To construe the meaning of the language found in section 669, L. O. L., is to decide whether a bill of exceptions is necessary, and for that reason the material part of the section is here set down: * * temporary care of the babe by her. The fa- | pose of deciding any question of fact. Smith ther was gone three days on his trip to White v. Walters, 76 Or. 76, 147 Pac. 925. Salmon, and on his return left the child in the care of defendants, who then lived on a farm about two miles from that of petitioner. While they were such near neighbors the father visited his child weekly, but after a time defendants moved, first to eastern Oregon, and later to a mine in southern Oregon, finally locating in Portland, during all of which time they kept the child with them. The father sent them small sums of money from time to time to aid in caring for the infant, although the amount so remitted is uncertain. The defendants insist that they only received $105 from the father, while he maintains that it was a much larger sum. When the child was about five years old the father married again, and has made several attempts to regain possession of the little boy, culminating in this proceeding. There is no evidence which tends to indicate that the petitioner is in any way unworthy or unfit to have the custody of his child, nor is any question suggested as to the character of his wife. The evidence certainly does not disclose any con duct indicating an abandonment, unless it be found in the testimony of Mrs. Hendryx in regard to the conversation had at the time of the mother's death when she urges that he gave the infant to her. Such evidence does not justify a court in ignoring the natural rights of a father, and even if it were undisputed, the great weight of authority is to the effect that the father has a right to revoke such an agreement, since a child is not a chattel, subject to sale or cold-blooded bargaining. The case of Ex parte Barnes, supra, is a case so completely in point that we adopt as the law of this case the reasoning found therein. The decree of the trial court is reversed, and one will be entered here awarding the custody of the infant to petitioner. "Any party to a proceeding by habeas corpus, may appeal from the judgment of the circuit or county court refusing to allow such term time or vacation, in like manner and with writ or any final judgment therein, either in like effect as in an action." A defeated litigant has no inherent right to appeal, and consequently the right of appeal does not exist, unless it has been granted by a statute. The Legislature has granted the right of appeal, but it also prescribed the manner in which the right must be exercised as well as the effect of the exercise of the right, and therefore when a party to a proso in the manner pointed out by section 669. ceeding by habeas corpus appeals he must do [4] The statute prescribes that a party to proceeding by habeas corpus may appeal "in like manner and with like effect as in an action." The word "manner" means the way of performing anything; the mode in which 4161. MCBRIDE, C. J., and BEAN, MOORE, tinction is carefully preserved in the termiand MCCAMANT, JJ., concur. HARRIS, J. I cannot concur with all that is said by Mr. Justice BENSON, although I agree with the conclusion that the judgment should be reversed. There is no bill of exceptions in the record; and in my opinion the absence of a bill of exceptions not only precludes us from trying the cause de novo, but also prevents us from re-examining any disputed question of fact, if the decision of such disputed question of fact is dependent upon the evidence offered at the trial. Among the files is a transcript of the testimony certified to by the official court reporter and by the county clerk, but this transcript is not certified to or signed by the circuit judge. If the evidence cannot be presented on appeal, except through the medium of a bill of exceptions, then the inevitable conclusion is that we cannot on this appeal try the cause nology employed throughout the Code. Not only the proceeding itself but its ending is designated according to its character. The proceeding may be an action and if it is, it terminates in a judgment; or it may be a suit and if it is it ends in a decree. The distinction between a suit in equity and an action at law is recognized in the chapter dealing with the proceeding by habeas corpus; and moreover the same distinction is likewise preserved in the chapters dealing with the writs of review and mandamus and the punishment of contempts. A proceeding by habeas corpus is not strictly speaking, an action at law or a suit in equity, but it is classified as a special proceeding. However, a determination of the rights of the parties in these several special proceedings, whether habeas corpus, mandamus, review, or contempt, is called a judgment; and, furthermore, the definition of a motion and an order in an ac cial proceeding. Section 601, L. O. L. The language found in section 669, L. O. L., is not peculiar to that section, but the same language is employed in the section granting the right of appeal from a judgment of the circuit court upon a writ of review (section 611, L. O. L.), in a mandamus proceeding (section 626, L. O. L.), and in a proceeding for the punishment of contempt (section 684, L. O. L.). If a party to a proceeding by habeas corpus must appeal from the judgment of the circuit court by following the mode prescribed in an action, then we must ascertain whether the appellant has followed that mode. The appellant gave a notice of appeal