <p>Logs and Logging- — Purchaser of Standing Timber cannot Recover Price Paid upon Failure to Remove Timber Within Required Time.</p> <p>4. Purchaser of standing timber for a cash consideration under agreement to remove within specified time cannot recover money paid, upon his title to the timber being defeated by his failure to remove the timber within the time specified therefor.</p> <p>Logs and Logging — Vendor not Entitled to Balance of Purchase Price for Timber not Removed Within Specified Period Where not Cut and Manufactured into Cordwood for Purpose of Ascertaining Price as Required by Contract.</p> <p>5. Where the purchase priee for standing timber was to be ascertained by the actual cutting of the timber and the manufacturing thereof into cordwood which was to be measured as a basis for computation of the amount to bo paid, vendor upon purchaser’s failure to remove all of the timber within specified time could not recover balance of purchase price for amount not removed where such timber had not been eut and manufactured into cordwood, since vendor, relying on provision of contract requiring removal by certain date, is bound by other provision thereof as to ascertainment of priee.</p> <p>Logs and Logging — Vendor Required to Show Damages Suffered in Action for Purchaser’s Failure to Remove Standing Timber Within Specified Period.</p> <p>6. Vendor of standing timber cannot recover damages on purcnaser’s failure to cut and remove timber within specified period where price cannot be computed because dependent upon amount of cordwood into which timber can be manufactured, in the absence of a showing that he has suffered damages by purchaser’s breach.</p> <p>Logs and Logging — Vendor cannot Claim Full Contract Price as Measure of Damages for Purchaser’s Failure to Remove Timber Within Specified Period and Keep Title to Timber.</p> <p>7. Vendor of standing timber cannot, on purchaser’s failure to remove a part of the timber within the specified period, claim the full contract priee as a measure of damages for purchaser’s breach in absence of showing of other damage sustained, and keep the title to the timber which reverted to him by the expiration of the period within which it was to be removed.</p> <p>Logs and Logging — Complaint Insufficient to Show Damages to Vendor of Standing Timber Because of Purchaser’s Failure to Remove Within Required Time.</p> <p>8. In action by a vendor of standing timber against purchaser who failed to remove all of the timber within specified period, complaint alleging that vendor entered into an agreement to convey to third party the land upon wMeh the standing timber remained, without alleging that conveyance was aetually made or that third party had performed contract entitling him to conveyance, held insufficient pleading of damages sustained by vendor because of purchaser’s failure to remove timber within required period.</p> <p>Logs and Logging — Standing Timber Goes With General Title to Land Upon Expiration of Period of Time Provided for Removal.</p> <p>9. Where purchaser of .standing timber fails to remove a portion of the timber within the required time, the standing timber goes with the general title to the land after expiration of the period provided for removal.</p>

<p>Frauds, Statute of — Possession Taking Oral Contract to Convey Land Out of the Statute.</p> <p>1. To take an oral contract to convey land out of the statute of frauds, the necessary possession must have been taken by the purchasers under and in pursuance of the contract, and it is not enough that they were already on the land by virtue of some other arrangement with the seller, as that of his employees, but there must have been such an open and notorious change to the status of purchasers in possession as to have attracted the notice of other people.</p> <p>Specific Performance — Oral Contract to Devise Land to Employees not Enforceable in Absence of Showing of Change in Character of Possession.</p> <p>2. Decedent’s oral contract to devise to his employees certain land not specifically described, on which he and the employees were living, it being uncertain whether the land was to be devised to the employees or to them and their children, held not specifically enforceable against decedent’s administrator and his heir, in the absence of showing there was any change in possession by employees as such to possession as purchasers or prospective devisees.</p>

