INDEX.

ABSTRACT OF RECORD.

Filing Delayed Abstract by Permission. See APPEAL, 9.
ACCOUNT.

REFERENCE TO TAKE ACCOUNT.

1. Under the general equity practice, a court having jurisdiction to
order an accounting may either refer the matter or take the testimony
and state the account itself.
Davis v. Hofer, 150.

DUTY OF DIRECTORS TO ACCOUNT TO STOCKHOLDERS.

2. Owing to the confidential and fiduciary relation existing between
the directors and stockholders of a corporation, the latter may compel
the former to account for their management before a court of equity.
Davis v. Hofer, 150.

ADEQUATE REMEDY AT LAW.

3. Where plaintiff and defendant, who were attorneys, not partners,
were employed to prosecute several suits, and plaintiff alleged that de-
fendant misrepresented the amount of fees he received from their client,
and fraudulently retained more than his share, plaintiff's bill for an ac-
counting was properly dismissed on the ground that he had an adequate
remedy at law.
Willis v. Crawford, 522.

ACCOUNT STATED.

QUESTION FOR JURY-DUTY OF COURT.

1. Unless a debtor objects within a reasonable time to an account pre-
sented it will be considered as stated. What is reasonable is a question
of law to be decided by the court, unless there is a dispute concerning
the facts, in which case the dispute and the question whether the delay
in objecting was reasonable should be left to the jury under proper in-
structions.
Howell v. Johnson, 571; Crawford v. Hutchinson, 578.

EFFECT OF OMITTING OTHER TRANSACTIONS.

2. Where an account has been presented, including all the items on
a given subject or to a given date, it will become stated as to that sub-
ject or as to all the items to that date, unless seasonably objected to;
but this will not bind the debtor as to claims arising out of some inde-
pendent transaction that has no connection with the items in the account
rendered. And it is further true that all a given transaction must be in
the account, for part of an affair cannot be stated, leaving the balance
Crawford v. Hutchinson, 578.

open.

EFFECT OF DISPUTE ABOUT CONTRACT.

3. An account rendered will not become an account stated unless ob-
jected to within a reasonable time, where there is a dispute as to the
construction of the contract under which the transactions mentioned in
the account took place.
Howell v. Johnson, 571.

ACTION.

ACTION FOR DAMAGES FOR BREACH OF REDELIVERY BOND.

A replevin action having been commenced, the plaintiff therein gave the required bond and the sheriff seized the property, whereupon defendant gave a redelivery bond conditioned that "said defendant shall deliver said property to the above-named plaintiffs if delivery thereof be adjudged, and shall pay to said plaintiffs such sum as may for any cause be recovered against the defendant." Subsequently a warehouseman who had charge of the property began an interpleader suit in which the original plaintiff was awarded the property and took it. No damages were allowed against the original defendant, who gave the redelivery bond. In an action by the original plaintiff on the bond, held, that there was no cause of action, as there had not been a breach of the bond, the property having been returned and no damages awarded. Lewis v. MeNary, 116. ACTS OF LEGISLATURE.

Constitutionality of Statutes. See CONSTITUTIONAL LAW.
Construction of Statutes See STATUTES.

ADEQUATE REMEDY AT LAW.

Irregular Issuance or Levy of Execution. See EQUITY, 1.
Settlement Between Attorneys not Partners.

See EQUITY, 2.

ADMINISTRATION of Estates of Decedents. See EXEC. AND ADM'RS.

AFFIDAVITS.

Sufficiency of Affidavit for Publication of Summons Against Collateral Attack. See PROCESS, 2.

AGENCY. Same as PRINCIPAL AND AGENT.

AGISTMENT.

No Agister's Lien Independent of Statute. See ANIMALS, 1.
Must be Animals of Another than the Claimant. See ANIMALS, 2.
No Lien for Money Expended on Livestock. See ANIMALS, 3.
No Lien for Expenses of a Racing Circuit. See ANIMALS, 4.

AIDER BY VERDICT.

Curing Defect in Complaint by Verdict. See PLEADING, 20. AMENDMENT.

Filing New or Amended Pleadings-Discretion. See PLEADING, 13, 14. ANIMALS.

AGISTER'S LIEN INDEPENDENT OF STATUTES.

1. Independently of statute or special agreement, one who cares for an animal of another has no lien thereon for his charges, since he does not impart any new or added value to it, and does not come within the policy of the law giving innkeepers a lien on baggage, he not being bound to receive all animals that may be brought to him for keeping.

Sharp v. Johnson, 246.

AGISTER'S LIEN-OWNERSHIP OF THE ANIMALS.

2. Under Section 3684, Hill's Ann. Laws, providing that "any person who shall feed any livestock or bestow labor or care thereon, at the request of the owner or lawful possessor thereof, shall have a lien thereon for his just charges," the agister cannot claim a lien on stock of which he is part owner. Sharp v. Johnson, 246.

AGISTER'S LIEN FOR FEED FURNISHED BY ANOTHER.

3. Under Section 3684, Hill's Ann. Laws, no lien can be maintained for feed or care bestowed on stock for which the claimant paid-paying bills for the care of the animals will not support a lien, since that is a personal right originating in the services of the lien claimant.

AGISTER'S LIEN-NON-LIENABLE ITEMS.

Sharp v. Johnson, 246.

4. The statute does not give an agister's lien for freight, entrance and jockey fees paid in managing a horse on a race circuit. Sharp v. Johnson, 246.

APPEAL AND ERROR.

CONSTITUTIONAL RIGHT TO APPEAL TO SUPREME COURT.