and filed an undertaking. These two steps must be taken whether the appeal is from a decree or a judgment. Section 550, L. O. L., as amended by chapter 319, Laws 1913. The next step is to file a transcript. The transcript is made necessary by section 554, L. O. L., as amended by chapter 320, Laws 1913, and since this section of the Code occupies a determining position in the investigation, it will be proper to quote the material part of it: "Sec. 554. Upon the appeal being perfected the appellant shall, within 30 days thereafter, file with the clerk of the appellate court a transcript or such an abstract as the law or the rules of the appellate court may require, of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal, together with a copy of the judgment or decree appealed from, the notice of appeal and proof of service thereof, and of the undertaking on appeal; and after compliance with the provisions hereof the appellate court shall have jurisdiction of the cause, but not otherwise: * * * "1. If the appeal is from a decree and the cause is to be tried anew on the testimony, the clerk shall attach together the testimony, depositions and other papers on file in his office containing the evidence heard or offered on trial in the court below, and deliver the same to the appellant, taking therefor his receipt in duplicate, one of which receipts he shall file in his office and the other deliver to the respondent when so requested. Such evidence shall be deemed a part of the transcript or abstract, and shall be filed therewith." The several chapters of the Code dealing with the writs of review and mandamus, habeas corpus, and contempts, and now codified in sections 600, L. O. L., to 684, L. O. L., inclusive, were originally enacted as component parts of the Code of Civil Procedure, which was framed by the code commissioners and passed by the legislative Assembly in 1862. The chapter providing for appeals, now found in section 548, L. O. L., to section 560, L. O. L., inclusive, was incorporated into the Code of Civil Procedure as it was enacted in 1862; and it may be added that every other section of the Code mentioned herein finds its origin in the Code of Civil Procedure, which was adopted in 1862. The important place occupied by section 554, L. Q. L., is made apparent when we read in section 556, L. O. L., that: "Upon an appeal from a judgment, the same shall only be reviewed as to questions of law * 串 * "Upon the appeal being perfected, the appellant shall within twenty days thereafter if the appeal be to the Supreme Court, transcript of the cause, as provided in this secfile with the clerk of the appellate court the tion and thereafter the appellate court has jurisdiction of the cause, and not otherwise. clerk of the roll or final record, or the pleadings, "1. The transcript is a copy, certified by the orders, papers and journal entries that constitute such roll or record, together with a copy of the notice of appeal and any order enlarging the filing of the undertaking, whether by the appeltime to file the transcript, and a statement of the lant or respondent, the names of the sureties therein, the amount thereof if the same is specified, and if given by the appellant whether the undertaking is given for an appeal only, or a stay of proceedings also. "2. If the appeal is from a decree, the clerk shall attach together the depositions and other papers on file in his office, containing the evidence heard or offered on the trial in the court below, and append thereto his certificate to that effect, and deliver them to the appellant with the transcript, taking therefor his receipt in duplicate, one of which he shall file in his office and deliver the other to the respondent when so requested. For the purpose of acquiring jurisdiction by the appellate court, such evidence shall be deemed a part of the transcript, and shall be filed therewith." The transcript mentioned in sections 554 and 556, L. O. L., was expressly defined in section 554, as originally enacted, to be a copy of the final record or judgment roll. Farrell V. Oregon Gold Co., 31 Or. 463, 472, 49 Pac. 876. When an action results in a judgment or a suit in a decree the clerk is required to prepare a judgment roll. If the defendant has appeared and contested the action or suit the clerk prepares the judgment roll by attaching together the summons and proof of service, the pleadings, bill of exceptions, all orders relating to a change of the parties, together with a copy of the entry of judgment or decree, and all other journal entries or orders in any way involving the merits and necessarily affecting the judgment or decree. Sections 208 and 413, L. O. L. There may be a bill of exceptions in an action at law, but the Code does not provide for a bill of exceptions in a suit in equity. Sutherlin v. Bloomer, 50 Or. 398, 403, 93 Pac. 135. In an action at law the objection is stated with so much of the evidence as is necessary to explain it, and when the statement or bill of exceptions is settled and allowed it is filed with the clerk and becomes "a part of the record of the cause." Sections 171, as amended by chapter 332, Laws 1913, and 172, L. O. L. Turning again to section 554, L. O. L., it third step to be taken by an appellant. The filing of a transcript or its equivalent, "such an abstract as the law or the rules of the appellate court may require," with a copy of the judgment or decree appealed from, the notice of appeal and proof of service and of the undertaking on appeal, is the third step required of an appellant whether the appeal be from a