<p>From Lake: L. F. Conn, Judge.</p> <p>Department 2.</p> <p>This is a suit to enjoin the defendant from interfering with the work of the plaintiff, .upon a certain ditch owned and used by the plaintiff across the land of the defendant, carrying water diverted from Thomas Creek to the lands of the plaintiff, below those of defendant.</p> <p>The real question in the case is as to whether the plaintiff and his employees at the time in question were engaged in simply cleaning out and repairing the ditch in question, or were enlarging the same.</p> <p>The testimony of the plaintiff and one of his employees, who was working with him at the time, is to the effect that they were only cleaning out and repairing the ditch. The testimony of the defendant, on the other hand, is that they were enlarging the ditch; that he made no objection to plaintiff using the ditch or repairing the same, but did object to its enlargement; and that when he remonstrated with the plaintiff in relation to the enlargement they had words, and he finally ordered plaintiff off the place. There is no evidence of any actual physical interference with the work by the defendant.</p> <p>The testimony is none too definite and full, on either side; there is no evidence whatever -as to the size of the ditch, either before or after the work in question, and no evidence on either side as to the amount of water which had been carried through the same.</p> <p>The court below, upon an agreement between the parties, viewed the premises and had the points in controversy along the ditch pointed out to him by their respective engineers.</p> <p>Among other findings, the court made the following:</p> <p>“That on either the sixteenth or seventeenth day of October, 1917, the plaintiff, Simon Juanto, together with his employees, went upon the lands of the defendant, Gr. W. wright, traversed by said ditch, and wrongfully commenced enlarging said ditch beyond its original capacity, under the pretense that he was simply cleaning out the debris accumulated in said ditch, and that while so wrongfully trespassing upon the premises of defendant for the purpose of enlarging’ said ditch under such pretense, the defendant, without any force or violence, after remonstrating’ with the plaintiff about enlarging the ditch in question, ordered him off his land.</p> <p>“That defendant never objected to the cleaning out of the ditch by plaintiff, but simply forbade him to enlarge the same.</p> <p>“That the ditch has been enlarged was most apparent to the court, from itss appearance, when inspected by him, under the agreement of counsel, as the banks showed that the solid earth which had never before been disturbed, had been removed and the ditch materially enlarged.”</p> <p>The decree of the court was as follows:</p> <p>“This cause having been duly tried by the court, and the court having heretofore made and filed herein its findings of fact and conclusions of law based thereon, and now having duly considered the same, and at this time being fully advised in the premises,</p> <p>“It is hereby considered, ordered, adjudged and decreed, that this cause be dismissed, the temporary injunction herein dissolved, and that defendant have* and recover of and from the plaintiff, his costs and disbursements herein, taxed at $-. ’ ’</p> <p>From this decree plaintiff appeals to this court.</p>

From Multnomah: Calvin U. Gtantenbein, Judge. Department 2. The plaintiff alleges that at the special instance and request of the defendant she performed work, labor and services for him from October 16, 1917, until May 1, 1918, namely, housework and nursing and care of the defendant, “for the sum of $60 per month and her board and lodging, the reasonable value thereof, which said sum and said board and lodging said defendant-then and.there agreed to furnish and pay the…

From Multnomah.: John P. Kavanattgh, Judge. Department 2. This is an action upon an injunction bond executed by defendant N. M. Todd with the Massachusetts Bonding and Insurance Company as surety, and filed in a suit in Washington County, in which N. M. Todd was plaintiff and E. M. Chandler et al. were defendants, restraining defendants from removing wood or timber and other property from certain land. The order of injunction was issued May 31, 1916.

