interpose a challenge for cause, or exercise his peremptory right to challenge. It is the duty of a juror to make full and truthful answers to such questions as are asked him, neither falsely stating any fact nor concealing any material matter, since full knowledge of all material and relevant matters is essential to a fair and just exercise of the right to challenge either peremptorily or for cause. A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge": Johnson v. Tyler, 1 Ind. App. 387 (27 N. E. 643). The accused has a constitutional right to a trial by a fair and impartial jury, and ought not, therefore, to be compelled to submit to be tried by a juror who insinuates himself upon the panel by falsifying his oath. So we take it, without further inquiry or citation of authority, that if the juror Page, when asked on his voir dire if he had heard or read anything about the case, or if he had heard the matter discussed, or knew anything about what purported to be the facts in the case, or was acquainted with any of the witnesses, answered falsely, so as to deprive the defendant of his right of peremptory challenge, or of questioning him more rigidly relative to the real facts which might have influenced his mind and determined the court as to his competency as an impartial juror, then his acts amounted to misconduct manifestly prejudicial to the defendant, as they have deprived him of a clear legal right. We think, also, we may assume that the juror, by answering falsely, if such he did, had some ulterior motive to subserve. Whether it was to convict or to acquit the defendant is not apparent, but it does not matter the result of his verdict was to convict-and who could say that he went into the box with a different purpose or wholly unbiased?

6. Did the juror, therefore, answer falsely? For such is the misconduct charged against him. The solution of this question depends almost entirely upon the affidavit of Trembath and the counter affidavit of Page. Between these there is a sharp conflict in statement. The juror has a right to be heard upon his own affidavit, and the trial court may look back to the examina

tion on his voir dire, and, considering the whole, determine the controversy. As to the controlling feature sworn to by Trembath-that he had talked with Page, and told him about the pistol and the shells, and the facts as he understood them-Page replies by saying that he has no recollection of either circumstance, or of having talked with any one about the case prior to the trial. He might have denied by positive statement, which would have strengthened his defense, and, not having done so, it leaves an impression that he could not conscientiously so depose. It is hardly possible, however, that he should have forgotten within such a short space of time a matter which would naturally impress itself upon his mind, and it is a fair inference that he knew when he filed his affidavit whether Trembath had previously talked with him or not, and he is not to be excused on account of a short memory. When, therefore, he asserts that he retains no recollection of Trembath's having talked with him, the statement is persuasive and cogent in repudiation of the charges made by Trembath. Page's statement on the voir dire, however, is positive that he had never heard anything about the case, and knew nothing of the facts; and this was very recently after the conversation should have taken place, according to the showing of Trembath. Further, there is a weakness in Trembath's statement. He does not aver that Page made any reply when being told of the alleged facts of the killing, either by way of expressing an opinion, or letting fall any observation about the matter. One would naturally suppose that he would have said something affecting his qualifications as a juror, of a nature pertinent to have been set out along with the other facts. All this, however, by way of a discussion of the relative probabilities of truth in these contradictory and conflicting affidavits. The incident of Trembath's alleged acquaintance with Page is of minor moment, and is satisfactorily explained by the latter.

The affidavit of Mr. Dimick is admittedly disparaging to the juror's answers on his voir dire, but the latter denies the statement in positive terms, and Trembath, who was present at the time alluded to, corroborates the denial, so that, considering the whole testimony pro and con bearing on the dispute, there is

something of an even balance. It falls far short of a clear and palpable showing that the juror has been guilty of misconduct as alleged, and the trial court, with more favorable opportunity to detect imposition and discover truth, having passed upon the proofs, we must take it, under the authorities, that it has righly and justly decided the question involved. We cannot, therefore, interfere with its legal discretion in the premises. State v. Cook, 84 Mo. 40, and State v. Gonce, 87 Mo. 627, afford apt illustrations and discussions of the consideration and weight to be accorded to conflicting affidavits introduced for the establishment of a fact in dispute. A trial of fact by affidavit is not so felicitous in the discovery of truth as where the witness may be subjected to the search of a cross-examination for the verification of his statements, and the ascertainment of any motive present that may go to the impairment of his credibility. Accordingly, courts have enjoined the observance of caution in acting upon testimony adduced by that method, and usually agree that the case should be distinctly and clearly made, where it is sought to have a verdict set aside and a new trial awarded, for it is, in a manner, impeaching the regularity of a judicial proceeding: Hughes v. People, 116 Ill. 330 (6 N. E. 55); Spies v. People, 122 Ill. 1, 264 (12 N. E. 865, 17 N. E. 898, 3 Am. St. Rep. 320); Lamb v. State, 41 Neb. 356 (59 N. W. 895); Hill v. State, 42 Neb. 503 (60 N. W. 916).

Finding no error, therefore, in the rulings of the circuit court, its judgment will be affirmed.

Argued 26 January, decided 10 April, 1905.

PACIFIC MILL CO. ". INMAN.

80 Pac. 424.

CONTRACTS-INDEPENDENT SEPARABLE COVENANTS.

AFFIRMED.