judgment or from a decree. Originally, the appellant was obliged to file a transcript of the entire judgment roll, but now the transcript or abstract need only be "of so much of the record as may be necessary to intelligibly present the question to be decided by the appellate tribunal," together with a copy of the judgment or decree, notice of appeal and undertaking. There is no method pointed out by the Code or by any statute by which the evidence or any part of it can be brought to the Supreme Court, whether the appeal is from a judgment or a decree, except by making the evidence a part of the transcript. If the appeal is from a judgment in an action, the evidence or so much of it as is necessary to explain the objection can be written into a bill of exceptions, and thus becomes a part of the judgment roll, and consequently appears in the transcript which the appellant files. In order to save the expense of making copies, chapter 335, Laws 1913, directs that the original pleadings and the original bill of exceptions shall be sent to. the Supreme Court to be "a part of the transcript" so long as needed in the appellate court. While it is true that section 171, L. O. L., as amended by chapter 332, Laws 1913, speaks of "a transcript of the whole testimony and all of the proceedings had at the trial," it is also true that to be available on appeal the transcript of the testimony must be in the form of a bill of exceptions. The amendment itself speaks of "the bill of exceptions"; and, moreover, the bill of exceptions must be signed by the judge before it can become a part of the judgment roll. Section 172, L. O. L The Code does not provide for a bill of exceptions in a suit in equity, and since the evidence taken in a suit cannot be carried into the judgment roll by means of a bill of exceptions, the Code has directed that, when an appeal is from a decree, the clerk shall deliver the evidence to the appellant, who then files it, and, when filed, "such evidence shall be deemed a part of the transcript or abstract." Section 554, subd. 1, L. O. L. This is the only authority found in the Code for bringing the evidence to this court upon an appeal from a decree rendered by the circuit court in a suit. In short, whether the appeal is from a judgment or a decree, the appellant must file a transcript, or its equivalent, an abstract; the transcript is a copy of the judgment roll or such part of it as may be necessary to intelligibly present the question to be decided; if the appeal is from a judgment the evidence can be carried into the judgment roll through a bill of exceptions, but there is no other method by which this can be done; if the appeal is from a decree the evidence cannot become a part of the judgment roll, but it can be filed with the transcript in this court, and, when so filed, shall be deemed a part of the transcript; and when heard in this court the appeal from a judgment is reviewed as to questions of law appearing upon the transcript. Reading sections 172 and 208 together, it will be seen that each fits and harmonizes with the other. Under section 172 an exception need not be taken to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon matters in writing and on file in the court, because by the terms of section 208 such decision necessarily appears in the judgment roll prepared by the clerk. Reduced to its final terms, an appeal from a judgment is heard upon the judgment roll; the judgment roll may or may not contain a bill of exceptions; if there is no bill of exceptions, then this court cannot consider the evidence heard in the circuit court because this court is confined to the judgment roll; but if the judgment roll contains a bill of exceptions, this court can consider the evidence appearing in the bill of exceptions. If in the instant case we try the cause de novo, we do so on evidence which is brought here in the manner prescribed for appeals from decrees; and in my opinion this is in direct violation of section 669, L. O. LA, which commands that the appeal shall be "in like manner and with like effect as in an action." The statute fixes the mode, and the mode so fixed is the measure of the right to appeal. The opinion in Barnes v. Long, 54 Or. 548, 104 Pac. 296, 25 L. R. A. (N. S.) 172, 21 Ann. Cas. 465, should not be regarded as a precedent because the question of the necessity of a bill of exceptions was neither raised nor considered. If it be suggested that the findings of fact made by the trial court are conclusive upon this court, and therefore preclude a retrial of the issues, even though all the evidence is brought here by a bill of exceptions, the answer is that the rule of conclusiveness has no application in the instant case. The quality of conclusiveness is imparted to findings of the court upon the facts by force of section 159, L. O. L., which declares that: "The finding of the court upon the facts shall be deemed a verdict, and may be set aside in the same manner and for the same reasons." If the parties here had been entitled to a jury trial, and had waived trial by a jury, then the findings of the court upon the facts would be conclusive upon appeal if there was evidence to support the findings, but in this proceeding by habeas corpus the parties were not entitled to a jury trial, and consequently the findings of the court upon the facts are not conclusive upon appeal; but, upon the contrary, the court can re-examine the evidence when brought here by a bill of exceptions, determine the facts, and upon those there are no facts recited in the judgment upon which to base that mere conclusion. It is true that the court will always consider the welfare of the child, but it is also true that a parent who is of good character and a proper person to have the custody of the child and reasonably able to provide for it is entitled to the custody as against other persons. 