From Polk: Harry H. Belt, Judge. Department 2. This is a suit brought to enjoin special street assessments made by the defendant city against the property of plaintiffs, the grounds of the controversy being as follows: The common council of the ¡town of Monmouth, Oregon, a municipal corporation, improved the portion of the thoroughfare in said town, termed “Main Street,” from the west line of Monmouth Avenue to the east line of Broad Street, by grading and hard-surfacing the…

<p>Deeds — Deed Between Partners Conveying AU of Government Dot by Number as Originally Surveyed.</p> <p>1. Deed from one partner to another, describing one of the tracts conveyed as “lot 2 in section 26, township 25 south, range 13 west, Willamette meridian. * * Also all the following described tide-land in said county of Coos, State of Oregon, being the tidelands owned by [the partners]. The tide-lands lying east of and adjoining lot 2, section 26, township 25 south, range 13, W., W. M.” —conveyed the whole of lot 2 as originally surveyed and platted by the government, without regard as to whether the lands were uplands or tide-lands, or whether the grantor partner obtained liis interest through patent from the government to the remote predecessor of the partners, or through purchase from the state by the partners.</p> <p>Deeds — Evidence—Conveyance of Property by Name Known to and Used by Parties VaUd.</p> <p>2. If parties to a conveyance knew the particular traet by a name which they had adopted for it, the deed to the property by such names was a good description, and extrinsic evidence may be invoked to show that they had so known and designated the property among themselves, and therefore intended to convey it by the name.</p>

From Multnomah: George G. Bingham, Judge. Department 2. This is an action brought under Section 6266, L. O. L., by the City of Pendleton, a municipal corporation, for the use and- benefit of the Oregon Lumber Yard, an Oregon corporation, with principal office at Pendleton, against Jeffery & Bufton, another Oregon corporation, with principal office in Portland, and the American Surety Company of New York, a New York corporation, with an office in the City of Portland, and…

<p>Statutes — Constitutional Provision Demanding That There be but One Subject to be liberally Construe'd.</p> <p>1. While Article IV, Section 20, of the Constitution, demanding that every act embrace but one subject, and the matters properly connected therewith, which subject shall be expressed in the title, is mandatory, and failure to comr.ly with it renders a statute void, yet it should be reasonably and liberally construed to sustain legislation not within the mischief aimed against.</p> <p>[As to constitutional requirement as to form of enacting clause of statute as directory or mandatory, see note in 14 Ann. Car. 813.]</p> <p>Constitutional Law — Statute Presumed to be Constitutional and to Embrace Only One Subject.</p> <p>2. Every legislative act is presumed to be constitutional, and the conflict between a statute and the Constitution should be palpable before a legislative enactment should be held to be void on the ground that it embraces more than one subject or because the subject is not sufficiently expressed in the title.</p> <p>Statutes — “Subject,” in Constitutional Provision Providing That Subject be Expressed in Title, Given Broad Meaning.</p> <p>3. The term “subject,” in Article IV, Section 20, of the Constitution, demanding that every act which embraces but one subject, and matters properly connected therewith, which subject shall be expressed in the title, is to be given a broad and extensive meaning so as to allow the legislature full scope to inelude in one aet all matters having a logical or natural connection, and the subject may be as comprehensive as the legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several.</p> <p>[As to construction of constitutional provisions relative to titles of statutes, see notes in 1 Ann. Cas. 584; Ann. Cas. 1915A, 79.]</p> <p>Statutes — Provision in General Statutes Relating to Insurance Prohibiting Cities from Imposing License Taxes Properly Connected With Subject of Enactment.</p> <p>4. The provision within Laws of 1917, page 321, Section 3d, subdivision 6, which prohibits cities and towns from imposing additional license taxes, is properly connected with the subject of such chapter, which generally relates to the regulation and supervision of insurance, and the title is sufficient to include such provision.</p> <p>Municipal Corporations — Statute Prohibiting a Municipal Corporation from Imposing License Taxes on Insurance Agents No Invasion of Field of Municipal Legislation.</p> <p>5. Laws of 1917, page 321, Section 3d, subdivision 6, prohibiting cities from imposing a license tax on insurance agents, does not contravene Article XI, Section 2, of the Constitution, prohibiting the legislature from entering into the field of municipal legislation.</p> <p>Municipal Corporations — Legislature not Prohibited by Constitution from Enacting General Laws Concerning Municipal Corporations.</p> <p>6. The legislature is not prohibited by Article XI, Section 2, of the Constitution, from enacting general laws concerning cities and towns.</p> <p>Courts — Part of Opinion Relating to Power of Legislature to Enact General Laws Concerning Municipal Corporations not Obiter Dictum.</p> <p>7. Where, on appeal, the court had for consideration, first, whether a port was a “municipality” within the purview of Article XI, Section 2, of the Constitution, and, second, whether that section prohibited the legislature from enacting general laws affeeting corporate bodies embraced within it, the decision of the first question in the negative did not render a decision in the same opinion as to the second question obiter dictum.</p>

