18. CONSTITUTIONAL LAW-WHAT ACTS MAY BE MADE
CRIMINAL.-The state may deprive a citizen of liberty or property
by "due process of law," which phrase is synonymous with "law
of the land." Hence the law of the land may expressly prohibit
and make criminal the doing of an act which, in the absence of
such law, would constitute a liberty or property right within the
meaning of the constitution, even though such act is not within
itself immoral. (Booth v. People, 229.)
19. A STATUTE DECLARING GRAIN OPTION CONTRACTS
TO BE GAMBLING CONTRACTS, and the making of them to be
a criminal offense, is not unconstitutional on the ground that it
fails to embrace all kinds of personal property. The act need not
embrace all contracts to buy or sell, but only all of such contracts
as lie at the root of the evil which threatens the public safety and
welfare; and when it does this, it does not deny to any person
the equal protection of the law. (Booth v. People, 229.)
SUCCESSION TAX.
See Taxes.
1. SURETYSHIP-FORTHCOMING BONDS.-If a claimant of
personalty levied upon is allowed to retain possession thereof upon
giving the officer a bond with surety conditioned "to have the said
described personal property forthcoming to answer the final judg
ment of the court," and the property is subsequently found liable,
the principal and surety are liable if they fail to comply with the con-
ditions of such bond, and are not relieved therefrom by afterward
delivering the property to the officer upon a regular forthcoming
bond given in another case arising upon the levy of a junior execu-
tion, and the fact that the plaintiff in the senior execution, after ob-
taining judgment on the first bond, does not seek to have the pro-
ceeds of the property sold under the junior execution applied to
the senior execution, or object to the application made of such
proceeds, does not afford sufficient reason for discharging such
surety on the trial of an appeal of a judgment against his princi-
pal and himself on the bond. (Reese v. Worsham, 109.)
2. SURETYSHIP-JUDGMENT AGAINST SURETIES-ELEC-
TION OF PROCEDURE.-A portion of the sureties upon a guard-
ian's bond who have paid a judgment against the guardian and
all of the sureties may enforce contribution from the remainder
of the sureties by proceeding against them in the manner pro-
vided by statute, or they may take a written assignment of the
judgment from the plaintiff therein upon payment thereof, and
enforce it in his name by execution against each of the other
sureties for his proportionate share of the debt. (Williams v. Riehl,
60.)
3. JUDGMENTS-JOINT DEBTORS-SATISFACTION.-The
mere payment of a judgment by one joint debtor does not operate
as an accord and satisfaction as to other joint judgment debtors,
unless it plainly appears that the payment was to have that effect.
This rule is here applied to cosureties. (Williams v. Riehl, 60.)
4. SURETYSHIP-CONTRIBUTION-INDEMNITY.-A
holding indemnity, who has paid the debt of his principal, can
maintain an action against his cosurety for the sum he is then
entitled to as contribution, regardless of the indemnity. (Williams
v. Riehl, 60.)
5. SURETYSHIP-CONTRIBUTION.—If a surety pays a judg-
ment against his principal and takes a written assignment thereof,
he can enforce it against any other cosurety only for his aliquot
part of the debt based on the whole number of sureties, and exe-
cution on such judgment cannot be allowed against any surety
for an amount in excess of his legal proportion of the debt. (Will-
iams v. Riehl, 60.)
SURETYSHIP—PRESUMPTION OF SOLVENCY.—In an ac-
tion by one surety to enforce contribution from his cosureties, it
is presumed that all of the sureties are solvent, and if some of
them are insolvent equity will place the burden equally upon the
solvent sureties. (Williams v. Riehl, 60.)
See Bonds; Officers, 4-7; Judgment, 2.
SURVIVORSHIP.
See Actions; Descent.
1. ESTATES OF DECEDENTS - COLLATERAL INHERI-
TANCE TAX-PERSONAL PROPERTY-CONFLICT OF LAWS.
Stocks and bonds of foreign corporations, including bonds secured by
mortgage, situated in one state, but owned by a resident of another
state, are for the purposes of taxation treated as having a situs at the
domicile of their owner, and upon the death of such owner are sub-
ject to the payment of a collateral inheritance tax imposed by the
law of the domicile. (Frothingham v. Shaw. 475.)
2. ESTATES OF DECEDENTS-CONFLICT OF LAWS-SUC-
CESSION TAX.-Legacy and succession duties as such are payable
at the place of domicile in respect to movable property wherever
situated, since the succession or legacy takes effect by virtue of the
law of the domicile. (Frothingham v. Shaw, 475.)