1. Defendant lumber company contracted with plaintiff corporation to subscribe for a certain amount of its capital stock; to be paid for in lumber. Plaintiff agreed to increase its capital stock, to merge its existing business into the new business, to secure land for a lumber yard, to contract with a railway company for the delivery of lumber from a dock, and to secure bona fide subscriptions for a certain amount of its increased capital stock; such subscriptions to be paid in full in from one to four months. Held, that this latter agreement was independent and separable, so that strict performance of it was not a condition precedent to a right to maintain an action for failure of defendant to perform its contract.

CORPORATIONS-ADMISSION OF GENUINENESS OF STOCK SUBSCRIPTION. 2. Where defendant and plaintiff corporation entered into a contract which, among other things, required plaintiff to increase its stock, and to obtain subscriptions to a part of it, failure of defendant, on receiving a list

of the subscribers, to object to a subscription purporting to have been made by a corporation, was an implied admission that the subscription was genuine.

CORPORATIONS-IMMATERIAL DEFENSE TO ACTION OF DAMAGES FOR NOT TAKING SUBSCRIBED STOCK.

3. Where defendant and plaintiff corporation entered into a contract which required plaintiff to increase its capital stock and procure subscriptions for a part thereof, the alleged fact that money paid in by the subscribers to the additional stock issue was not used by plaintiff in accordance with its contract with its stockholders was no defense to an action on the contract of defendant to subscribe to the stock.

From Multnomah: ALFRED F. SEARS, JR., Judge.

Statement by MR. JUSTICE BEAN.

This is an action by the Pacific Mill Co. against Robert Inman and others, a corporation, to recover damages for a breach of a contract. The plaintiff is a Hawaiian corporation organized in 1900, with a capital stock of $12,000, and with power to increase the same to $50,000. The defendant is an Oregon corporation engaged in the business of manufacturing and selling lumber. In the spring of 1901, plaintiff, desiring to enlarge its business and to embark in the lumber trade, obtained from a local railway company an option on land for a lumber yard, and an agreement to transport lumber from the dock to the yard at a certain rate. It thereupon wrote to an agent of the defendant at Portland, with whom its officers had previously had some conversation concerning the lumber business, advising him that it had obtained an option for a lumber yard, and proposed increasing its capital stock to $50,000; the present stockholders to retain their $12,000, which was to be declared paid up; the remaining $38,000 to be subscribed for by parties in Honolulu and by the defendant, and to be "called for as the same may be needed." Upon receipt of this letter, defendant sent Mr. H. R. Duniway to Honolulu, with authority to cooperate with plaintiff in organizing and launching the lumber business as outlined in the letter referred to, if, upon investigation, he found it desirable, and conditions as reported by plaintiff. Mr. Duniway arrived at Honolulu about the 1st of August, and on the 3d of that month, acting for defendant, made and entered into the following contract with plaintiff :

"This Agreement made and entered into this third day of August, A. D. 1901, by and between Inman, Poulsen & Company, a corporation duly incorporated and existing under and

[23-46 Or.]

by virtue of the laws of the State of Oregon, and having its office and principal place of business in the City of Portland, in the said State, hereinafter called the party of the first part, and The Pacific Mill Company, Limited, a corporation duly incorporated under and by virtue of the laws of the Territory of Hawaii, and having its principal office and place of business in Honolulu, in the said Territory of Hawaii, hereinafter called the party of the second part.

"The party of the first part, its successors and assigns, in consideration of the sum of one dollar ($1.00) and the covenants and undertakings hereinafter set out in this agreement, do hereby expressly covenant, promise, and agree to subscribe for and accept $15,000.00 (fifteen thousand dollars) worth of paid-up shares of the capital stock of the party of the second part, and the said party of the second part hereby expressly covenants and agrees to accept in payment for said stock, Oregon pine lumber at the wholesale market and current prices to be fixed and mutually agreed upon subsequently.

"The said party of the second part, their successors and assigns, hereby expressly covenants and agrees that the party of the first part shall have the privilege and right to name and recommend one employee of the said party of the second part, and upon such naming and recommendation the person so recommended and named shall be elected a director of and in the Pacific Mill Company, Limited, and shall hold the office of secretary or manager of the lumber department of the said Pacific Mill Company. Limited, at a salary not to exceed one hundred and fifty ($150.00) dollars per month for the first year. and that he or his successor shall hold and occupy said office. "The parties hereto reserve the right to alter the amount of salary of the said person so appointed as aforesaid, and such compensation shall be fixed hereafter, subject to the success of the general business of the said Pacific Mill Company, Limited, while the party of the first part shall retain their interest in the said business and in the Pacific Mill Company, Limited, after the first year and upon the appointment of the person so named and recommended by the party of the first part after the expiration of the first year and the commencement of the second vear of the appointment as aforesaid. And the said party of the first part shall have the privilege of recommending and naming permanently said director who shall be appointed by the said party of the second part.

"It is also agreed that the said party of the first part hereby covenants and agrees that they shall invoice all lumber that they may ship to the said party of the second part, at the current