<p>Sales — Stipulation that Railroad Expense Bill Should Govern Quantity of Cordwood was Binding.</p> <p>1. Stipulation in contract that actual measurements of wood as shown by railroad expense bill were to govern the quantity of wood delivered to buyer was not subject to revocation by either party, and measurements made pursuant thereto and evidenced by expense bill of the railroad company, in the absence of fraud, or of such palpable mistake as would imply bad faith or a failure to exercise an honest judgment, are binding upon the parties.to the contract.</p> <p>Trial — Offer of Proof was Too General.</p> <p>2. Offer to prove that plaintiff, with the purpose and intent of cheating, wronging, defrauding and overreaching defendant, loaded each car of cordwood delivered to defendant in a loose, criss-cross manner, etc., followed by reading all of the formal allegations of the answer as to fraud of plaintiff in piling the wood, was properly rejected; the evidentiary facts not being set forth.</p> <p>Appeal and Error — Exclusion of Evidence not Reviewable Where Record Does not Show Evidence Expected.</p> <p>3. Where it does not appear from the record what the offer of proof was, nor how the witness would have answered if permitted to do so, it will not be held on appeal that there was error in exclusion.</p> <p>Trial — Exact Language .of Requests Need not be Embodied in Instructions Given.</p> <p>4. In suit involving question whether defendant received the number of cords of wood with which he was charged, where the court described a cord of wood to the jury in accordance with the statutory definition (Laws 1913, e. 325), defendant cannot complain that the charge is not in the exact language requested.</p> <p>Interest — Stipulation as to Interest on Account Enforceable.</p> <p>5. Where, under contract for sale and delivery of cordwood, it was stipulated that a certain amount was owing by defendant on account of prior transactions, and that interest should accrue on such amount from date of contract, contention that amount was part of an open, mutual, running account, and therefore should not be subject to interest, cannot be sustained.</p> <p>Evidence — Defendant has Burden of Proving Specific Defense in Nature of Setoff.</p> <p>6. The claim of defendant that he returned or left on the yards a certain number of cords of wood, with which his account should be credited, is in the nature of an offset or payment, and the court, after plaintiff had made out a prima facie case, properly charged the jury that defendant had the burden of providing his specific defense.</p>

From Yamhill: Harry H. Belt, Judge. In Banc. The plaintiff alleges that on March 10, 1914, the defendant, by written assignment, sold and delivered to him a certain promissory note executed on August 18, 1913, for value, by Frank H. Greenman and wife to the defendant, in the sum of $8,000, payable on or before five years after date, with interest at 7 per cent per annum.

From Multnomah.: Harry H. Belt, Judge. Department 1. This is an action to recover $500. the alleged value of a building which, the plaintiff claims, was wrecked and appropriated by the defendant Foster & Kleiser, a corporation. When the plaintiff “had completed the introduction of her testimony” the defendant moved for a judgment of nonsuit. The court sustained the motion and the plaintiff appealed.

From Tillamook: George R. Baglet, Judge. Department 1. This is a suit begun to enjoin the cutting and taking away of timber upon premises alleged to belong to plaintiff.

From Jefferson: T. E. J. Duffy, Judge. Department 2. This is a proceeding brought by the directors of the North Unit Irrigation District in Jefferson Comity, under the provisions ¡of Chapter 357 of the Laws of 1917, to procure a confirmation of an election, authorizing the issuance of irrigation bonds of that district, to the amount of $5,000,000 (five million dollars).