1. TELEGRAPH
NONDE-
LIVERY.-A telegraph company, which receives a message for de-
livery and fails to deliver it with reasonable diligence, becomes
prima facie liable, and the burden rests upon it of alleging and
proving such facts as it relies upon to excuse its failure. (Hen-
dricks v. Western Union Tel. Co., 658.)
2. TELEGRAPH COMPANIES-DELAY IN DELIVERY-LIA-
BILITY.-The failure of a telegraph company to deliver a message
within a reasonable time is equivalent to nondelivery, so far as the
principle of liability is concerned, although the length of the delay
may in certain cases affect the quantum of damages. (Hendricks ▼.
Western Union Tel. Co., 658.)
3. TELEGRAPH COMPANIES-RULES-NOTICE TO SENDER
OF MESSAGE.-A rule of a telegraph company relating to the de-
livery of messages, made without notice to those who are to be
affected by it, and which is not observed by the company itself,
affords no protection against liability for failure to deliver. (Hen-
dricks v. Western Union Tel. Co., 658.)
4. TELEGRAPH COMPANIES-NOTIFYING SENDER OF
NONDELIVERY OF MESSAGE-NEGLIGENCE.-It is the duty of
a telegraph company, in all cases where it is practicable to do so,
to promptly inform the sender of a message that it cannot be de
livered. A failure to do so is evidence of negligence, though it may,
not be negligence per se. (Hendricks v. Western Union Tel. Co.,
658.)
5. TELEGRAPH COMPANIES-LIABILITY FOR FALSE AS-
SURANCE OF DELIVERY OF MESSAGE.-Even if a telegraph
company is not guilty of negligence in failing to deliver a telegram,
this does not relieve it from liability for its negligent assurance that
it had been delivered. (Laudie v. Western Union Tel. Co., 668.)
6. TELEGRAPH COMPANIES-FALSE ASSURANCE OF DE-
LIVERY OF MESSAGE.-The assurance of a telegraph company,
false in fact, though not in intention, that a telegram had been
delivered, is actionable negligence, and the injured party can re
cover such damages as directly result therefrom. (Laudie v. West-
ern Union Tel. Co., 668.)
7. TELEGRAPH COMPANIES-DUTY-DELIVERY OF MES-
SAGE.-It is the duty of a telegraph company, in all cases when
it is practicable to do so, to promptly inform the sender of a message
that it cannot be delivered; a failure to do so is evidence of negli-
gence, though it may not be negligence per se. (Laudie v. Western
Union Tel. Co., 668.)
1. TELEPHONE COMPANIES-NEGLIGENCE-AUTHORITY
OF EMPLOYES.-If a telephone company knowingly permits its
employés over its own lines to make arrangements contrary to
instructions with customers, in ascertaining from such employés
the cost of delivery of a message beyond the terminus of the line,
and there collecting from the customer compensation for the entire
work, then the fact that under its arrangement with its employés
and distant operators they are to receive the pay for the delivery
beyond the terminus can make no difference, so far as the cus-
tomer is concerned, and the negligence of such operator, if proven,
is the negligence of the company. (Telephone Co. v. Brown, 906.).
2. TELEPHONE COMPANIES-AUTHORITY OF AGENT.-
No instructions of a telephone company to its operators, however
formal and peremptory, can prejudice the rights of a customer, if
it knowingly permits such agents to conduct its affairs upon a plan
in direct conflict with such instructions. The course of business
actually pursued by the company's agents with its knowledge is the
proper and legal criterion of its responsibility to its customers.
(Telephone Co. v. Brown, 906.)
3. TELEPHONE COMPANIES-DUTY TO DELIVER MES-
SAGES.-If a telephone company or its operator receives a message
for delivery beyond its terminus, the duty to deliver promptly is
absolute, and the operator has no right to speculate as to the proba-
ble effect of promptness or delay in delivering the message. (Tele-
phone Co. v. Brown, 906.)
4. TELEPHONE COMPANIES-DELAY IN DELIVERING
MESSAGE-DAMAGES.-In order for a father to recover for being
deprived of seeing his daughter before her death, caused by the
negligent delay of a telephone company in delivering a message
Am. St. Rep., Vol. LXXVIII-66
received for transmission, he must prove that he both could and
would have arrived and been with his daughter at the time of her
death if the message had been delivered promptly. (Telephone Co.
1. Brown, 906.)
1. DAY-COMPUTATION OF TIME.-A day,
tion of time, begins at 12 o'clock midnight and
twenty-four hours to the next 12 o'clock midnight.