29 Cyc. 1590. On the facts alleged in the answer and judgment appealed from, the petitioner is entitled to a judgment here giving him the custody of his child. facts review the questions of law. State v. Sengstacken, 61 Or. 455, 122 Pac. 292, Ann. Cas. 1914B, 230. The custody of a child is always a proper subject of chancery jurisdiction. 22 Cyc. 519. And while the proceeding by habeas corpus is in most jurisdictions classified as a legal and not an equitable remedy, and in this jurisdiction is to be classified as a special proceeding in the nature of an action, the circuit court can never-upon the findings of fact appearing in the theless exercise its chancery power in a proceeding by habeas corpus; but the proceeding itself must be conducted in the manner and form prescribed by the statute. 21 Cyc. 45. Although it is not necessary to debate the question of whether or not a jury trial is never available, it is sufficient to say that it is plain that the parties to the instant proceeding were not entitled to a jury trial because the court was exercising its chancery jurisdiction, and therefore the findings made by the circuit court upon the facts are not conclusive. 21 Cyc. 324; 24 Cyc. 130; 12 R. C. L. 1250; 16 R. C. L. 205, 206. In their answer the defendants plead that they are entitled to the custody of the child, and they base their alleged right solely upon an agreement which they said they had with the petitioner. They also aver that the father abandoned the child, but the alleged abandonment appears merely as a conclusion from the allegation that the father agreed that the defendants could have the custody of the child. The judgment of the circuit court was apparently predicated upon the allegation and finding that the petitioner had made the agreement relied upon by the defendants. The agreement pleaded by the defendants did not confer any right upon them. Although the precedents are not harmonious, the better view is that an agreement like the one relied upon by the defendants is against public policy, and, in contemplation of law, is no agreement at all. To hold that such an agreement has the force of a binding contract is to hold that a parent can barter and sell his child just as he could a chattel. The mere statement of the result ought to be enough to confute every argument that can be advanced in support of the validity of the agreement pleaded by the defendants. Although the petitioner denies that he made the alleged agreement, nevertheless if it be assumed that he did make the agreement, it did not confer any legal right upon the defendants; and if it did not vest a legal right in the defendants, their whole claim fails, for the reason that their claim is founded entirely upon the alleged agreement. They do not allege in their answer that the petitioner is not a fit person to have the custody of the child, nor was it contended or even suggested at the argument that the father was an incompetent person to rear his child. While the judgment contains a conclusion "that it is for the best interests" of the minor, yet The judgment appealed from should be reversed. BURNETT, J., concurs in the result of this opinion. UNITED BROKERS' CO. v. SOUTHERN (Supreme Court of Oregon. Dec. 11, 1917.) In a consignee's action against a carrier for damages to a shipment of tomatoes, the consignee's bills and the ledger account showing the matoes were sold, presumably on account of amount charged to the parties to whom the totheir damaged condition, without evidence to show that the items represented the actual damage, were properly excluded. 2. CARRIERS 159(2)-DAMAGE TO GOODSSUFFICIENCY OF NOTICE OF CLAIM. In a consignee's action for damages to tomatoes shipped under a bill of lading, requiring notice of a claim for damage to be made in writing to the agent at place of delivery upon arrival, or within 10 days after delivery, the consignee's timely presentation of a written statement of a report of their condition, signed by the carrier's inspector, bearing the name of the consignee, stating the damage and the manner in which it occurred, and that the consignee would repack the tomatoes and claim damages, was a sufficient notice. 3. CARRIERS 159(2)-DAMAGE TO GOODSSTIPULATION FOR NOTICE. A stipulation as to notice of a claim for injury to goods while being transported by a common carrier should be given a reasonable conwith is all that is required, in view of the object struction, and a substantial compliance thereof the requirement of notice. 