From Polk: Harry H. Belt, Judge. Department 2. This is a suit to foreclose a thresherman’s lien. A decree was rendered in favor of plaintiff for a balance of $65.12. Defendant J. B. Talkington appeals. The issues involved are as follows: Plaintiff alleges that the reasonable value of threshing a certain crop of grain in August, 1918, is $100.

From Clackamas: James U. Campbell, Judge. Department 2. This is an action against the county to recover damages for injuries resulting to the person of the plaintiff, and to his automobile, caused by the car leaving the road and turning over. The plaintiff claims the injury was caused in whole or in part by the defective and dangerous condition of the road.

From Multnomah: Calvin U. Gantenbein, Judge. Department 1. This is an action to recover money. The complaint contains two causes of action. The Portland Motor Car Company was an Oregon corporation.

From Multnomah: George W. Stapleton, Judge. Department 1. This is an equitable proceeding, wherein plaintiff seeks the cancellation of certain conveyances of real property. The substance of the complaint is that on July 13,1910, plaintiff married Sarah Cleveland Mack, the plaintiff then being 80 years of age and the bride about 65.

From Wasco: William L. Bradshaw, Judge. Department 1. This is a proceeding instituted in the County Court of Wasco County to contest the will of Eliza J. Rice. Two of the plaintiffs are George W. Rice, son, and Emma Southern, a daughter of the decedent. The other plaintiffs, six in number, are grandchildren of the decedent, descendants of her deceased children. The two defendants, Austin C. Rice and Etta Waterman, are respectively son and daughter of the testatrix.

From Douglas: Jambs W. Hamilton, Judge. Department 2. This suit involves the title to lots 3 and 6 in block 6, in the town of Myrtle Creek, in Douglas County, The plaintiff filed suit, praying that a certain deed executed by plaintiff and his wife and one C. J. Eea to Margaret A. Hurst be declared to be a; mortgage on said property, and that it be further decreed that the mortgage has been fully paid and that plaintiff be decreed to be the owner and entitled to the…

From Multnomah: John P. Kavanatjgh, Judge. Department 1. The defendant, Travelers’ Protective Association of America, is a fraternal insurance corporation. The plaintiff, T. W. Kendall, was a member of the association, and entitled to all the benefits set forth in its constitution and by-laws. The association pays to a member $25 per week for a total disability and $12.50 per week for a partial disability.

From Coos: John S. Coke, Judge. Department 1. The parties to this case were married' October 12, 1906, and have a daughter now of the age of nine years. The complaint charges the defendant with cruel and inhuman treatment and personal indignities toward the plaintiff rendering her life burdensome, making specifications not necessary to be quoted. The answer was a general denial without new matter.

The plaintiff, a young man about nineteen years of age, by his guardian ad litem in this action sues Walker D. Hines as director-general of the United States Railroad Administration, and Jones and Amundson, the engineer and fireman in charge of a train of the Spokane, Portland & Seattle Railway Company, for damages on account of an injury which he received in a collision between a train on that road and a motor truck which he was operating at the time.

From Lane: James W. Hamilton, Judge. Department 2. This is a suit instituted by the respondent for the purpose of canceling and setting aside a special assessment made upon his property by the City of Eugene, for the improvement of Alder Street in front of his property. The improvement is the same discussed in Gamma Alpha Bldg. Assn. v. Eugene, 94 Or. 80 (184 Pac. 973), and several of the questions raised on this appeal are settled in that case.

<p>Trespass — Treble Damages AUowable, Though not Claimed in Complaint.</p> <p>1. The court can award treble damages under Section 346, L. O. L., as amended by Laws oí 1917, page 742, for cutting timber, though treble damages are not claimed in the prayer of the complaint, at least where the award of treble damages is less than the sum prayed for in the complaint.</p>

From Baker: Gustav Anderson, Judge. In Banc. The principal case was before this court on appeal and is reported in 86 Or. 1 (166 Pac. 965,167 Pac. 1167).