364.)
in the computa-
extends through
(State v. Michel,
2. TIME-COMPUTATION OF SUNDAY.-If a limitation of
time is fixed within which a particular act or thing is to be done,
if done at all, after which performance would be without effect, and
if the time exceeds one week, an intervening Sunday is to be in-
eluded in the computation; if less than a week, Sunday is to be ex-
eluded. (State v. Michel, 364.)
3. TIME-COMPUTATION OF SUNDAY.—If_the_time stipu-
lated within which an act must be done does not necessarily include
Sunday, that day is excluded from the computation without express
mention of the fact. If the time stipulated must necessarily include
Sunday, that day is not excluded from the computation, unless
there is an express declaration to that effect. (State v. Michel, 364.)
4. TIME-COMPUTATION OF-SUNDAY.-If one of the five
days accorded the governor by the constitution in which to return
a bill to the legislature with his objections happens to be
Sunday, or a legal holiday, that day is not to be computed as one of
the five days. (State v. Michel, 364.)
5. CONSTITUTIONAL LAW-COMPUTATION OF TIME.-
Under a constitutional provision that if any bill passed by the legis-
lature shall not be returned by the governor "within five days after
it shall have been presented to him it shall be a law," the day on
which such bill is presented to the governor is not to be included in
the computation of the five days, but the last day of the specified
period is to be computed. (State v. Michel, 364)
1. TORTS.-LIABILITY OF TORT FEASORS for the same
tort is joint and several. They may be sued jointly or severally,
and judgment recovered against one of them remaining unsatisfied
is no bar to an action against the other for the same tort. (Grundel
v. Union Iron Works, 75.)
2. TORTS-LIABILITY OF TORT FEASORS.-In an action to
recover for death caused by the wrongful act of several defend.
ants, the fact that part of them availed themselves in a federal
court of the limited liability fixed by federal statute, and that
plaintiff appeared therein to claim damages, is no bar to his right
to maintain suit in the state court against the other tort feasors
while the action is pending in the federal court, provided he has
not received satisfaction in any form or amount. (Grundel v. Union
Iron Works, 75.)
See Infants, 1; Joint Liability, 1, 2
TRESPASS-CUTTING TIMBER-EVIDENCE-Evidence of
the purchase of timber from the person occupying the land, and
his declaration of his right to sell it, is admissible to show the good
faith of the purchaser, in an action against him by the owner to
recover the statutory penalty for cutting such timber. (Haley v.
Taylor, 549.)
2. TRESPASS-COTENANCY-DEFENSE COMMON TO ALL.
The right of cotenants to sue in trespass to recover the statutory
penalty for cutting timber on their land is joint, and whatever con-
stitutes a good defense as to one of them is good as against all
(Haley v. Taylor, 549.)
See Conflict of Laws, 2; Cotenancy, 2; Officers, 6.
1. TRIAL-WITHDRAWING JUROR.-The practice of with-
drawing a juror in a civil case for the purpose of postponing the
trial does not obtain in Oregon. (Usborne v. Stephenson, 778.)
2. TRIAL WITHDRAWING JUROR.-The only cause for with-
drawing a juror in a civil case is surprise on the trial, and a mo-
tion therefor cannot be based on matters happening prior thereto.
(Usborne v. Stephenson, 778.)
3. JURY TRIAL.-A jury has, in all cases, the constitutional
right to pass upon the weight and credibility of the testimony.
(Hendricks v. Western Union Tel. Co., 658.)
4. TRIAL-FACTS FOUND BY JURY-PRESUMPTION.-
Where issues of fact or questions of mixed law and fact are prop-
erly submitted, and there is conflicting evidence sufficient to go to
the jury, the court will assume as proved all facts found by their
verdict either directly or by necessary implication. (Laudie ▼.
Western Union Tel. Co., 668.)
See Instructions; Negligence, 10; Reference.
1. TRUSTS-TRUSTEE BARRED, WHEN BENEFICIARIES
NOT.-The doctrine that where the trustee is barred the beneficiary
is also barred does not apply where the trustee, who has a bare,
legal title, conveys such title to another, in accordance with a pro-
vision of the trust, and at his death there was nothing to descend
to his heirs. (Fleming v. Barden, 671.)
2. TRUSTS AND TRUSTEES-LIABILITY FOR PROFITS.—A
trustee is liable for all profits made on the trust funds in his hands,
and evidence is admissible to show that he loaned such trust funds
at a usurious rate of interest. (Teasley v. Bradley. 113.)
CONTRACTS-USURY-EXTENSION OF TIME.-The usuri-
ous payment of interest is a good consideration to support a contract
to extend the time of payment of a debt secured by a mortgage.
(Fleming v. Barden, 671.)
VACCINATION.
See Police Power, 4, 5.
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