1. The provision of the state constitution, Article VII, § 6, that the supreme court shall have jurisdiction to revise the final decisions of the circuit courts, is not self-executing, and the cases that may be appeated, and the manner in which appeals may be taken, must be prescribed by some proper authority. Where the legislature has enacted that an appeal may or may not be taken in a given case or class of cases, such deterinination is conclusive. Portland v. Gaston, 533.

STATUTES-APPEAL IN STREET CONDEMNATION CASES.

2. A statute providing that an owner whose property has been ondemned for use as a street may appeal to the circuit court from the award of damages by the council, and that the decision of the circuit court "shall be a final and conclusive determination of such assessment" (Laws 1898, 101, 146, §§ 112, 114, 117), limits the right of appeal to the circuit court. Portland v. Gaston, 533.

QUESTIONS WITHIN THE SCOPE OF THE PLEADINGS.

3. Matters that are not by reasonable intendment and construction within the scope of the pleadings, cannot be considered on appeal; the allegations of the complaint in this case do not raise the question of lack of notice of the proposed street improvement, or the question whether the expense was apportioned according to the benefits received.

Shannon v. Portland, 382.

INSTRUCTIONS MUST BE CONSIDERED AS A WHOLE.

4. In passing on a single instruction the entire charge must be considered, and unless it appears that the jury were or might have been misled, verbal inaccuracies or careless expressions will not be cause for reversal. Farmers' National Bank v. Woodell, 294.

EFFECT OF GENERAL OBJECTION TO AN INSTRUCTION.

5. Where, in an action involving the authority of an agent, the objection to an instruction submitting the question to the jury was general, and challenged its sufficiency as a matter of law, plaintiff was entitled to contend on appeal that the instruction was erroneous. in that it left the construction of a written instrument constituting such authority to the jury, though the trial court may have proceeded on the theory that the authority rested partly in parol and partly in writing, and was therefore a question for the jury.

Williamson v. North Pacific Lumber Company, 560. WAIVER OF OBJECTION TO FILING TRANSCRIPT.

6. An objection to the filing of a transcript for an irregularity in practice must be made promptly, or it will be considered waived. Nottingham v. McKendrick, 495.

FILING TRANSCRIPT BEFORE PERFECTING APPEALPRACTICE. 7. The proper practice where a transcript has been filed before the appeal has been perfected, is to move to strike the transcript from the files, rather than to ask for a dismissal. Nottingham v. McKendrick, 495. FILING PERFECTED UNDERTAKING.

8. Where appellants have acted in good faith and with fair diligence

in their efforts to complete and file a proper undertaking on appeal, they will be permitted to file a perfected undertaking out of time.

Nottingham v. McKendrick, 495.

RULES OF COURT-DELAYED ABSTRACT OF RECORD.

9. Where appellant was but two days in default in filing his abstract, as required by Rule 4 (24 Or. 595, 35 Or. 591), when respondent moved to dismiss the appeal, and no injury resulted from the delay, the abstract may be filed within a time to be fixed by the court, especially where the delay was caused by a misunderstanding of the rule.

Nottingham v. McKendrick, 495.

EFFECT OF REVERSAL BY ONE PARTY APPEALING.

10. Where the decree in a suit for the foreclosure of several mechanics' liens on a lot with the buildings thereon adjusted the rights of all the parties except one, whose claim was disallowed, and he appealed, and none of the other claimants appeared in the appellate court, though served with notice, and the cause was remanded with permission to appellant to amend his answer so as to secure a trial on the merits of his claim; such reversal did not affect the status of the lien claimants other than appellant, and as to their rights the original decree is still in force, whatever may have been the decree rendered after the reversal and upon consideration of appellant's claim. Smith v. Wilkins, 583.

MORTGAGE FORECLOSURE-LIABILITY FOR USE AND OCCUPATION. 11. A statute requiring a bond given on appeal from a mortgage foreclosure decree to be conditioned for the payment of the value of the use and occupation of the mortgaged premises during the pendency of the appeal, not exceeding a certain sum to be fixed by the court, does not contemplate that the trial judge shall fix in advance the value of such use, and a surety on such bond is not liable absolutely for the amount named in the bond, but is liable for only the reasonable value of such occupation, not exceeding the amount fixed by the trial judge, to be ascertained in an action at law. German Loan Society v. Kern, 232.

MORTGAGE FORECLOSURE--LIABILITY FOR DEFICIENCY.

12. Under Hill's Ann. Laws, § 414, providing that if, on the foreclosure of a mortgage, it shall appear that a personal obligation has been given, in addition to the mortgage securing the debt, the court shall decree a recovery of the amount of the debt, as in an ordinary judgment for the recovery of money; and Section 417, providing that when the decree is for a foreclosure and sale and also against the defendants, or any of them, personally, and the proceeds of the sale of the mortgaged property is insufficient to pay the entire sum found to be due, payment of the balance "may be enforced by execution as in ordinary cases," a decree giving a personal judgment against the mortgagor for the amount of the debt, and foreclosing a mortgage given to secure it, is one entire decree, and in appealing therefrom the appellant must give a bond conditioned to pay the expenses of the appeal and also any deficiency remaining after the sale of the mortgaged premises, and such bond is enforceable according to its terms, whether it was given before or after the sale. German Loan Society v. Kern, 232.

PRESUMPTION OF INJURY FROM ERROR. 13. Where error affirmatively appears it will be presumed that it was prejudicial, unless the contrary appears from the record.

Durkee v. Carr, 189.

HARMLESS ERROR NOT REVERSIBLE ERROR. 14. An erroneous instruction will not justify a reversal of a case, when it was manifestly harmless. Howell v. Johnson, 571.

15. Where an improper instruction, contradicting prior correct instructions, did not mislead the jury, the error is not ground for reversal. Farmers' National Bank v. Woodell, 294.