<p>Master and Servant—Compensation Act not Applicable to Municipality; “Employer.”</p> <p>1. A municipality was not an employer within the Workmen’s Compensation Act in force December 23, 1916.</p> <p>Municipal Corporations—Ordinance Unnecessary for Hiring Employee.</p> <p>2. • A charter provision, relieving a town from liability on a contract not authorized by city ordinance and made in writing, applies only to contracts for work to be let after notice, and does not require an ordinance for a contract authorizing the engineer of the town waterworks to employ his father in his absence.</p> <p>Evidence—Parol Evidence can Add to Minutes of Contract of Hiring of Municipal Employee.</p> <p>3. Where the council minutes recited merely the appointment of a waterworks engineer, oral evidence was admissible, to show an agreement that the engineer might procure the services of his father when he was absent.</p> <p>Master and Servant—Evidence Held Sufficient to Take Question of Employment to Jury.</p> <p>4. Minutes of a council meeting, appointing plaintiff’s son as waterworks engineer, and oral testimony that it was agreed at the meeting that the son might employ plaintiff in his place when absent, held sufficient to take to the jury the question whether or not plaintiff was an employee of the town when injured.</p> <p>Master and Servant—Finding of Negligence Held Warranted.</p> <p>5. Where plaintiff was injured by his clothing catching on the key which fastened the fly-wheel to its shaft near the pulley he was adjusting, the jury could find the employer negligent in violating the Employers’ Liability Act, which required it to use every care and precaution which might have been used without impairing the efficiency of the machinery to protect employee from injury.</p>