4. CARRIERS 185(1)-DAMAGE TO GOODS LIABILITY-PRESUMPTION. damage to goods in transit over several connectWithout evidence locating the place of the ing lines, and where it appears that the goods were delivered to the initial carrier in good condition, and were delivered by the terminal carrier in a damaged condition, a presumption arisminal carrier, and the burden of proof is on it es that they were injured on the line of the terto show that the damage was not done on its line, and that it occurred without its fault or through the shipper's failure to perform his con5. APPEAL AND ERROR 653(2)-CERTIFICATE TO BILL OF EXCEPTIONS-AMENDMENT. tract. Where a transcript of all the evidence was sent up to the Supreme Court with the bill of thereof, the court, on motion before argument, exceptions, but was not formally made a part would allow an amendment of a certificate to Department 2. Appeal from Circuit Court, Multnomah County; C. U. Gantenbein, Judge. the bill of exceptions so as to attach all the evi- Brokers' Company, testified to the effect that dence. he examined the car in which the goods were shipped and found them in bad shape, the crates of tomatoes being pushed together or “jackknifed” and all mashed; that he called Mr. Criger, the Southern Pacific inspector, who made out an inspection report. Counsel for plaintiff presented a written statement of this report of the car signed by the inspector stated that the purpose of the writing was to and, upon request of defendant's counsel, Action by the United Brokers' Company against the Southern Pacific Company. Judgment of nonsuit, and plaintiff appeals. Reversed, and cause remanded for a new trial. This action was brought by the plaintiff to recover $394.72 damages to one carload ship-substantiate the claim for damage, and also ment of tomatoes while in transit from Dania, Fla., to Portland, Or. The shipment was delivered by Hardie & McFarland on February 23, 1914, to the Florida East Coast Railway Company at Dania, Fla., consigned to C. Schroeder & Co. at Waycross, Ga. A written contract of shipment was entered to between the shipper and the Florida East Coast Railway Company which contained the following provision, being the eighth clause of the printed conditions on the bill of lading: claimed that it was "written notice to the company." Upon objection of defendant's counsel the court admitted the document for the purpose of showing damage, but not to show that it was notice to the Southern Pacific Company as required by the agreement in-between the parties. Over the objection and exception of counsel for defendant the bill of lading issued by the initial carrier, the Florida East Coast Railway Company, was introduced in evidence by the plaintiff. It was produced by the defendant. On its face appear the words "Canceled 2/27/14" and "Original." The seventh clause under the heading thereon, "Conditions Limiting Liability except for Negligence" reads as follows: "Claims for loss or damage must be made in writing to this company within ten days after the arrival of the goods at their place of ultimate destination in case of fruit, vegetables and other perishable articles, and within thirty days after arrival at ultimate destination in case of other freight, and unless claims are so made this company shall not be liable." As pleaded in defendant's answer the shipment was diverted by the consignors to the plaintiff at Portland, Or., while in transit, and the original bill of lading was canceled and a new one issued by the Atlantic Coast Line Railroad Company at Jacksonville, Fla., which contained the following provision: "This bill of lading is signed for the different carriers who may engage in the transportation, severally but not jointly, each to be bound by and have the benefits of, the provisions thereof; and in accepting this bill of lading the shipper, owner and consignee of the goods, and the holder of the bill of lading agree to be bound by all of its stipulations, exceptions and conditions, whether printed or written. Claims for loss or damage shall be made in writing to the agent at point of delivery promptly after arrival of the property, and if delayed for more than ten days after the delivery of the property, or after due time for the delivery thereof, no carrier hereunder shall be liable in any event." On and prior to February 23, 1914, the Atlantic Coast Line Railroad Company duly filed, posted, and published its tariffs with the Interstate Commerce Commission, as required by law, and the shipment was governed by the provisions of the standard form of bill of lading. At the close of plaintiff's case a motion for a nonsuit was granted. Plaintiff appeals. H. L. Lyons, of Portland (Charles M. Hodges, of Portland, on the brief), for appellant. Ben C. Dey, of Portland (Wm. D. Fenton, of Portland, on the brief), for respondent. this company is liable shall be computed on the "The amount of any loss or damage for which basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the unless a lower value has been agreed upon or is place and time of shipment under this contract, determined by the classification or tariff upon which the rate is based, in either of which events to govern such computation, whether or not such such lower value shall be the maximum amount loss or damage occurs from negligence." The bill of lading shows that the shipment was made from Dania, Fla., to H. C. Schroeder & Co., Waycross, Ga., and that the goods were received for transportation "in apparent good order." The witness Mr. Stone stated that the contents of the car revealed that it had received rough handling. The report gave the nature of the damages. It is urged that the claimant should have written a letter of complaint to the railway company. Exhibit C, introduced in evidence and received as bearing upon the question of damages, is as follows: "Portland, Or., Mar. 14, 1914. "Following is list of damaged and partly damwhich arrived East Portland, March 12th, 1914, aged crates of tomatoes in car F. G. E. 21645 distributed as follows: Pearson Page Co. 31 crates partly damaged 66 66 66 66 66 66 66 66 66 66 166 "Southern Pacific Co. By M. F. Criger." [1] Bills and a ledger account were offered in evidence as showing the amount charged to the plaintiff by the parties to whom BEAN, J. (after stating the facts as above). the goods were sold, presumably on account |