<p>Larceny—Indictment—V ariance.</p> <p>1. Where plaintiff was indicted under Section 1950, L. O. L., denouncing the crime of lareeny by stealing cattle, the indictment must be considered solely with reference to that offense, and a conviction cannot be sustained on proof that defendant, in violation of Section 1954, knowingly defaced brands on cattle.</p> <p>Animals—Brands—Presumption of Ownership.</p> <p>2. Under Laws of 1915, page 44, Section 8, declaring that the brand of any animal shall be prima facie evidence that the animal belongs to the owner of the brand, where there are two recorded brands upon the animal, the presumptions balance each other.</p> <p>Larceny—Burden of Proof.</p> <p>3. In a prosecution under Section 1950, L. O. L., for larceny of cattle, the state has the burden of proving that the cattle were property of individuals named as owners in the indictment, and that defendant took or asported the animals.</p> <p>Larceny — Evidence.</p> <p>4. In a prosecution under Seetion 1950, L. O. L., for the larceny of cattle, where it appeared that the animals defendant was charged with stealing were on open range, held that, though brands^ thereon had been obliterated, etc., and though defendant and his hired man were in proximity to the cattle which were with a laTger number admittedly belonging to defendant, sueh facts did not show an asportation.</p> <p>ON REHEARING.</p> <p>Larceny — Finding of Defendant’s Brand upon Animal Stolen Insufficient in Itself to Justify Conviction,</p> <p>5. The finding of one man’s brand upon another man’s cow is not alone sufficient to justify a conviction of larceny.</p> <p>[As to brands on animals as evidence of ownership, see notes in 12 Ann. Cas. 414; 18 Ann. Cas. 544; Ann. Cas. 1913EÍ, 133.]</p> <p>Larceny — Evidence That Defendant’s Brand is upon Stolen Cattle- is Admissible.</p> <p>6. In a prosecution for larceny of eattle, evidence that defendant’s brand is found upon the animals alleged to have been stolen, with or without a disfiguration of the old brands, is admissible.</p> <p>Criminal Law — What Deemed “Evidence to Support Verdict”— “Satisfactory Evidence.”</p> <p>7. The mere existence in a criminal ease of any competent evidence, however conclusive, any circumstance, however remote, which a jury would have a right to consider if submitted along with other evidence, is not “evidence to support the verdict” within the constitutional provision, in view of Section 697, L. O. L., providing that evidence is deemed satisfactory which ordinarily produces moral certainty and conviction in an unprejudiced mind, and that sueh evidence alone will justify a verdict.</p> <p>Larceny — Evidence Held Insufficient to Show That Defendant Placed His Brand upon Stolen Cattle.</p> <p>8. In a prosecution for larceny of cattle, that about 300 of the stolon animals were found in one small valley on a publie range used by defendant as a sheep range, that defendant’s employee was seen in the vicinity, and that the eattle bore defendant’s brand, was insufficient to connect defendant with the branding.</p> <p>Criminal Law — Authority to Commit Crime not Inferred from Employment of Agent by Defendant.</p> <p>9. Authority to commit a criminal act can never be inferred from the mere fact that the alleged agent was in the lawful employ of defendant.</p> <p>Criminal Law — Admission of Ownership Held Insufficient to Show That Accused Disfigured Brands on Stolen Cattle.</p> <p>10. In a prosecution for lareeny of cattle whieh had been found carrying defendant’s brand apparently superimposed upon an older brand, the mere fact that defendant said he thought some of the eattle were his was insufficient to connect him with the disfigurement of the brands.</p> <p>Animals — Presumption Arising from Brands Stated.</p> <p>11. Where two brands are found upon an animal, one older than the other, the presumption from the brands alone is that the ownership of the animal belongs to the older brand, and ordinarily under such conditions the burden is upon the owner of the later brand to establish his right to put sueh brand upon the animal.</p> <p>Criminal Law — Cattlemen Co.uld Testify as Experts as to Brands upon Animals Stolen.</p> <p>12. In a prosecution for larceny, where defendant’s brand had been found superimposed upon another brand on the animals stolen, it was not error to permit old cattlemen of long experience to testify as experts in relation of the growth of brands with the growth of the animal and the effect of a second burn on the old scar.</p> <p>Criminal Law — Instruction as to Effect of Brands to Show Ownership Held Erroneous as Invading Province of Jury.</p> <p>13. In a prosecution for larceny of cattle, an instruction that, if the company claiming to be owner of the stolen animals had “plaeed its brand on any of the animals, it is sufficient evidence” that the animals belonged t"o it, was erroneous as invading the province of the jury.</p> <p>^-Larceny — Evidence as to Possession of Stolen Goods Admissible, Although not Recent or Exclusive.</p> <p>14. In larceny cases the fact of possession of the stolen goods by defendant is admissible, notwithstanding such possession is not recent or exclusive, although such fact may not in itself be sufficient to raise a presumption of guilt.</p>

From Tillamook: George E. Bagley, Judge. In Banc. The complaint alleges that prior to August 26, 1918, by a majority vote of its legal electors the defendant was authorized to furnish transportation to all of the pupils in the district living more than two miles distant from the school building, and: “That on or about August 26, 1918, said school district, acting through its district school board, employed plaintiff to transport the pupils of defendant district to and from…

This is an' action to recover from the defendant upon a judgment which the plaintiff says he obtained in a court of the State of California.

From Hood River: Fred W. Wilson, Judge. Department 1. On August 31,1918, the plaintiff presented a petition for a writ of review to the judge of the Circuit Court for Hood River County and obtained from him an order directing the writ to issue to the County Court of that county and Humphrey Barton, defendants, and to Kent Shoemaker, county clerk of Hood River County, in substance commanding a return of the writ into the Circuit Court on November 15, 1918, together with a…

From Marion: George G. Bingham, Judge. Department 2. This is a proceeding by the widow, on behalf of herself and a minor child, to have the exempt homestead, consisting of a house and lot in the City of Salem, set aside to her as her own individual property, and to have an allowance set aside to her in addition, to the amount of $100 a month for the first year after the death of her husband.